Judge Keenan Johnson's sentencing judgement in major Laois social welfare fraud case

The accused has pleaded guilty to a number of sample charges of theft and larceny relating to the claiming of her late father-in-law's pension over a period in excess of 28 years, which resulted in a loss of €271,046.20 to the state. Each of the offences carries a maximum penalty of up to 10 years in prison.

This is quite an extraordinary case and the background of it relates to the late John Bergin who was the father-in-law of the accused and who died over 30 years ago in November of 1993. It appears that when the late Mr. Bergin died no effort was made to register his death.

Accordingly, he continued to receive the old age pension despite his demise and the accused who originally had authority from the late Mr Bergin continued to draw that pension after his death and did so for a period of over 28 years until she was caught in 2022. The issue only came to light when an amateur genealogist by the name of Mr McCoy was undertaking research and discovered that there was a person purportedly living in Laois by the name of John Bergin who was reputedly 110 years of age. Mr McCoy was surprised that he had never heard of the deceased and his suspicion was aroused that it might be a possible pension fraud, accordingly he contacted Aras An Uachtarain to inquire about their records relating to the Centenarian Bounty.

Garda Peter Cosby the investigating officer told court that Áras An Úachtráin keeps a register of all recipients of the Centenarian Bounty of €2540 and issues a unique centenarian coin for every birthday after they become centenarians.

The Department of Social Protection was also contacted and its inspectors decided to make a visit to see Mr. Bergin. The court had evidence that the social welfare inspectors were frustrated in their efforts to interview the late John Bergin. The accused deliberately attempted to dissuade welfare officers from carrying out an inspection. On one occasion the department were advised by the accused that the arranged visit was not suitable because Mr Bergin was unwell.

Subsequent to this the department officials decided in April of 2022 to make an unannounced visit to the late Mr.Bergin. When they arrived at the accused's house they were left waiting and were told by the accused that the late Mr. Bergin did not want to be disturbed. Subsequently, they were introduced to a man in bed purportedly the late Mr Bergin with a pair of shoes on him. It appears the accused told the social welfare officers that he was deaf and confused. It subsequently transpired that the man in the bed was the husband of the accused.

Ultimately, the guards discovered the burial place of the late John Bergin and subsequent to this they got a search warrant for the accused's house. In the course of the search, they found a bag with silver centenarian coins, the centenarian bounty cheque for €2540 and An Post receipts for the state pension as well as mass and memorial cards for the late Mr Bergin.

The accused was invited to attend the Garda station but appears to have been reluctant to do so and in September of 2022 she was arrested at her home. In an interview with the guards, she was cooperative and did not deny that she had claimed the pension falsely or that she had signed documents in the name of the accused. She told the guards that she did not know when to stop. She also acknowledged that when the department officials called it was her husband Seamus that was in the bed purporting to be his late father.

This is an extremely serious case of theft and fraud resulting in a huge loss to the state. The social welfare system is built on trust and is there to ensure that those who deserve help and assistance from the state receive it. The actions of the accused were clearly premeditated because the death of the late John Bergin was never registered.

It is clear that there were repetitive deliberate and conscious efforts by the accused to defraud the state and that adds to her culpability and the gravity of the offending. It is fair to say that the social welfare system is the cornerstone of a civilized society and is an effort to ensure that no member of society should become a victim of poverty.

It is designed to ensure that those most in need have the minimal provisions for a good life. Unfortunately that does not always transpire, but nevertheless the social welfare system is a protection for the most vulnerable in society and accordingly it is essential that its integrity is maintained. By engaging in the type of criminal activity to which the accused has now pleaded guilty, she has conscientiously and systematically defrauded taxpayers to the tune of €271,046.20. She has also seriously undermined the reputation of the social welfare system by exploiting and exposing its vulnerabilities.

The court is relieved to note that since this case came to light, the Department of Social Protection has introduced much more rigorous controls for the protection of the taxpayer especially in respect of claimants who are over 90 years of age. Under the old system a declaration was sent on an annual basis for signature by the claimant and the accused signed those declarations by forging the signature of the late John Bergin to each of those declarations.

Accordingly, every single year that the fraud went on, the accused actively perpetuated the fraud by forging the signature of the deceased. There was also evidence that the accused had forged the signature of the deceased to fuel allowance forms.

In determining sentence in this case the court has to take into account all of the aggravating factors and all of the mitigating factors. In addition to that the court must impose a sanction that is fair and proportionate and reflects the gravity of the offending and the culpability of the accused. The court must also be mindful of the five pillars of sentencing namely protection of the public, punishment, deterrence, restitution and rehabilitation.

