DPP v Molloy

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 25 September 2020
• Neutral Citation: [2020] IECA 254
• Date: 25 September 2020
• Docket Number: [120/20]
• Court: Court of Appeal (Ireland)

THE PEOPLE [AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS]

RESPONDENT

AND

KEVIN MOLLOY

APPELLANT

[2020] IECA 254

Edwards J.

McCarthy J.

Ni Raifeartaigh J.

[120/20]

THE COURT OF APPEAL

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

Facts: The appellant, Mr Molloy, appealed to the Court of Appeal against sentence imposed on the 19th May, 2020 in respect of two offences of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act 1997, following pleas of guilty on the 4th February, 2020. The appellant was sentenced to two and a half years imprisonment on the first count and the last twelve months thereof was suspended on certain conditions; the second count was marked as being taken into consideration when sentencing. One of those conditions imposed an obligation on the appellant to refrain from engagement in the provision of debt collection services whether directly or indirectly for the period for which the sentence was so suspended, namely, seven years. The grounds of appeal were as follows: (i) the trial judge erred in law in imposing a sentence on the appellant which was excessive in all the circumstances of the offences and the appellant; (ii) the judge failed to recognise the exceptional circumstances in this case or failed giving sufficient or appropriate weight such as would lead him to suspend in its entirety the sentence imposed on the appellant; (iii) the judge failed to give due consideration to the alternatives to a custodial sentence for the appellant and which would have been more appropriate and/or just in all the circumstances; and (iv) the sentence imposed failed to accurately reflect the particular circumstances of the case and was unduly severe and/or unjust in those circumstances.

Held by the Court that the trial judge was right in the view he took in identifying the offences as falling “at the upper mid-range”; accordingly the headline sentence of four years’ imprisonment could not be faulted when the maximum is seven. The Court found that it was plain from the judgment that the most comprehensive consideration was given to all relevant factors either for the purpose of deciding the headline sentence or, thereafter, addressing the issue of mitigation. The Court held that, on any view, a sentence of one and a half years’ actual imprisonment in a case where the appropriate headline sentence was four years was one which adequately reflected, and more than reflected, the factors available in mitigation. In the light of the fact that these offences were committed in the course of his work of collecting a debt (if it was such) for Mr Geraghty from Mr Cunningham, in the absence of any other form of protection for the community, the public interest in ensuring that the law is observed when debts are sought to be collected and that those involved are of good character, the Court held that the restriction was legitimate and in particular was proportionate to those aims. The Court thought that the fact of past criminality, including offences of dishonesty dealt with as recently as 2018, were of relevance also, although secondary factors.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice McCarthy on the 25 ^th day of September 2020

1 This is an appeal against sentence imposed on the 19 ^th May, 2020 in respect of two offences of harassment contrary to section 10 of the Non-Fatal Offences Against the Person Act, 1997, following pleas of guilty on the 4 ^th February, 2020. The injured party in respect of the first of these was Mr. Joseph Byrne and the offence occurred between the 7 ^th April. 2015 and the 9 ^th August, 2015 and the second injured party was his daughter. Ms. Aisling Byrne, and in her case the offence occurred between the 25 ^th April, 2015 and the 27 ^th June, 2015. The appellant was sentenced to two and a half years imprisonment on the first count and the last twelve months thereof was suspended on certain conditions; the second count was marked as being taken into consideration when sentencing In the present context one of those conditions only is relevant, namely, that which imposes an obligation on the appellant to refrain from engagement in the provision of debt collection services whether directly or indirectly for the period for which the sentence was so suspended, namely, seven years.

2 The charges have their origin in attempts by the appellant, who carried on the business of debt collection, to recover what he understood was due by one Ian Cunningham to one Padraig Geraghty. He was working on a so-called “no foal no fee” basis and was to be paid 30% of what he recovered. He asserted that he was personally sympathetic to Mr Geraghty who said that he had suffered a loss on an investment made by or with Mr Cunningham at Mr Cunningham's behest. This investment had been the subject of litigation (which, indeed, is said to be ongoing) in England and also of proceedings in this jurisdiction which it appears were compromised and pursuant to which money was to be paid to Mr Geraghty, which it was not. We are not told what may have occurred by way of compromise.

