A man has been spared jail for a second time over fraudulently claiming €167,000 worth of social welfare payments 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 Revenue. While auditing the company, Revenue discovered 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 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 15th, 2017.

‘Unduly lenient’

The Director of Public Prosecutions sought a review of Lawlor’s sentence on grounds 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 jugdment in the three-judge court on Tuesday, 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 Revenue. She informed 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 Revenue with the Department of Social Protection showed Lawlor was receiving a payment that required him to be living with his partner.

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

Lawlor also claimed Pre-Retirement Allowance, a benefit available to those over 55 who have left the workforce, despite 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.

Fallen into arrears

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 begun by the time he was convicted.

Lawlor co-operated with gardaí and entered an early guilty plea. He had raised €11,000 to repay the Department 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 Lawlor’s two sisters.

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 the Circuit Court judge erred in suspending the entire 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, it was argued.

General deterrence

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 Circuit Court judge “explained carefully” why she considered there were exceptional circumstances justifying her departure from the norm.

Referring to the circumstances of Lawlor’s sisters, he said: “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.