The court is also obligated to send out a clear message that people who engage in the type of activity to which the accused has pleaded guilty, can expect a significant sanction not only to punish them but also to deter others from engaging in such criminal behavior. Theft from the social welfare system is a crime that adversely impacts on all of society and deterrence has to be a significant consideration when structuring sentence so as to ensure that the social welfare system is protected and can be applied for the benefit of those most in need.

Aggravating factors

The length of time over which the fraud was perpetrated is a hugely aggravating factor. This fraud went on for a period in excess of 28 years resulting in the huge loss of €271,049.20 to the taxpayer.

It is clear that the actions of the accused were planned and premeditated.

The non registration of the late John Bergin's death is evidence of this. Furthermore the annual completion of a statement of life in respect of John Bergin which was fraudulently signed by the accused perpetuated the fraud and was clearly undertaken by the accused in the full knowledge that what she was doing was blatantly wrong and amounted to theft.

The efforts made by the accused to hide the crime when the department came to investigate and her lack of cooperation with the guards and the department in the initial stages of the investigation are further aggravating factors.

Mr Colgan counsel for the accused says that she found herself in a hole and kept digging deeper. The court does not accept that proposition as as it was open to the accused at any time to make a voluntary disclosure in relation to her actions and to set in train a schedule for repaying the funds that had been stolen. Instead of this she continued not only to illegally claim the pension but to continue spending it.

The effect of the offending on the taxpayer and the general operation and integrity of the social welfare system is a further aggravating factor. The Irish Republic prides itself as being a welfare state which endeavours to protect the most vulnerable in society. The actions of the accused were an attack on the fundamental values of integrity and honesty which the Department of Social Protection relies on in order to administer social welfare in as fair and as equitable a way as possible.

The failure to make full restitution for the losses sustained by the state is a further aggravating factor. It is somewhat ironic that the accused now claims her sole source of income is her old age pension. This is a pension drawn from the same social welfare fund that the accused stole from for over 28 years.

Mitigating factors

The plea of guilty has saved the state the time cost and expense of a criminal trial and as such is worthy of mitigation. Had this matter proceeded to trial it probably could have taken a number of weeks because of the complexity of the charges and the necessary proofs that would be required to prosecute them.

The cooperation afforded by the accused in the later stages of the investigation did assist in the successful prosecution of the case although it has to be said that the evidence against her was overwhelming.

The court has been told that the accused acted independently and that none of her family were aware of what she was doing. I have to confess that I find this hard to believe particularly as her husband Seamus impersonated his late father in order to deceive the inspectors from the department. I cannot believe that correspondence which had been received at least annually in the name of John Bergin could not have been seen by other members of the household particularly the correspondence and centenarian coins from Aras An Uachtarain which would have been unique and noticeable.

In addition to this another flag to the members of the Bergin household had to be the fact that the late John Bergin's fuel allowance was being claimed despite his demise. I cannot help but feel, despite her assertions to the contrary, that Mrs Bergin has allowed herself to be offered as a sacrificial lamb for the offending and that full responsibility does not rest exclusively with her. In any event there can be no doubt but that she is the prime offender and has pleaded guilty to the charges and accepts that she knew exactly what was going on and willingly engaged in it.

It is noted that the accused is over 73 years of age and has no previous convictions. She has a good work history and she has raised her children and given them an education. The court has been told that the family farm of 99 acres was transferred to her son in 2018 and that she has little by way of assets which can be offered as reimbursement to the state

In her interactions with the probation officer the accused showed good insight into her offending. She expressed great shame and embarrassment and stated that she would have to live with that for the rest of her life. She expressed regret for not addressing her offending behaviour shortly after realizing that she had commenced her offending she explained that she was fully aware of the negative impact her offending had brought on her immediate family, extended family, the community and the state.

She acknowledged that she had access to a significant amount of money to which she was not entitled, for a prolonged period of time. She stated that she was open to exploring long-term restitution options with the court. She advised that she was fully aware of the seriousness of the offences and she knew that she could potentially incur a custodial sentence as a consequence of her offending. She expressed concerns about her ability to cope in a prison setting due to her ongoing health issues.

The court has also been furnished with a letter written by the accused in which she apologises for her offending behaviour. She states that she is deeply sorry for what she has done and she feels ashamed embarrassed and frightened and has at times felt like taking her own life. She begs and pleads that the court shows as much mercy as it can. It appears that the accused had a heart attack in 2011 and was diagnosed with cancer five years ago.

The court has been furnished with a letter from the accused's GP Dr. Booth indicating that she has a history of severe florid thyrotoxicosis which has been difficult to control. She also has severe chronic airways disease which results in frequent respiratory infections and chronic dyspnea (shortness of breath). In addition to this she also has nodules on her lungs and ischaemic heart disease.

