DPP v Kierans

 
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[2015] IECCC 1

THE CENTRAL CRIMINAL COURT

Ms. Justice Donnelly

CC0113/2013

The People at the Suit of the Director of Public Prosecutions
Applicant
and
Oliver Kierans
Respondent

Sentencing – Manslaughter through gross negligence – Possession of a firearm with intent to endanger life – Applicant seeking sentencing of the respondent – Whether offences fell within the upper range

Facts: The respondent, Mr Kierans, killed his wife with a shotgun in 2013. He remained in the house drinking for some considerable period of time and left later in the day without contacting anybody to notify them as to what had happened while concealing his shotgun in the modified pocket in his jacket and went to a bar in town with additional cartridges. He had reloaded the shotgun in the interim. He used the shotgun for the purpose of resisting his arrest. He deliberately pointed the gun, where he had his hand on the trigger, at a member of An Garda Síochána. He was tried on a count of murder and the jury returned a verdict of not guilty of murder but guilty of manslaughter. It was agreed by the prosecution and the defence that the correct and proper interpretation of that verdict is that it was one of manslaughter through gross negligence. The defendant was also convicted of two offences in relation to events which occurred later on the same day that he had killed his wife when he resisted arrest. The first was an offence of possession of a sawn-off shotgun in circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, contrary to s. 27(a) of the Firearms Act 1964. He was also convicted of an offence of possession of the same shotgun with intent to endanger life contrary to s. 15 of the Firearms Act 1925. The evidence of Mr Kierans which formed the basis of the verdict of manslaughter was to the effect that he picked up the firearm while intoxicated with the intention of taking his own life. The firearm discharged in the direction of his wife, who was a very short distance away and entered through her left chest area. The main point of mitigation in favour of Mr Kierans was that he had no previous convictions. The case was put before the Central Criminal Court for sentencing.

Held by Donnelly J that, having considered People (DPP) v Kelly [2005] 2 IR 321, the offence fell within the upper range of gross negligence manslaughter. In Donnelly J”s view, this case was at the lower end of the upper range of manslaughter sentences for gross negligence. Donnelly J held that the gravity of the offence was mitigated by the particular personal circumstances of the defendant. Having taken into account the impact on his children and his grandchildren in particular, his own previous good character and his regret, Donnelly J sentenced Mr Kierans to nine years imprisonment for the manslaughter of his wife. In relation to the offence of s. 27 (a) of the Firearms Act 1964, the offence suspicious possession and to the offence of possession with intent to endanger life contrary to s. 15 of the Firearms Act 1925, Donnelly J found that both of these offences were at the higher end of the scale as they occurred in circumstances where Mr Kierans had already picked up a firearm and accidentally shot and killed his wife. In those circumstances, the pointing of a shotgun in the manner he did to endanger the life of a member of An Garda Síochána and indeed possibly other Gardaí and two concerned citizens was held by Donnelly J to be at the higher end of the scale. Having referred to the mitigating factors, Donnelly J held that the appropriate sentence for the s. 27 offence was one of eight years and that the appropriate sentence for the s. 15 offence was one of twelve years.

Donnelly J held that Mr Kierans should be sentenced to nine years imprisonment for the manslaughter of his wife, eight years for the s. 27 offence and twelve years for the s. 15 offence.

Judgment approved.

SENTENCING JUDGMENT of Ms. Justice Donnelly delivered on the 20th day of April, 2015
1

Tragedy is the word that the children of the deceased woman, Patricia Kierans, and the defendant Oliver Kierans, have used to describe the death of their mother. It is tragic that the defendant caused the death of Patricia Kierans, who at 54 years of age had commenced a new life and a new relationship after 33 years of marriage to the defendant. It is a tragedy that the children of the late Mrs. Kierans as well as her own birth family have endured the loss of a woman, who, by all accounts was a warm, generous lover of life who liked to socialise through singing and dancing. She was a kind woman who, on the day she was killed, had been due to bring an elderly neighbour to the graveyard, something she regularly did. She took great care of her children, bringing her daughter to Irish dancing competitions where she became an All Ireland champion. She brought her boys to soccer and GAA matches. All four of her children have, in turn, grown up to be hard working people with families of their own.

