DPP v Fogarty

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 09 November 2015
• Neutral Citation: [2015] IECA 333
• Docket Number: 192/14
• Court: Court of Appeal (Ireland)
• Date: 09 November 2015

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Timothy Fogarty

Appellant

[2015] IECA 333

192/14

THE COURT OF APPEAL

Sentencing – Firearms offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The injured party, Ms Ryan, at 9.10 am on the 20th June, 2011, at Birdhill, Co. Tipperary, was walking on the roadway about 200 yards from her home. The appellant, Mr Fogarty, who was driving his jeep lowered his window and shouted at her. She did not hear what the appellant said and continued walking. The appellant then drove his vehicle across the road and pulled up nearby. As Ms Ryan was walking in his direction the appellant got out of his jeep and pointed an electric powered air rifle at her. He did not say anything. She screamed and ran towards her home. The appellant drove off in his jeep. He was interviewed by the Gardaí some time later and agreed that he had met Ms Ryan on the morning in question, but denied pointing the air rifle at her. On the 16th October, 2013, following a jury trial the appellant was convicted at Tipperary Circuit Court of having in a public place an air rifle intending to unlawfully intimidate another person contrary to s. 9(5) of the Firearms and Offensive Weapons Act 1990. The appellant was sentenced to four years imprisonment with the final twelve months suspended for a period of five years from the date of release. The appellant appealed to the Court of Appeal against the severity of that sentence on the grounds that the trial judge wrongly identified the case as being located at the higher end of the range of available penalties and that the trial judge failed to give sufficient weight to the mitigating factors that had been identified in the psychologist’s report. This was a detailed report, prepared and signed by three psychologists which had been presented to the sentencing judge in support of the plea in mitigation. The report stated that the overall level of intellectual functioning of the appellant lay at the borderline range of intellectual disability, his overall thinking and reasoning abilities being exceeded by 99% of adults of his own age.

Held by Sheehan J that, given the momentary nature of the production of the air rifle and the circumstances in which it took place, namely in a context where no other form of criminality was involved, the offending behaviour before taking account of the mitigating factors lay in the mid range. The Court identified the starting point in this case as three years imprisonment. Thus, the error of principle that the Court identified lay in the decision of the trial judge to locate the offending at the most serious end of the available range. The Court then proceeded to sentence the appellant afresh.

Sheehan J held that while the appellant was responsible for his actions, the Court was obliged to factor some mitigation as a result of the reduced culpability demonstrated by the psychologists in their report. The Court considered five certificates of courses completed by the appellant. The Court was impressed with the answers given by the appellant in which he explained how those courses will help him to reintegrate into the community and also how they enabled him, in his view, to be less likely to offend in the future. The Court therefore substituted a sentence of three years imprisonment for the sentence originally imposed and suspended the final twelve months of that sentence for a period of two years following the appellant’s release on the same terms and conditions as the original bond namely that he keep the peace and is of good behaviour for a period of two years post release.

Appeal allowed.

Mr. Justice Sheehan

1 On the 16th October, 2013,...