Breifne O’Brien loses appeal against deception sentence

Former businessman Breifne O’Brien has lost an appeal of 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 €8.5 million between 2003 and 2008.

He was sentenced to seven years imprisonment by Judge Patricia Ryan on October 8th, 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 on Monday, 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 psychologists 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 rahabilitation had already occured by the time he was sentenced six years after the offending ceased, Mr Justice Sheehan said.

Rehabilitation

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 occured 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 assitance from courts in Italy, Monaco, Germany and the UK and the arranging to have Embassies in Dubai and New York “on standby”.

Devastating effect

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 orders 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.

O’Brien made no reaction when the judgment was delivered.