COURT OF CRIMINAL APPEAL JUDGMENT: DPP -V- PAUL MURRAYNeutral Citation [2012] IECCA 60
COURT OF CRIMINAL APPEAL
Judgment was delivered on February 27th, 2012, by Mr Justice Finnegan, Mr Justice Moriarty and Mr Justice Hogan concurring.
JUDGMENT
An appeal against a cumulative sentence of 12-and-a-half years for “an elaborate and sophisticated” social welfare fraud of €249,000 was upheld, and a sentence of nine years substituted, with one year suspended.
BACKGROUND
The appellant, a former carpenter, is now 63 years old. Since 1995, he has lived mainly in Thailand with his partner. The fraud, developed over a number of years, involved making claims for jobseeker’s allowance, disability allowance and supplementary welfare allowance in the names of different identities, mainly members of his family.
The fraud came to light when staff at the Passport Office received an application from Canberra, Australia, for a passport in the name of his younger brother. A passport bearing those details had been issued in 2005. This application bore the photograph of the applicant, who already had a valid Irish passport.
It then emerged that he had been receiving disability allowance in the brother’s name. An examination of the records of the Department of Social Protection showed that payments were made into several bank accounts under different names, generally those of family members.
The man was arrested in October 2010 when a search of his van revealed a large quantity of false identity documents, including a false British driving licence and passport, purchased in Thailand on the black market.
He had also obtained three different medical certificates from three different doctors relating to an injured arm, using different aliases, and made three claims for disability benefit.
He made admissions to the Garda and pleaded guilty at a relatively early stage following his arrest. He received three years’ imprisonment for having a false passport and 25 consecutive six-month sentences for 25 sample counts of fraud, the first six to run concurrently with the passport sentence. His counsel argued that the overall effect of this was so severe that it broke the totality principle and was disproportionate to the moral delinquency of the offence.
DECISION
Mr Justice Finnegan agreed and said a sentence of this gravity is generally reserved for serious offences against the person such as manslaughter, rape, serious assault, aggravated burglary or false imprisonment. Such offences against the person involve an affront to human dignity, a violation of the integrity of the person or of the dwelling, and a violation of constitutional rights.
However, offences involving public revenue are not victimless crimes as they strike at the heart of equity, equal treatment and social solidarity. This is especially so at a time of emergency so far as the public finances are concerned, he said.
The current crisis calls for a high level of social solidarity. Widespread tax evasion by the wealthy and well-to-do can threaten social solidarity and thus the very stability of the State itself. Social security fraud impacts heavily on those who are most in need, sapping public confidence in the system and eroding the sums available for those genuinely reliant on such payment.
The appellant’s widespread, persistent and systematic fraud of the social security system was gravely wrong, and the sentence must reflect this.
In cases involving the public purse, deterrence is an important part of the sentencing process. Some element of severity is necessary to ensure that taxpayers will pay the State what has been deemed by law to be properly due and that public support for the needy will not be undermined.
The court therefore suggested for the future guidance of sentencing courts that systematic and significant tax evasion or social welfare fraud should generally meet with an immediate and appreciable custodial sentence.
While the sentence in this case breached the totality principle, the appellant’s culpability was considerable. The fact that he stole the identities of his siblings was an aggravating factor, as were a previous conviction for social welfare fraud in Britain and the falsification of official documents.
The sentence should therefore be of nine years, with one year suspended for his guilty plea and co-operation with gardaí.
The full judgment is on courts.ie
Stephen Byrne BL, instructed by Mooney & Dowdall, Mullingar, for the appellant; John Hayden BL and Patricia McLaughlin BL, instructed by the Chief Prosecution Solicitor, for the DPP