A serial fraudster who handed in fake references to a judge during her sentencing on theft offences also forged two more documents that have only now been discovered, the Court of Appeal heard on Monday.
Emma Fehily was initially given a fully-suspended sentence because the sentencing judge was unhappy with the "complete and utter joke" of her early release on previous theft charge
The Director of Public Prosecutions (DPP) had appealed the one-year fully suspended sentence imposed on Fehily (37) on the grounds of undue leniency. Fehily was sentenced to three-and-half-years' imprisonment on Monday with 18 months suspended for two years on two counts of forgery and two counts of attempting to pervert the course of justice.
Fehily, from Fern Drive, Kilmoney, Carrigaline, Co Cork pleaded guilty in 2020 to two fraud offences for forging human resource reports which had been given to Judge Seán Ó Donnabháin as part of her plea in mitigation following a previous conviction.
Theft charges
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.
Jane Hyland BL, for the appellant, the DPP, had told the Court of Appeal that Judge Ó Donnabháin had said that the basis for the non-custodial sentence from June 2020 was that he had previously sentenced Fehily to 30 months and in another case to 18 months for the thefts, but she served only five months of the first sentence and one month of the second.
Judge O'Donnabháin 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."
Last month at the Court of Appeal, Ms Hyland said the trial 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 Ó Donnabháin had given regard to matters outside his remit.
'No hesitation'
At that hearing, Mr Justice John Edwards at the Court of Appeal said he had "no hesitation whatsoever" in saying that the sentence imposed was unduly lenient and outside the norm.
Mr Justice Edwards said he could not, however, re-sentence Fehily then and there because he wanted 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."
On Monday, lawyers for Ms Fehily told the three-judge court that two further documents had been falsified by Fehily and discovered by her own defence team.
One document purported to be from a doctor, while a second was supposedly from a counselling service, both giving accounts of Ms Fehily's progress.
Sinead Behan BL told the court that when the two further documents were discovered by Fehily's legal team, the DPP was immediately informed.
Withdrawn
Ms Behan said that letters purportedly from a Dr Claire McCarthy and from Bridgewater Counselling, both from 2018, had been discovered to be false and were to be withdrawn and not to be relied upon by the respondent.
Counsel told the court that other reports and references were legitimate and included a different letter from Dr McCarthy.
Ms Behan said that both Dr McCarthy and Bridgewater have been informed and that neither wished to pursue the matter.
Counsel said that the documents had been prepared by Fehily at the time of her falsified HR references from 2018 and were not new materials prepared for the appeal hearing.
Mr Justice Edwards said the doctor's letterhead had been falsified in the production of the letter and that the matter was "very serious" in that it could be used to get prescription drugs.
Ms Behan said her client had not come to the attention of gardaí since the imposition of the suspended sentence, was in work, assisting in caring for a nephew and had a favourable probation report.
Legal team
Mr Justice Edwards said that it was not a matter where Fehily had put her hands up and it was only the diligence of her own legal team that made the discovery and informed the court.
The judge said he had no criticism of Ms Fehily's legal team and noted that the respondent had shown "little or no" remorse.
Mr Justice Edwards identified five years' imprisonment as a headline sentence for Fehily, who, he said, had 119 previous convictions, the vast majority of which were for theft.
Mr Justice Edwards said that the one-year suspended sentence was "seriously outside the norm" and that Fehily had a "very bad record".
He reduced the headline sentence to three-and-a-half years, taking into account that Fehily had signed early guilty pleas, suffered an anxiety disorder, was a gambling addict, that she hadn't come to adverse attention since and that there had been tragedy in her life.
The judge suspended the final 18 months of the three-and-a-half years. Fehily is to enter a bond to be of good behaviour while in prison and for two years after her release, for the duration of which she is to engage with probation services.
Mr Justice Edwards repeated that he had "no criticism" of Fehily's legal team who represented the respondent "very well" but that their lives had "not been made easy" by their client.
