Breifne O'Brien loses appeals against seven year sentence for €8.5m fraud
Published 21/12/2015 | 11:50
Former businessman Breifne O'Brien has lost an appeal his seven year sentence for inducing others to advance millions of euro to him for investment in bogus property deals.
The 54-year-old, with an address at Monkstown Grove, Monkstown, Co Dublin, had pleaded guilty at Dublin Circuit Criminal Court to 14 sample counts of making a gain or causing a loss by deception or theft of around €8.5m between 2003 and 2008.
He was sentenced to seven years imprisonment by Judge Patricia Ryan on October 8 2014.
O'Brien moved to appeal his sentence last month on grounds that the judge failed to adequately address the public interest in rehabilitating him and failed to have sufficient regard to various mitigating factors in his favour.
Dismissing his appeal today, Mr Justice Garrett Sheehan said adequate consideration was given to the mitigating factors and while the sentence was substantial, the judge was correct in identifying seven years as an appropriate one.
Mr Justice Sheehan said this case was significantly different to the vast majority of cases that come before the Court of Appeal.
O'Brien did not suffer from any known addiction. Had he suffered from an addiction, he would have been unable to commit these crimes because they required the injured parties to place great trust in his integrity and investment skills.
A psychologist’s report submitted on his behalf described his motivation as being akin to gambling but did not suggest any addiction apart from a desire to impress others and that he was highly unlikely that O'Brien will reoffend in the future.
Although the sentencing judge did not specifically say so, she was entitled to take the view that his rehabilitation had already occurred by the time he was sentenced six years after the offending ceased, Mr Justice Sheehan said.
O'Brien's rehabilitation was a matter of mitigation rather than something which needed to be factored into the sentence in a separate way, Mr Justice Sheehan said.
He had further appealed his sentence on grounds that the judge did not have adequate regard to the mitigating factors such as his lack of previous convictions, his guilty plea, the remorse shown, the level of his co-operation, the loss of social standing, adverse publicity and the efforts he made to recompensate the injured parties.
Mr Justice Sheehan said the principle mitigating factors were O'Brien's plea and the fact that he had no previous convictions.
“These matters were taken into account by the sentencing judge,” Mr Justice Sheehan said.
He said the level of reduction a guilty plea generally merited depended on its timing.
In this case not only was the plea received “late in the day”, it occurred at a time when six weeks of court time had been set aside and a significant amount of preparation had taken place.
This included the obtaining of mutual assistance from courts in Italy, Monaco, Germany and the UK and the arranging to have Embassies in Dubai and New York “on standby”.
It was clear, Mr Justice Sheehan said, that the offences have had a devastating effect on O'Brien resulting in the loss of his marriage and family. He has suffered public disgrace and humiliation and his life has effectively been on hold since 2010.
Nevertheless, the fact remains that the offences were “particularly serious”. Significant garda resources were deployed requiring 42 separate ordered from the District Court authorising the disclosure of financial records and the analysis of numerous bank accounts held in six financial institutions in this jurisdiction.
“It goes without saying that this type of offending damages the trust necessary to enable the business community to function fairly and effectively”.
Adequate consideration was given to the mitigating factors, Mr Justice Sheehan said, and while the sentence was substantial, the sentencing judge was correct in identifying seven years as an appropriate one.
Accordingly, Mr Justice Sheehan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, dismissed the appeal.
Wearing a navy suit, grey tie and black shoes, O'Brien made no reaction when the judgment was delivered.
Counsel for O'Brien, Patrick McGrath SC, said that apart from oblique references in the sentencing judge's remarks, she did not appear to have adequatly weighed various mitigating factors in O'Brien's favour such as his lack of previous convictions, his guilty plea, the remorse he showed and his level of co-operation.
Nowhere in the judge's comments was there any reference to his family circumstances and his loss of social standing. Mr McGrath said.
Submitting a document containing various newspaper reports, Mr McGrath said the “notoriety” that had been occasioned on O'Brien should have been taken into account.
O'Brien had become a “social pariah”, Mr McGrath said. He was portrayed as a man who represented the worst excesses of the Celtic Tiger and there was “almost a rejoicing” at his downfall.
The adverse publicity surrounding O'Brien was summed up by President of the High Court Mr Justice Nicholas Kearns when, in putting a stay on proceedings to allow for “the fade factor”, said there appeared to have been an element of 'gloating' about O'Brien's situation, Mr McGrath submitted.
He was referred to as the 'Irish Bernie Madoff', Mr McGrath said, which was, in his submission, “unprecedented” of anyone reported upon during the financial downturn.
This public humilation was a feature which ought to have been taken into account, Mr McGrath said.
Counsel further submitted that O'Brien's attempts at restitution should have been taken into account.
In so far as he could, Mr McGrath said O'Brien had made restitution.
O'Brien wished to draw the court's attention to an Irish Times article in May of this year, Mr McGrath said, in which a certain asset was listed as hoping to achieve a higher value than had been initially believed.
There was no doubt that O'Brien had done all that he could to make all of the money available, Mr McGrath said. He had signed all documents upon request and had expressed a certain frustration at the slow pace at which matters were being formalised.
Counsel submitted that there was little or no reference by the sentencing judge to the efforts O'Brien made to gain insight into his offending behaviour.
In summary, Mr McGrath said some matters simply weren't taken into account by the sentencing judge and other matters ought to have been given greater weight in O'Brien's favour.
Counsel for the Director of Public Prosecutions, Kerida Naidoo SC, said the facts were that €8.5 million had been “stolen” and some €420,000 returned.
Mr Naidoo said O'Brien appeared to have put in place efforts for a larger amount to be repaid but the reality was no further restitution had been made.
Mr Naidoo agreed that O'Brien had in effect “fallen from a great height”, as had just been submitted on his behalf, but that height was “based on money that was stolen” and once his crimes were uncovered his “lifestyle was inevitably going to collapse”.
O'Brien was in a different situation to somebody who had suffered dire consequences as a result of a single error of judgment, Mr Naidoo said.
That “hypothetical man” could say his single incident of offending was out of character but O'Brien had been offending for six years on a “complex web of deceit”, Mr Naidoo said.
Much of the money was going back into the “ponzi scheme” but money was also going to “fund his lifestyle”, Mr Naidoo said, and the consequences he suffered were a direct result of his offending behaviour being “found out”.
Mr Naidoo said media reports about O'Brien were little more than factual reports of what happened.
He had maintained a lifestyle founded on deciet, which ended when the deciet was found out, he said.
It was difficult for O'Brien to say he had a wholly unblemished records when the offending had been going on for so long and involved a breach of trust, Mr Naidoo said.
Mr Naidoo said O'Brien came before the court claiming he was “wholly rehabilitated” and, taking him on his own submission, it was not necessary to structure his sentence to facilitate further rehabilitation.