Court of Appeal: ATM thief’s prison sentence was not unduly lenient

About this case:

• Citation:
  [2026] IECA 129
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Alexander Owens

Delivering judgment for the Court of Appeal, Mr Justice Alexander Owens opined “the view of any other court on the sentence which ought to have been imposed by the learned sentencing judge does not become relevant unless the Director of Public Prosecutions has persuaded us that she crossed the threshold into undue leniency. We were not persuaded of that.”

Background

The respondent was born in June 1992. He was one of a gang of three thieves caught by Gardaí near an AIB ATM machine in Stillorgan, Dublin on 12 July 2024. The gang had placed a cash-trapping device on the ATM and waited whilst members of the pubic attempted to use the machine to withdraw cash.

The group’s modus operandi was to go back to the ATM and to steal cash which had been intercepted by their device, which had damaged the machine.

At the time of those offences, the respondent had 124 previous convictions, most of which concerned deception, theft, money-laundering, criminal damage and use of false instruments, and he had been released from prison for fraud and dishonesty offences just 8 months prior.

Before the Circuit Court, the respondent pleaded guilty to participating in the activities of a criminal organisation at the AIB ATM in Stillorgan, contrary to s.72(1)(a) of the Criminal Justice Act 2006, to criminal damage to a cash dispenser contrary to s.2(1) of the Criminal Damage Act 1991, to the dishonest appropriation of cash contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and to the dishonest appropriation of property at an AIB ATM in Dún Laoghaire contrary to s.4 of the 2001 Act.

At sentencing, the Circuit Court took a number of other offences into consideration. The respondent received concurrent terms of three years’ imprisonment for each of the offences to which the respondent pleaded guilty, reduced from four years in each case to give him credit for his plea and his limited mitigating factors.

Before the Court of Appeal, the DPP contended that the sentences imposed upon the respondent were unduly lenient.

The Court of Appeal

Mr Justice Owens outlined that the DPP was required to show that the sentence passed by the Circuit Court was so lenient as to significantly depart from the range of acceptable sentencing outcomes, such as would justify intervention by the Court of Appeal.

Having regard to the circumstances, the judge opined that there was no doubt that the Circuit Court acted within its discretion in imposing sentences of 3 years’ imprisonment, though would have been justified in imposing a more severe sentence in light of the fact that the respondent was again committing offences involving fraud and dishonesty so soon after his release from prison.

Noting that “this does not of itself render the sentences unduly lenient”, the court explained that the elements of the offence at the AIB ATM machine in Stillorgan were knowledge of the existence of a criminal organisation, an intention to enhance the ability of that organisation to commit the offence of criminal damage to the machine, and participating in, or contributing to, an activity constituting an offence or offences with that intention. 

The Court of Appeal was not satisfied that the offending in the respondent’s case was comparable to the conduct in the cases advanced by the DPP, People (Director of Public Prosecutions) v. Aylmer [2020] IECA 106 and People (Director of Public Prosecutions) v. Daniel Munteanu [2022] IECA 62.

Mr Justice Owens recounted that in Aylmer, the offender provided material aid to a criminal gang who were plotting a gangland murder by his provision of burner-phones used to co-ordinate their activities, and that while Munteanu involved participation of the defendant in ATM fraud and related activities similar to those of the respondent, the criminal enterprise in Munteanu extended to multiple locations, was of much longer duration and caused much greater losses.

Finding that in the case before the court, the offence of participating in the activities of a criminal organisation did not significantly increase the overall gravity of the offending as most of the respondent’s ‘participating’ actions were already captured by the charges of possessing the cash-trapping device with intent to commit theft, dishonest appropriation of cash and criminal damage, Mr Justice Owens was satisfied that this aggravating feature could have been fully reflected in the sentences for those offences.

The judge considered that the headline sentences selected were lenient, particularly in light of the respondent’s extensive criminal record, and that the court could have selected higher headline sentences “to reflect this aggravating factor and the objectives of specific and general deterrence” and might also have considered making a recommendation pursuant to s.3(2)(b) of the Immigration Act 1999 that the respondent be deported after serving his sentence. 

Notwithstanding, Mr Justice Owens highlighted that “the view of any other court on the sentence which ought to have been imposed by the learned sentencing judge does not become relevant unless the Director of Public Prosecutions has persuaded us that she crossed the threshold into undue leniency. We were not persuaded of that”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Director of Public Prosecutions v Calin Scintei [2026] IECA 129