3 Mr. Molloy's co-accused Mr. Pearse O'Connor had been acquainted with him for a number of years and was effectively retained in the present context by the appellant as his assistant. The appellant sought to ascertain the whereabouts of Mr Cunningham, an effort which extended to the employment of a private investigator but he established that Ms. Byrne was Mr. Cunningham's partner and a daughter of Mr. Byrne. He therefore decided to pressurise them with a view to pressurising Mr. Cunningham, indirectly even though they had nothing whatever to do with the dealings between Mr. Cunningham and Mr. Geraghty.

4 So far as Mr. Byrne was concerned the appellant telephoned him (how he obtained his mobile phone number is not clear since they had not been acquainted) leaving a message and using a false name. When Mr. Byrne returned his call he was informed that the appellant was telephoning him about Mr. Cunningham, stated that he worked for a debt collection agency and was seeking to recover a debt due to Mr. Geraghty by Mr. Cunningham. He told Mr. Byrne that he had been to his shop but hadn't stated his business because he didn't want to embarrass members of the staff. Mr. Byrne was told that “the situation could get very ugly if not dealt with within 48 hours”, that he had visited a number of equestrian centres looking for Mr. Cunningham but he was hard to get hold of and that when “they” did “they were going to bring him for a drive and kidnap him and sort him out”. The appellant stated that he knew Ms. Byrne was Mr. Cunningham's partner and that he knew also where Mr. Byrne lived. Furthermore, the appellant told him not to contact the Gardaí. This first call occurred on the 7 ^th April and later he received a call on the 10 ^th April, 2015, which he missed but on the same day he received a text from the appellant in capital letters stating “MULLINGAR CANCELLED. TICK TOCK TICK TOCK. ONLY A MATTER OF TIME”. Later he received texts from the appellant saying that he was being watched, that he was as big a fraud as Mr. Cunningham, that he did not love his daughter and that he would be as famous as the Aga Khan. Enquiry was further made of him as to whether or not he had paid for his daughter to stay in the Four Seasons Hotel when participating in the Dublin Horse Show in 2015.

5 Mr. Byrne was of course deeply upset and frightened. He was and is a substantial businessman in Longford. There was a sinister element, obviously, in the reference to the fact that the appellant knew where Mr. Byrne lived. He and his wife were of course greatly concerned for their daughter who herself was deeply upset. He was aware, and it was obvious on the evidence, that he and his daughter were being watched. Defamatory posters were also posted at his business premises: we shall return to these below.

6 So far as Ms. Byrne is concerned she is a showjumper of considerable talent and reputation and also worked from time to time as a model. The first step taken against her appears to have been on the 25 ^th April, 2015 when a number of posters were pasted on her truck and other vehicles in its vicinity at a horse show in County Louth. These pictured her with Mr. Cunningham and accused the latter of theft, embezzlement, insurance fraud and as the cause of a suicide. The posters also asserted that she had become involved with Mr. Cunningham and that such involvement was likely to extend to his alleged scams/fraudulent activities. Mr. O'Connor printed and distributed the posters at the appellant's behest. The posters were also exhibited and distributed at horse shows in Cavan, Galway and Mullingar and placed at shop fronts both in Mullingar and Longford, and in particular at Mr. Byrne's business premises. They were disseminated also, unsurprisingly, on social media. Whilst attending at Shelbourne Park Ms. Byrne received a text from the appellant saying “See you swanning around Shelboume. Have you told your friends Ian is a thief. We're watching and waiting. Go 10 Ash” and in the middle of the night she received a text some two days later from the appellant containing the enquiry “How do you sleep at night”. She was aware, it seems, of the fact that the appellant had referred to the fact that she had been staying on a given occasion at the Four Seasons Hotel.

7 Understandably, these events not only caused her reputational damage in show jumping circles but fear for her safety since it must follow that she was being watched. She was forced to give up horse breeding and cut back on her modelling career. Her income was...