The People (at the suit of the DPP) v Kevin Molloy

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 19 July 2021
• Neutral Citation: [2021] IESC 44
• Court: Supreme Court
• Docket Number: [2021] IESC 000 Supreme Court appeal number: S:AP:IE:2020:000115 Court of Appeal Record Number: 120/20 Circuit Criminal Court record no: WHDP 0034 2018

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Kevin Molloy

Accused/Appellant

[2021] IESC 44

O'Donnell J

MacMenamin J

Dunne J

Charleton J

Baker J

[2021] IESC 000

[2020] IECA 254

Supreme Court appeal number: S:AP:IE:2020:000115

Court of Appeal Record Number: 120/20

Circuit Criminal Court record no: WHDP 0034 2018

An Chúirt Uachtarach

The Supreme Court

Sentencing – Harassment – Conditions – Appellant seeking to appeal against sentence – Whether the condition imposed that required that the appellant refrain from engaging in debt collection for the seven year period for which the sentence was suspended was valid

Facts: The appellant, Mr Molloy, on 19 May 2020, was sentenced by Mullingar Circuit Criminal Court in respect of two offences of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act 1997. This followed guilty pleas on the date of trial and entered after a jury to try the case had been sworn. Mr Molloy was sentenced to 30 months imprisonment on the first count but the last twelve months thereof were suspended for seven years on conditions. The second count was taken into consideration. Mr Molloy appealed his sentence to the Court of Appeal on the basis that the sentence was excessive, that it failed to take account of exceptional circumstances, that the trial judge had failed to give consideration to the alternatives to a custodial sentence, and that the sentence imposed failed to reflect the circumstances of the case and was unduly severe and unjust. Following the dismissal of the appeal, Mr Molloy sought leave to appeal to the Supreme Court. In the determination granting leave, [2021] IESCDET 1, the following issues were identified as involving matters of general public importance: (1) the precedents from Ireland and from other countries on demanding with menaces/harassment/unlawful debt collection cases, conduct in other words which would seriously undermine the sense of safety and security of members of the community, no matter what the purported motive, and how these divide into bands of lenient, ordinary, more serious and most serious bands; (2) whether s. 99(3) of the Criminal Justice Act 2006 in enabling a court to impose conditions for the suspension of a sentence extends beyond the period suspended, here 12 months with the possible imposition extending to 84 months; (3) the extent to which the Constitution or statutory authority enables a criminal sentencing court to regulate the conduct of a convicted person and if so over what period. Mr Molloy’s appeal to the Supreme Court centred primarily on the validity of the condition imposed that required that the appellant refrain from engaging in debt collection for the seven year period for which the sentence was suspended.

Held by the Court that the conditions are in the nature of a pact but one which is subject to review as, realistically, the offender could hardly refuse and in any event is within the disposal of the court. The Court held that arguments made and authorities cited as to the balance as between the suspended portion of a sentence, the conditions attaching, the operative part of the sentence and the necessity of weighing these elements so as to produce a proportionate result indicate that a suspension of seven years with conditions restricting the right to earn what would be a lawful livelihood if carried out in accordance with good conduct, demonstrate that such a condition erred in principle. The Court held that there is good sense in a suspended portion of a sentence, an instrument of disposal used by the courts on a daily basis to bring offenders to good sense, possibly while under supervision. The Court held that unbalancing a sentence whereby the suspended tier greatly exceeds the operative time served would need special justification, lacking in this case. The Court held that imposing the condition to refrain from debt collection is part of the punishment when viewed from the standpoint of bringing home to the offender the grave consequences of any consideration of further menaces or harassment in the future. The Court held that continuing that for a time beyond the period of suspension would be lawful but only where there is balance in the approach; that would include any time spent in custody prior to sentence.

The Court held that the sentence should be varied so that the condition would continue for the entire of the suspended portion of the sentence and for 18 months beyond that.

Sentence varied.

