By Ruaidhrí Giblin

A man who escaped jail for fraudulently claiming €167,000 worth of social welfare payments has been spared jail a second time, despite an appeal by prosecutors to imprison him.

Gerard Lawlor (68) of Balrothery, Tallaght, in Dublin, had pleaded guilty at Dublin Circuit Criminal Court to 11 sample counts of stealing social welfare payments from the Department of Social Protection between 2005 and 2015.

The fraud was uncovered when Lawlor’s ex-wife was audited by the Revenue. While auditing the company, Revenue discovered that Lawlor had been claiming fraudulent payments from the Department of Social Protection since 2005. These included pre-retirement payments for himself and adult dependent allowances in respect of his ex-wife, the court heard.

The Circuit Court heard “very sad evidence” about Lawlor’s two elderly sisters. A probation officer had visited Lawlor’s family home and concluded that his partially disabled sister would not be able to care for their severely disabled sister without her brother's assistance. It was the factor that most pressed Judge Karen O’Connor to impose a wholly suspended three year sentence on June 15, 2017.

The Director of Public Prosecutions sought a review of Lawlor’s sentence on grounds that it was “unduly lenient”. However, allowing a wide margin of discretion to the sentencing judge, the Court of Appeal found no basis to intervene and the DPP’s appeal was dismissed.

Giving judgment in the three-judge court today, Mr Justice John Hedigan said the offences came to light after a dieting company owned and operated by Lawlor's former wife was audited by the Revenue. She informed the Revenue that she had been separated from Lawlor for five years and was treated as a single assessment for income tax purposes.

However, the computerised system connecting the Revenue with the Department of Social Protection showed Lawlor was receiving a payment that required him to be living with his partner.

It transpired that he was in receipt of Jobseekers Allowance, although it appeared he was in business until 2008. He was also receiving the Adult Dependence Allowance is respect of his former wife, despite not living with her and that she was receiving a separate income.

Lawlor also claimed Pre-Retirement Allowance, a benefit available to those over 55 who have left the work force, despite him being self-employed during some of this period.

He also received rent payments from the Department of Social Protection on behalf of tenants who lived in a property Lawlor co-owned in Ballycullen, Co Dublin.

Further investigation showed he sold and purchased properties during this period.

It was calculated that Lawlor fraudulently obtained €167,874 from the Department of Social Protection.

Lawlor, a father-of-three, who had no previous convictions, had been self-employed running businesses including a garage and repairs workshop. He had fallen into arrears in respect of the property he co-owned in Ballycullen and repossession proceedings had commenced by the time he was convicted.

He cooperated with gardaí and entered an early guilty plea. He had raised €11,000 to repay the Dept of Social Protection at sentence and was living on the State pension, reduced by €28.20 per week by way of repayment. He is recovering from prostate cancer.

Mr Justice Hedigan said the Circuit Court heard "very sad evidence" about how Lawlor's two sisters were both ladies of advanced years in poor health. One of his sisters, who is herself partially disabled, cares for her older sister who suffers from a severe intellectual disability and other ailments.

Lawlor provided home care support for both of them and the Circuit Court judge heard how "the younger sister could not manage" without him. This was detailed in a probation report based on a visit to the Lawlor sisters in their home.

Counsel for the Director of Public Prosecutions, Lorcan Staines BL, submitted that the Circuit Court judge erred in suspending the sentence in its entirety, that there had to be an element of custody. In a case of social welfare fraud, involving very large amounts over a long period of time, there had to be an exceptional reason for there to be no custody.

Mr Staines said the sentencing judge failed to adequately reflect the principle of general deterrence - to dissuade others from committing similar crimes - and denunciation - that a sentence should communicate society's condemnation of that particular offender's conduct.

Mr Justice Hedigan said the sentencing judge "explained carefully" why she decided to suspend the whole sentence. Most pressingly was the detrimental effect a prison sentence would have on Lawlor's two sisters.

Had the judge decided that "custody could not be avoided completely” or had she suspended part of the sentence, Lawlor may not have successful appealed, the judge said. But the question for the Court of Appeal was whether the sentence was so outside the norm that it could be regarded as not just lenient but unduly lenient.

Mr Justice Hedigan said the Circuit Court judge "explained carefully" why she considered there were exceptional circumstances justifying her departure from the norm. It was clearly based on extremely difficult circumstances of Lawlor's sisters.

"One is partially paralysed and cares very loyally but with great difficulty for her badly disabled older sister. The imprisonment of their brother who cares for them would almost certainly end, at the very least, the older woman's ability to live at home."

Allowing "as we must" a substantial margin of discretion to the sentencing judge, Mr Justice Hedigan, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Edwards, said the court could find no basis for intervening in the sentence and the appeal was therefore dismissed.