DPP v Gahan

 
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[2014] IECA 49

THE COURT OF APPEAL

Birmingham J.

Irvine J.

Edwards J.

Appeal Number: 305/2012

Between
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
and
Rory Gahan
Accused/Applicant

Crime & sentencing – Sentencing – Term of imprisonment – Burglary – Appeal against sentence

Judgment of the Court (ex tempore) delivered on the 17th day of December 2014 by Ms Justice Mary Irvine
1

This is an appeal against the severity of a sentence of eight years imprisonment, with the final three years suspended for five years subject to conditions that was imposed on the appellant at Kilkenny Circuit Criminal Court on 11th October 2012

2

On 3rd October 2012 the applicant pleaded guilty to one count of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud) Offences Act 2001 in respect of an offence which took place on 9th January 2011 at Graiguenamanagh in Co. Kilkenny.

3

On that occasion the applicant was jointly indicted with Mr. Liam Foley who was later sentenced by Judge Alice Doyle on 15th January 2011 to a period of nine years imprisonment with the final two years suspended for a period of five years.

Circumstances of the offence
4

The circumstances of the offence as those which were outlined by Gda. O'Donovan in the course of the sentencing hearing and they are as follows. At approximately 1 a.m. on 9th January 2011 the applicant and Mr. Foley called to their victim, Mr. Hayden's home. They got him to open the door on the pretext that they were members of an garda síochána and then shoved past him. Mr. Foley proceeded to smash a television set with a hatchet and also took €160 from Mr. Hayden's wallet and stole a range of medication.

5

Mr. Foley then went out of the house, brought back in a holdall from which he took some white spirit, set fire to certain receipts and rubbish in the fireplace. That fire spread into the room and it was the applicant who put out the fire with a jumper that was close at hand. Then a demand was made of Mr. Hayden to know where his drugs cabinet was located. He was also asked about the whereabouts of his mobile phone and when he did not respond sufficiently two or more televisions were smashed.

6

It is clear from Gda.O'Donovan's evidence that he at least seemed to accept that it was more likely that it was Mr. Foley who had smashed these televisions. Mr. Foley then tied Mr. Hayden up. He spilled some white spirit and later petrol on Mr. Hayden's hands apparently to reduce any prospect of finding evidence. Again, it was Gda. O'Donovan's understanding that it was Mr. Foley who had in fact been engaged in pouring the petrol and the white spirit on Mr. Hayden's hands. There was no evidence that Mr. Hayden ever thought he was going to be set on fire.

7

However, before this very significant burglary concluded Mr. Foley s proceeded to slash Mr. Hayden's face with a penknife and it is very clear from the transcript of the sentencing hearing that this caused a very significant injury requiring twelve sutures to be inserted in Mr. Hayden's face.

8

In the course of the exchange between the parties it appears likely that the appellant asked Mr. Hayden how long it was likely to be before somebody would actually call to his house and that following this exchange Mr. Hayden gave him the phone number of a friend. To the applicants credit it has to be said that he phoned this man, who was a taxi driver, some five or seven hours after they left Mr. Hayden's premises.

9

After this particular assault Mr. Hayden got free relatively quickly and he was able to attend to his face. However, he had not the courage to leave the house until the following morning at which stage he went to a neighbour's house. In the course of the sentencing hearing Gda. O'Donovan certainly made it clear that Mr. Foley in his view had been the main aggressor and that seemed to be accepted ultimately by the sentencing judge.

10

Insofar as Mr. Hayden was concerned a matter of importance to the trial judge in assessing the gravity of the offence, Mr. Hayden was sixty five at the time of the burglary, he was living alone. He was apparently very frightened by the events and it took him about six weeks to recover to the point that he felt...

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