South Wales dine-and-dashers Ann and Bernard McDonagh have today been convicted in relation to a spate of offences across the region.
You can read more about the couple's crimes in my earlier article.
District Judge Chris James, having determined the Magistrates' Court's sentencing powers to be insufficient, has sent matters to Swansea Crown Court for sentencing.
By definition that means the Judge, having considered all the circumstances and information before the court, is of the view that the appropriate sentence is one exceeding the 12-months' custody available to the Magistrates' Court.
I shall now work through some of the considerations of the Crown Court Judge who ends up sentencing these defendants. As always, one of the primary considerations will be the relevant sentencing guidelines as produced by the Sentencing Council.
The guidelines, which we often refer to, can be used to determine a sentencing starting point based on the circumstances of both offence and offender. The starting point is based on the level of culpability of the offender (e.g. their level of blameworthiness) and the level of harm caused by the offence.
The starting points suggested by the guidelines are those for a first-time offender, which does not apply in the case of the McDonaghs (who both have previous for theft; Ann McDonagh has previous for fraud).
The Judge will then adjust the sentence from the starting point to take into account any aggravating or mitigating factors, taking care not to double-count those that have been used to determine the starting point itself.
In a case involving multiple offences, the principle of totality also needs to be applied to any sentence imposed. In simple terms, this means the final sentence is scaled accordingly so that it is commensurate with the overall level of offending.
The Judge will also consider, although is not bound by, any recommendations made in a pre-sentence report.
If the Judge concludes that the offences, when considered in totality, are so serious that only a custodial sentence is appropriate, they then have to decide whether or not the custodial term can be suspended.
A suspended sentence should only be imposed if the Judge is happy for the defendants to go directly into custody, but is taking a step back due to the unique circumstances of the case. More on suspended sentence orders in an earlier article.
I am now going to have a go at sentencing the McDonaghs based on what we know. I should say that we have access to far less information than the court, so this is just an approximation.
The frauds are the most serious offences here. They have a maximum sentence of 10 years' custody, whereas the thefts have a maximum of 7 years'. That being the case it would be fairly normal to sentence based on the fraud guideline and then tweak the final sentence to reflect totality.
An extract from the fraud sentencing guideline is reproduced below:
Ann McDonagh:
Referring to the guideline, I would consider Ann McDonaghs' involvement in these frauds as being one of higher culpability (A). I base that on the impression that Ann McDonagh has a leading role, in that she is the one feigning payment attempts and dishonestly stringing the staff along. There is arguably a high degree of planning, in that she has a rehearsed script and props (e.g. dodgy payment card) to aid the commission of these offences.
In terms of harm, these fraud offences would fall within category 5. As their value is far less than £5,000, they would come towards the bottom of the sentencing range.
In terms of victim impact, I think realistically these fraud offences have lesser victim impact in that they are detrimental, but could not be described as considerably detrimental, to the businesses concerned.
Considering both culpability (A) and harm (5), that would give a sentence starting point of 36 weeks' custody. Moving down the range, to take into account the value being far less than £5,000, that might give a starting point of a high level community order.
Turning now to consider the aggravating and mitigating factors.
In terms of aggravation, these frauds have taken place in busy family restaurants and in the presence of children. DJ James has specifically mentioned this aspect, when he declined to sentence matters earlier today.
As McDonagh has admitted a string of similar offences, there is little doubt that her method is "tried and tested" and there is a clear propensity towards dishonesty. These crimes also span several months, so there can be little suggestion that they were impulsive acts.
These frauds are also a group activity, at least in the sense that Bernard McDonagh has admitted involvement. Ann McDonagh also has several previous convictions for offences of dishonesty.
As will become apparent later on, it is likely McDonagh was on bail in relation to the (now admitted) allegations of shop theft at the time of at least some of these frauds.
In terms of mitigation, we have not heard anything but it is likely the Crown Court will. Of course the Judge can choose how much weight to attach to McDonagh's inevitable claims of "genuine remorse" and the like. They may well take the view, as I have, that the McDonaghs would still be happily ripping off businesses had it not been for the Bella Ciao restaurant sharing its CCTV footage.
Taking these aggravating and mitigating factors into account, I would now take that view that we have crossed the custody threshold. I would uplift the sentence of one of 6 weeks' custody.
Putting that into perspective, that's 6 weeks' for the premeditated, orchestrated ripping off of a restaurant to the tune of £300 - seems pretty reasonable to me.
We now have the matter of totality to take into account. 6 weeks' is for one offence of fraud, but Ann McDonagh has admitted five pretty much identical offences of fraud, all committed on different days and at different locations. In those circumstances the court can order custodial sentences to run consecutively.