Dr Booth says that as a result of her various ailments the overall health of the accused is very precarious and that she is suffering from chronic low mood over the past number of months and has difficulty coping with her condition. He goes on to say that any deterioration in her current circumstances would significantly and adversely affect her overall health and likely result in significant deterioration and significantly increase her risk of an adverse event in the future.

Mr Colgan counsel for the defence has advised that since this case came to court the accused has lost many friends and has been ostracised in the local community. The court has been advised that many family members including a brother and child have cut off all contact with her because of her offending. Mr. Colgan has stated that because of embarrassment, shame and ostracization the accused is confined to her house as a result of the offending and to an extent suffers the same restrictions as if she were in jail.

The probation report has assessed the accused at low risk of reoffending. The age of the accused and her health are factors that the court must take into account when structuring sentence. The incarceration of the accused will separate her from her family and that is a significant punishment in and of itself.

According to the submissions made by the defence the stolen funds were used for shopping and food and by extension for the benefit of the family. If that is the position then the family has benefited from stolen funds. In those circumstances the family should be assisting the accused to make full reimbursement. I am told that as a result of the efforts of her son, her husband and herself a figure totaling €75,000 is available for immediate payment to the state in partial reimbursement for the money stolen. This still leaves a considerable shortfall of €191,046.20.

No feasible proposals for discharge of this amount have been put forward save the offer of €50 per week which is wholly and utterly inadequate. I fail to understand why a portion of the family farm could not be sold or alternatively the farm could be mortgaged in order to finance the reimbursement. I have been told that the farm cannot be sold because it is subject to a possible compulsory purchase order in respect of a road construction project. I find it hard to believe that the entire 99 acres could be subject to such a restriction and even if it is subject to such a restriction, significant and substantial compensation would be paid in the event that the property is compulsorily acquired.

Accordingly, it seems to me that the family has the capacity if it wants to, to ensure that there is full reimbursement to the state. There is little doubt but that the family farm was a matrimonial asset in which the accused had after 40 years of marriage as a housewife and a homemaker a beneficial interest in, before it was transferred to her son in 2018. It seems clear from the evidence that the stolen funds were used to benefit the family and therefore constituted an indirect contribution towards the development and retention of the family assets.

Regrettably, there does not appear to be any will or desire on the part of the family to sell a portion of the lands in order to discharge the outstanding debt. According to the latest land survey in the Farmers Journal from March of 2024, the average price of farm land in Laois sold in 2023 was €16,359 per acre.

Accordingly it would seem to me that disposal of around 15 to 20 acres would be sufficient to discharge the outstanding amount. While the payment of €75,000 will attract some mitigation, obviously that mitigation will not be as substantial as it might otherwise have been had full restitution been made. Since this has not been done, then the significant mitigation that full restitution would attract, will not be available to the accused. Under no circumstances should the accused or her family be allowed to profit from her offending.

Mr Colgan made the point that following the death of the late John Bergin's wife in 1986, the accused continued to look after and care for him until he died November of 1993. Mr. Colgan makes the point that the accused might have been entitled to a Carers Allowance for that period and because she never sought same the state was saved that expense. While the court is not convinced as to the merits of that argument, it will nevertheless take it into account when structuring sentence.

Sentence

In determining sentence in this case the court has to try and balance the needs of society against the needs of the accused. Bearing in mind that the maximum penalty for theft is 10 years and taking into account the large sum of money stolen in this case and the repeated nature of the offending. I am satisfied that the offending ranks at the lower end of the upper range and dose before mitigation attract a headline sentence of eight years.

Taking into account the mitigation outlined and in particular the plea of guilt, the remorse of the accused, and the efforts made at restitution, I prepare to reduce that sentence to five years and six months.

Accordingly I am imposing a sentence of five years and six months. Taking into account the poor health the accused and her age I am going to suspend the final 3 years and 6 months of that sentence for a period of six years on condition that the accused enter into a bond of €500 to keep the peace and be a good behavior for a period of six years post-release and that the €75,000 be given forthwith to the State.

Finally, I would like to say that it is with great regret that I feel duty-bound to send a 73-year-old grandmother to jail in this case.

Some people may feel that the sentence is too lenient and others may feel that it is too harsh however I have tried to impose a sentence that is fair and equitable and which sends out a clear message that no matter who you are or what your circumstances are, theft from the social welfare fund is such a serious offence because of the damage it does to society, that a custodial sentence, particularly where the theft is prolonged and significant as is the case here will be unavoidable.

I am directing that Mrs Bergin be afforded all necessary and requisite medical treatment while in custody. Thankfully the Irish prison service has an excellent medical service which she will be able to avail of while in detention.