Judgment of Mr Justice Peter Charleton delivered on Monday 19 July 2021

1 On 19 May 2020, Kevin Molloy, by occupation a debt collector, but a man with a bad criminal record, was sentenced by Mullingar Circuit Criminal Court in respect of two offences of harassment contrary to s 10 of the Non-Fatal Offences Against the Person Act 1997. This followed guilty pleas on the date of trial and entered after a jury to try the case had been sworn. Kevin Molloy was sentenced to 30 months imprisonment on the first count but the last twelve months thereof were suspended for seven years on conditions; the point of this appeal. The second count was taken into consideration. Key to this appeal is the condition imposed that required that the appellant refrain from engaging in debt collection for the seven year period for which the sentence was suspended. This appeal centres primarily on the validity of this condition. Since a range of authorities as to approaches to sentencing on harassment and offences that are akin have been discussed by counsel both for the Director of Public Prosecutions and for Kevin Molloy, general guidance as to the sentencing bands appropriate to the seriousness of such offences and the criteria upon which an offence may be generally classified by a sentencing judge is also addressed.

Determination granting further appeal

2 In the ordinary way, Kevin Molloy appealed his sentence to the Court of Appeal on the basis that the sentence was excessive, that it failed to take account of exceptional circumstances, that the trial judge had failed to give consideration to the alternatives to a custodial sentence, and that the sentence imposed failed to reflect the circumstances of the case and was unduly severe and unjust. Following the dismissal of this appeal, for reasons detailed below, Kevin Molloy sought leave to appeal to this Court. In the determination granting leave, [2021] IESCDET 1, the following issues were identified as involving matters of general public importance:

1. The precedents from Ireland and from other countries on demanding with menaces/harassment/unlawful debt collection cases, conduct in other words which would seriously undermine the sense of safety and security of members of the community, no matter what the purported motive, and how these divide into bands of lenient, ordinary, more serious and most serious bands.

2. Whether s 99(3) of the Criminal Justice Act 2006 in enabling a court to impose conditions for the suspension of a sentence extends beyond the period suspended, here 12 months with the possible imposition extending to 84 months.

3. The extent to which the Constitution or statutory authority enables a criminal sentencing court to regulate the conduct of a convicted person and if so over what period.

3 While Kevin Molloy did not originally, in the application for leave, seek to appeal his sentence, at case management it became clear that, as this Court is required to consider sentencing bands in respect of this genre of case, it should be possible for him to challenge his sentence's severity.

The facts

4 In sentencing cases, the severity of the facts, the culpability of the offender and the harm done to the victim are central considerations in applying an appropriate sentence in accordance with law. Kevin Molloy set up his debt collection agency in 2005, apparently following on unemployment related to the collapse of property values. He was employed to recover a debt which he understood was due by one IC. In his attempts to locate this person, Kevin Molloy sought out and discovered the identity of his partner, a lady called AB, who had an interest in equestrian sport. His offences, reflected in the two counts to which he pleaded guilty, were in harassing AB and her father, JB, the object being to bring IC unlawfully to a state of mind where the debt claimed would be paid. The methodology was criminal. According to the summary of evidence before the sentencing judge, threatening phone calls were made between 7 April and 9 August 2015 which menacingly indicated to JB that he knew where he lived and was watching him. On a call to JB on 7 April 2015, Kevin Molly said that “the situation could get very ugly if not dealt with within 48 hours.” He informed this victim that, as regards IC, “they were going to bring him for a drive and kidnap him and sort him out.” On 10 April 2015, there was a further call to JB which was missed but this was immediately followed by a text saying: “MULLINGAR CANCELLED. TICK TOCK TICK TOCK. ONLY A MATTER OF TIME.” Texts followed which further indicated that he was being watched, asserted that he was as big a fraud as IC, and claimed that he did not love his daughter and that he would be as famous as the Aga Khan.

5 The actions taken by Kevin Molloy against AB began on 25 April 2015 when posters of her and IC were distributed near an equestrian event. These heedlessly claimed involvement with IC in a manner that allegedly was likely to extend to his alleged scams. This information was also disseminated on social media. She received texts indicating that she was being watched, including disturbing communications in the middle of the night.

6 Kevin Molloy's previous convictions were not given in evidence in precise detail before the Circuit Criminal Court. Aside from this case, his most recent conviction was in...