Taking that in account, I would impose 6 weeks' custody for each fraud offence to run consecutively. That would give 30 weeks' custody in total.
However, we also have four offences of shop theft to take into consideration. We don't know much about those apart from their values (£442, £46, £426, £400). It is noted that she targeted the same Tommy Hilfiger store twice, taking goods valued at £442 on 3rd February and £46 on 17th February 2024, which suggests a degree of planning.
In normal circumstances, for a defendant of previous good character, these offences would be unlikely to attract a custodial sentence. However, we know Ann McDonagh has committed similar offences in the past, which may well now tip the balance towards custody.
In those circumstances, I might be inclined to impose 2 weeks' custody in relation to each offence of shop theft, giving an additional 8 weeks' custody on top of the 30 weeks' for the fraud.
This would give a sentence for Ann McDonagh, albeit very provisional and based on incomplete information, of around 38 weeks' custody.
She would then be entitled to one-third credit for her early guilty plea, which would take it back down to a final sentence of around 26 weeks' custody.
That being the case I think she could have been sentenced within the powers of the Magistrates' Court. It will be interesting to see if that's the case.
Of course if she is already subject to either a community or suspended sentence order, which is entirely possible, then that could well increase the sentence further.
I would then turn to the matter of whether to suspend the custodial term.
We have heard that the McDonaghs have children below the age of 16. That being the case, the Judge is likely to conclude that a sentence of immediate custody would have a disproportionately negative impact on the children. In those circumstances, it is likely the sentence would be suspended.
In terms of the obstructing a police constable, I would impose no separate penalty.
In terms of ancilliary orders, I would order the payment of compensation to each of the restaurants and retailers concerned. She would pay half the compensation owing to each restaurant and the full compensation owing to each retailer. I would also order the deprivation of her comedy bank cards, plus the deprivation of any item used to facilitate the shop thefts.
Bernard McDonagh:
It seems to me that Bernard McDonagh has a lesser role in the fraud offences, although the couple's solicitor at today's hearing, Giles Hayes, has suggested "they are equally culpable for the offences".
I'm going to stick to my guns that Bernard McDonagh is less culpable (B) than Ann McDonagh, but in terms of harm the monetary value and victim impact (5) are clearly the same.
Considering both culpability (B) and harm (5), that would give a sentence starting point of a medium level community order. Moving down the range, to take into account the value being far less than £5,000, that might give a starting point of a Band B fine.
Turning now to consider the aggravating and mitigating factors.
In terms of aggravation, these frauds have taken place in busy family restaurants and in the presence of children. For all McDonagh seems to take a background role, he is fully aware of the scam and instrumental in its execution.
Again he has admitted a string of similar offences and has previous convictions for theft, so there is little doubt about his propensity towards dishonesty. He also committed the offences jointly with Ann McDonagh.
There is no indication that Bernard McDonagh was subject to bail at the time of the frauds.
Again we have heard no mitigation, which will be saved for the sentencing hearing.
Taking these aggravating and mitigating factors into account, I would now take that view that we have crossed the community threshold, probably towards the top end. I would uplift the sentence to a high level community order.
Putting that into perspective, that's a high level community order for his lesser role in defrauding the restaurant of £300.
We now have the matter of totality to take into account. A high level community order is for one offence of fraud, but Bernard McDonagh has admitted five pretty much identical offences of fraud, all committed on different days and at different locations.
In those circumstances, I would now consider the overall offending to cross the custody threshold.
That being the case I would impose 2 weeks' custody for each fraud to run consecutively to each other.
This would give a sentence for Bernard McDonagh, albeit very provisional and based on incomplete information, of around 10 weeks' custody.
He would then be entitled to one-third credit for his early guilty plea, which would take it down to a final sentence of around 6 weeks' custody.
Such a sentence could comfortably be imposed by the Magistrates' Court, but it makes sense for both defendants to be sentenced together at the Crown Court.
For the same reason as with Ann McDonagh, this custodial term would be suspended.
In terms of ancillary orders I would order the payment of compensation to each of the restaurants concerned. He would pay half the compensation owing to each restaurant (Ann McDonagh having paid the other half).
It seems that the couple use a blue van to travel to the restaurants they defraud. That being the case, the court could also order the deprivation of that vehicle and/or disqualify either/both the McDonaghs from driving.
Update (9/5/24): I forgot to include credit for the McDonaghs' early guilty pleas, so have amended my final sentence predictions accordingly.
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