A man who pleaded guilty to having proceeds of crime to the value of €7,600 claimed he had lost his card but later told Gardai he had been mugged and was forced him to hand over his bank card pin codes.
Ben McGuigan appeared at Letterkenny Circuit Court in Co Donegal charged with one count of being in possession of property being the proceeds of criminal conduct.
The court heard a total of €7,600 had been lodged in McGuigan’s AIB account after a ‘smishing’ text scam.
The money had been taken from the bank account of fraud victim Ciaran Sweeney in Co Donegal but then transferred to McGuigan’s account in Dublin.
The money was then taken out of McGuigan’s account using his ATM pass card.
Gardai had studied CCTV of the transactions but had yet to identify the people involved.
McGuigan, a barman from Blanchardstown , pleaded guilty to the sole charge.
The 25-year-old is charged that on October 16, 2020, at a place unknown in the State, was in possession of property that was the proceeds of crime, namely €7,600 or thereabouts, being money credited to an AIB account in his name.
Detective Garda Donna Ferguson gave the background to the case and how Mr Sweeney had received a ‘smishing’ text which saw €7,600 of his funds come out of his account and end up in the account of Ben McGuigan.
Mr Sweeney had been reimbursed by the AIB bank and the fraud team at the bank had become involved.
When interviewed, McGuigan claimed he had initially lost his card.
However, he later told Garda Sergeant Maurice Doyle that he had been mugged by the gang of five men and forced to hand over his bank card and tell them his pin codes.
Barrister for the accused, Mr Peter Nolan, put it to Detective Ferguson that his client did not profit from the venture and Detective Ferguson said he claimed he did not.
Mr Nolan said his initial instructions from McGuigan was that he had simply lost his card but then he had gone and told Sergeant Doyle that he had been robbed in his local estate in Blanchardstown and beaten up.
“We believe Mr McGuigan allowed them (the gang) to use his account,” said Detective Ferguson.
McGuigan gave evidence to the court and Mr Nolan asked him why he didn’t initially tell the Gardai that he had been robbed by a gang.
The accused man replied that he was in fear and that he didn’t think there would be an outcome from the Gardai knowing about this.
He claimed the first time he knew about it was when he went to his bank to get a new card and was told that his account was frozen.
McGuigan was asked if anybody else knew about this mugging and he said his mother as she had seen blood on his face after he had come home after being set upon.
Judge John Aylmer asked the accused why he had pleaded guilty if he had been mugged and McGuigan claimed it was because he had handed over his pin to the gang.
“So what you are saying is that your pin was beaten out of you?” asked the Judge.
Sgt Maurice Doyle said he had spoken to McGuigan informally about the alleged mugging.
However, Sgt Doyle said he found McGuigan to be “very sketchy” and was evasive when asked further questions about the incident.
He was asked if he wanted to make a formal statement and he declined while Sergeant Doyle said McGuigan was unable or unwilling to give any descriptions of the gang who attacked him.
He also said he did not attend a doctor as a result of the mugging.
Speaking on behalf of his client, barrister Mr Nolan said his client left school at 17 and has been put at a low risk of reoffending by the Probation Services.
He is now working as a barman and has no addiction issues apart from experimenting with cannabis and has just two previous convictions before 2020 and for different matters.
He said that it was only on January 25th last that he outlined to the Probation Service that he was the victim of a robbery and that he was struggling with his mental health and had lost his phone.
Mr Nolan said it would have been a different story (if he had mentioned the mugging earlier) but he has pleaded and he wants the matter dealt with so he can get on with his life.
Judge Aylmer initially planned to remand McGuigan in custody for a couple of days to consider the matter but Mr Nolan pleaded that his client would lose his job if this happened.
Judge Aylmer agreed and adjourned the case for two days instead before delivering his verdict.
Passing sentence, he said that neither account he gave to Gardai was credible saying his details about the alleged robbery was “very vague and clearly lacked credibility.”
Judge Aylmer added “The courts can only confer that you have much to conceal and your culpability is far in excess of what you are seeking to admit to which is pretty much more – notwithstanding your plea of guilty.”
He placed the incident at the lower end of the scale but one which nevertheless merited a sentence of 3 years in prison before mitigation.
The Judge added that “society is plagued by this type of offending” and the message had to go out that anyone engaged in this type of offending is liable to this type of prison sentence.
Because of his late plea, his lack of serious previous convictions, but especially because he is supported by his family, is employed and is in a relationship, Judge Aylmer said he was reducing this sentence to one of two and a half years.
He added that when he heard the evidence he was “pretty certain” he was going to hand down a prison sentence but has considered the matter in recent days and taken into account his lack of previous convictions, his employment and especially his good family support.
He said he could consider suspending the entire sentence but that this was not a matter he had made his mind up and might be able to go down that road.
Judge Aylmer said he was adjourning the case for 12 months to allow McGuigan to pay back the €7,600 to the AIB and he will consider the matter of a suspended sentence then.
However, he warned the accused that if there is any trouble between now and then he will think out matters again.