2

This tragedy was brought about by the criminal act of the defendant. He was tried on a count of murder and the jury returned a verdict of not guilty of murder but guilty of manslaughter. It is agreed by the prosecution and the defence, and I also agree that the correct and proper interpretation of that verdict is that it is one of manslaughter through gross negligence. The defendant was also convicted of two offences contrary to the Firearms Acts as amended in relation to events which occurred later on the same day that he had killed his wife. Those occurred at a premises known as the Square Bar, Market Square, Bailieborough, County Cavan. The first was an offence of possession of a sawn-off shotgun in circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, contrary to s. 27(a) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act, 2006 as amended by s. 38 of the Criminal Justice Act, 2007. He was also convicted of an offence of possession of the same sawn-off shotgun with intent to endanger life at the same premises contrary to s. 15 of the Firearms Act, 1925 as substituted by s. 42 of the Criminal Justice Act, 2006.

3

The circumstances in which those offences were committed are as follows. Oliver and Patricia Kierans had met as teenagers in Bailieborough, County Cavan, they formed a relationship and married when they were both in their early twenties. At the time of the death of Patricia Kierans they had been 33 years married. They had four children, three boys and a girl, three of whom were living in Australia at the date of the unlawful killing. The fourth, Shane, was on route to Australia.

4

In the spring and early summer of 2013, what has been confirmed as unhappy differences arose in the relationship. In the build up to leaving the family home Patricia Kierans had gone to a neighbour one evening who gave evidence that she was stressed. He went round to the family home where he had a conversation with Mr. Kierans. He outlined to Mr. Kierans that Patricia was upset and concerned for her safety and the concern was aired regarding a firearm legally held by the defendant. Mr. Kierans laughed that off as being incorrect and said that he had simply been cleaning his gun. Both that witness and another witness on a separate occasion had been brought into the house by Mrs. Kierans and shown the shotgun underneath the mattress.

5

Mr. Kierans was a licence holder of two firearms, a rifle and a shotgun. He used the guns for hunting purposes. The firearm involved in this case was a double barrel shotgun. At some point in the run up to the day that Patricia Kierans was killed the firearm was modified by Mr. Kierans. He shortened the barrels of the shotgun by sawing them off and also sawed off the stock of the firearm. In effect, it became what is known as a sawn-off shotgun. That action on the part of Mr. Kierans clearly took him outside the terms of his licence as it is not permitted in law to own or possess a sawn-off shotgun.

6

Mrs. Kierans moved out of the family home and went to reside with her sister who lived in Cavan town. She spent the summer months living there with her sister, Mairead. Mr. Kierans initially appeared to take stock of matters. He was a man who consumed fairly substantial quantities of alcohol on a daily basis. However, he effectively went on the dry for the summer.

7

Mr. Kierans frequented a local bar called the Square Bar in Bailieborough. This was owned by a Philip Clarke who was also known as Nixy Clarke. He knew both Mr. and Mrs. Kierans. Mr. Kierans worked on an ad hoc basis in the bar getting it ready for functions and getting stock up and down and cleaning the place. Mrs. Kierans also did some part-time work there and at least one of the children also worked there part-time when at school or college.

8

Mrs. Kierans did not have contact with Oliver Kierans over the summer. She began a new relationship to such an extent that when she was released from hospital the day before she was killed it was to this man she turned.

9

Mr. Kierans became aware of this new relationship at the very end of August or indeed about the 1st of September. He appeared to go back on the drink with a vengeance from the Sunday preceding the 5th of September, 2013. He thereafter sent a number of text messages proved in evidence asking her to reconsider the relationship. He received a text in reply in which Patricia Kierans said unequivocally that the relationship was over and that she did not want further contact from him.

10...

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