Court of Appeal reduces sentence of fraudulent insurance salesman

About this case:

• Judgment:
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Mr Patrick Walsh was working as a self employed agent selling life insurance policies for Canada Life.

He fabricated new policies in order to obtain commission from the company, setting up direct debit payments from the accounts of genuine existing policy holders.

The approximate loss to Canada Life was €215,000. None of the customers in question ultimately lost their money.

It was noted that the appellant had been very co-operative from an early stage, and had explained that he had committed the offences due to personal financial difficulty.

On being discovered, he had originally offered to repay the money.

When he was unable to do so, Canada Life then reported the matter to the gardaí.

Mr Walsh appealed his sentence on the following grounds:

First, that insufficient weight was attached to the appellant’s significant co-operation in the investigation of the matter, his plea of guilty, and the assistance provided by him in the course of that investigation.

Second, that the sentencing judge failed to have sufficient regard to the fact that the appellant had no previous convictions, was unlikely to re-offend, and that the offences had the hallmark of being once off.

Third, that the sentence offended against the principle of proportionality.

While the sentencing judge had acknowledged many of the mitigating factors, he had also identified the aggravating factors as a breach of trust as between the appellant and Canada Life, and the manner and the extent to which he abused his customers.

The sentencing judge also refused to suspend a portion of the sentence, stating that:

“I am imposing this sentence substantially for punishment in this case, and to some degree… lesser degree, for deterrents, but punishment. This man abused his position and stole a huge amount of money over a long period of time.”

Counsel for Mr Walsh argued that the learned sentencing judge did not attach proper or sufficient weight to the fact that the appellant’s early plea of guilty and his immediate co-operation avoided the necessity and cost of what was likely to have been a complex and lengthy trial, as is commonly the case with fraudulent crime.

It was also suggested that a decision to suspend the entire or most of the two and a half year sentence would not have constituted an error of principle.

The Court of Appeal considered its very recent decision in DPP v. Martin Reilly, delivered on 19th February 2016.

That case also concerned serious fraudulent activity by a tied agent of Canada Life. The accused in that case received a sentence of four and a half years, and this was upheld by the court.

However, it was noted that in Reilly the loss involved was close to €1m. and the fraudulent activity was undertaken over a number of years in order to feed a serious gambling addiction. The targets of the fraudulent activity were eighteen individuals, including one to the extent of €400,000.

This was compared to the current case, in which the amount was smaller, the fraud was operated over a shorter period of time and was not primarily aimed at defrauding individuals.

The Court of Appeal also noted that the appellant’s relationship with his then partner broke up following his exposure in relation to his involvement in this matter. It was noted that he had suffered, and would continue to suffer, enormous shame because he resides in a rural community. Also, as a young man, his employment prospects have been greatly undermined.

It was also observed that Canada Life may have been prepared to overlook referring the matter to the gardaí if he had repaid almost €200,000 to them.

As the sentencing judge had not identified the appropriate sentence before allowing for reduction for mitigating factors, the Court of Appeal could not determine the extent to which mitigating factors had been given consideration.

However, the Court of Appeal expressed concern that the sentencing judge did not attach sufficient weight to the mitigating factors when taking together and to this extent erred in principle.

As a result, it was necessary to re-sentence the appellant. It was noted that the appellant had done well and used his time in prison sensibly, and credit was given to him for having so done.

Thus, the Court suspended the final ten months of the two years and six month sentence, being one third of that sentence, for a period of two years from the date of his release, on condition that he enter into a bond in the sum of €100 to keep the peace and be of good behaviour.