Saturday 27 December 2014

Bank manager who stole almost €450k from clients has half his sentence suspended

Brian Kavanagh

Published 30/06/2014 | 17:32

File Pics  of ACC Bank
File Pics of ACC Bank

A bank manager who was jailed for four years after he stole nearly €450,000 from customers to pay off debts arising from unsuccessful investments in the property market has had half his sentence suspended on appeal.

In April last year Kevin Jarlath Mitchell (55) was jailed for four years by Judge Martin Nolan at Dublin Circuit Criminal Court after pleading guilty to ten sample counts of charges relating to stealing money from clients while he was a senior official at ACC Bank in Kilrush, Co Clare.

Mitchell, with a last address at Drimnagh Road, Drimnagh, pleaded guilty to charges of theft, obtaining cash and a cheque under false pretenses and falsifying a DIRT compliance certificate on dates between January 1993 and February 2012.

The court heard evidence that father-of-five Mitchell stole €197,000 from pensioner John Patrick Ryan after leading the man to believe that he had been depositing his cash in a high-interest account.

Mitchell also stole €250,000 from long-term friends and customers, Patrick and Susan Flanagan.

The court heard evidence that ACC bank fully reimbursed Mr Ryan and the Flanagans, while Mitchell surrendered effectively his entire pension fund, valued at €600,000, by way of recompense to the bank.

Returning judgement today, presiding judge Mr Justice Donal O’Donnell said the appeal court found that these were very serious offences, and in relation to Mr Ryan the matter was a repeated breach of trust not just of a client but of a friend, involving “considerable dishonesty”.

He said the court thought it important to observe that Mitchell’s surrendered pension entitlement could be considered near perfect restitution but not near perfect mitigation.

Mr Justice O’Donnell said that payment back of what was stolen could never be considered perfect mitigation as it was simply giving back what was taken. He said this could give rise to the perception that all that was necessary was to pay back the money and no adverse consequences would follow, although nothing could be further from the case.

When a person abuses the trust of another over an 18-year period, such a person must expect that they will go to jail, Mr Justice O’Donnell said. He said that restitution was only one component of the matter that could be taken in to account.

Mr Justice O’Donnell said the court had regard to submissions that the appellant did not appear in danger of re-offending, had made admissions when confronted by his employers, had come before the court on signed pleas of guilty and had made substantial restitution.

The judge said the end result was that Mitchell had destroyed his life as he had lost his job, his marriage and the prospect of a comfortable retirement, while he had also experienced jail.

Having taken all matters in to account he said the court had come to the decision that some modification of the sentence was appropriate, and accordingly would suspend the last two years of the sentence on condition that Mitchell enter a bond to be of good behaviour and keep the peace.

After the court had risen Mr Mitchell hugged his barrister and members of his family who had attended the appeal.

Moving the appeal, Mr Patrick McGrath SC told the court that a unique feature of the case was that Mitchell had surrendered effectively his entire pension fund, valued at €600,000, by way of recompense to the bank.

He submitted that the substantial, unusual mitigation and restitution offered by Mitchell not only made good the losses arising from his actions but effectively left him and his family in a state of destitution.

 Before he went to prison, Mr McGrath said, his client was a respected member of a community, but as a result of these matters he found himself living in a bedsit on social welfare. Counsel said Mitchell’s wife had commenced divorce proceeding and he had “lost everything”.

Mr McGrath submitted that the trial judge did not take sufficient account of the substantial efforts to make good the damage Mitchell had caused.

He submitted that it was in the public interest that the early admissions, assistance given to ACC Bank and most importantly the substantial restitution given by Mitchell were recognised.

Counsel said the court should encourage persons to cooperate, and the best way to encourage them was to offer some substantial discount on the sentence.

Mr Paul Carroll BL, for the State, had submitted that it could not be said the sentence imposed was outside the appropriate range and an error in principle had not been identified by Mr McGrath.

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