The Court of Appeal will re-sentence a convicted fraudster after hearing that a judge gave her a suspended sentence because he was unhappy with the “complete and utter joke” of her early release on previous charges.
Jane Hyland BL, for the Director of Public Prosecutions, argued before the three-judge court that the one-year fully suspended sentence imposed on Emma Fehily (37) at the Circuit Criminal Court was unduly lenient.
She said Judge Sean O’Donnabhain had said that the basis for the non-custodial sentence was that he had previously sentenced Fehily to 30 months and in another case to 18 months but she served only five months of the first sentence and one month of the second.
Judge O'Donnabhain said at the time: "Sure what is the point? Limerick Prison is not taking any notice. First time, she is out after five months, second time she is in for one month – sentenced in February, out in March. It is a complete and utter joke."
Ms Hyland said the judge had made clear his unhappiness with the early release and had, “expressed the view that since the executive, the governor of Limerick Prison, had failed to take white-collar crime seriously, he was not going to impose a sentence that reflected the gravity of the offences.”
Counsel argued that judges must impose sentences within the parameters set by law and that Judge O’Donnabhain had given regard to matters outside his remit.
Fehily, from Fern Drive, Kilmoney, Carrigaline, Co Cork pleaded guilty in 2020 to two fraud offences for forging character references which had been given to Judge O’Donnabhain as part of her plea in mitigation following a previous conviction.
Fehily had previously pleaded guilty to 13 counts of theft totalling more than €25,000 from her employer Johnson and Perrot Garage in 2014 and 2015. On another occasion she pleaded guilty to 28 theft charges involving more than €34,000 when working at Westbourne IT Solutions in 2015 and 2016. She has further convictions for theft and deception at Rockwell Automation in 2017 and 2018.
Without evidence
Mr Justice John Edwards at the Court of Appeal on Thursday, said he has "no hesitation whatsoever" in saying that the sentence imposed was unduly lenient and outside the norm.
Mr Justice Edwards said he could not, however, resentence Fehily on Thursday because he wants her lawyers to provide evidence relating to claims they made that she suffers from depression, has self-harmed, twice attempted suicide and is under the care of a doctor.
Mr Justice Edwards said the defence had provided “not a scintilla” of evidence to support the claims. He added: “It’s not for counsel to give evidence. There has to be evidence for these to be taken into account in mitigation.”
Mr Justice Edwards said the practice of matters being put forward by counsel without evidence “has to stop”. He also complained that lawyers are regularly submitting documents to the appeal court one day before an appeal is due to be heard. “It’s not good enough,” he said, adding: “We are on a big drive to stop this. They should not be sent to us the day before the case.”
Mr Justice Edwards said that, while Fehily’s defence counsel had claimed there was “extensive mitigation”, the only real mitigation was Fehily’s early guilty plea. She had, he said, not been co-operative with gardaí initially and only revealed what she had done when pressed. She was “inclined to deny everything,” the judge said, and had a “very bad record and numerous relevant previous offences involving significant dishonesty.”
The judge also pointed out that Fehily had shown no remorse and the evidence from gardaí was that “the only remorse she ever shows is when she is caught.” “There was no extensive mitigation,” he said, “there was the guilty plea and that’s it.” He said he would give Fehily and her lawyers time to gather the relevant medical evidence before proceeding to resentence on July 26th. He also said that Fehily can take “no comfort” from the court’s decision to allow her to remain at liberty until then. He added; “The sole reason the court is taking this step is that it is easier to facilitate medical reports where a person is at liberty.”