Court of Appeal dismisses appeal against arson sentence, upholding seven-year term with two years suspended.

THE COURT OF APPEAL

Record Number 192/17

The President.

Whelan J.

McCarthy J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

JOHN KELLY

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on 14th day of December 2018 by Mr. Justice McCarthy.

1. This is an appeal against the severity of a sentence imposed at Cork Circuit Criminal Court on the 29th June, 2017 for arson of a

dwelling house. The sentence was one of seven years’ imprisonment, the last two of which were suspended on certain terms. The

offence occurred on the 18th December, 2016 and the accused had pleaded guilty at the first available opportunity on the 9th May,

2017. The offence occurred on the 18th December, 2016 and he pleaded guilty at the first available opportunity on the 9th May,

2017. He was fifty years of age at the time of sentencing. The dwelling house was his family home and that of his wife and four

children. At the time of the offence they were aged two, six, eight and eleven. There is reference in the transcript, in the context of

ownership of the property, to the fact that he was a “co-accused” but it appears that this was a typographical error and that, in

fact, he was and is a joint owner with his wife.

2. It appears that unhappy differences had arisen between the accused and his wife.

3. The accused worked abroad since 2008 and particular in the Netherlands from 2015.

He returned for Christmas holidays in Ireland on the 17th December, having last been back in the country during the summer. Unhappy

differences had arisen between the appellant and his wife. Unspecified conversations apparently took place between them on the

night of the 17th December. It appears that he asserted, and evidence was given to this effect by Detective Garda O’Connell, that he

was unable to accept the end of marriage although, equally, it appears from the probation report that when he returned on the 17th

December he intended to confront his wife about an affair in circumstances where he felt that a fool was being made of him by her on

Facebook. He is further described in the probation report as having been jealous of his wife.

4. In any event, in summarising the facts a Detective Garda O’Connell stated in evidence that as a result of what had occurred

between the accused and his wife on the night in question it caused a reaction with John Kelly and the following day at approximately

12pm whilst his children were inside in the house he locked the front door, went upstairs where he set two fires one in each bedroom,

went back downstairs and got his four children out of the house to safety, again locking the front door and setting a third fire. For

what is it worth he appears to have stated that he did not have any intention of hurting his children. He has asserted that his

conduct was a suicide attempt. The alarm having been raised by his oldest child neighbours arrived and apparently successfully

persuaded him to leave the house. When he emerged, it appears that he had placed a scarf around his mouth and he had stayed in a

downstairs room other than that in which he had set the fire. It seems proper to infer that this gives rise to a real doubt he truly

intended to kill himself.

5. As to the motive as given in evidence, it appears that he walked some miles to and back from the local town (Buttevant County

Cork) that on his return a “realisation hit him” that his marriage was over, a realisation that appeared to be catalyst for what he did,

or the tipping point as described by counsel. He was described by one of the paramedic personnel who attended at the scene

“compliant “but menacing and stressed. He had apparently a great deal of soot in his throat and mouth, in consequence whereof he

was taken to hospital for smoke inhalation. He was arrested later in the day, however, from all of which it is to be inferred that no

serious injury was suffered.

6. It would appear that one of the fires upstairs was set in a children’s’ bedroom and that there were two children present in it at

that time – one infers that he brought those children downstairs but it is not clear from the transcript whether those two were let out

separately from the two others (one of whom appears to have been the oldest child).

7. The extent of the repair cost to the house were estimated at the time of the sentence at €85,000.00. The accused and his wife

were co-owners. Unsurprisingly the insurers repudiate any liability. Further, at the time at sentence and apparently since they were

rendered homeless on the 18th December, his wife and family were living from week to week, without stability, in accommodation

provided by the HSE. It would appear from the victim impact report that the events have had a devastating effect and this is of

course unsurprising. We do not quote from it in extenso. His wife points out that she and her children were left with nothing except,

as she put it, the “clothes on our back”. The children have apparently undergone therapy. They did not at the time of sentence at

least wish to see their father and were afraid of him. The wife described the event, as we infer the aftermath, as a “nightmare”. She

said at that time that she had not received any adequate help form the accused to attempt to replace the loss or to ensure their

children had a roof over their heads. The report was apparently prepared in the week before the sentence.

8. It appears that the accused supported his family until the time of the offence. There was no dissent form the proposition that he

could not work as an electrician for, and such was his qualification, from the time he made bail.

9. The accused is said to be receiving therapy at his own expense from the time of his release from prison. He has also undergone

what is described as an orientation course to assist him in seeking employment.

10. The court had the benefit of a probation and welfare service report and is unfavourable to the accused. He informed the

probation officer, Elena O’Connor that on the occasion in question he was “in total despair” at the fact that his marriage had broken

down.

11. Whilst the accused continuously repeated in interview that he had no intention to harm the children, the probation officer noted

that the fires were started whilst the children were still in the house and the front door locked. He insisted in interviews that his

actions were led by his thoughts of suicide and not for other reasons. Again, the probation officer questions his assertion that he

intended to kill himself in as much as he covered his face with a wet cloth and resorted to a room other than that in which were the

fires were started.

12. She said that the accused identified himself as the victim, apportions blame for the offence on the wife’s actions, did not

demonstrate any empathy for the consequences of his behaviour on her, his children or others and believed that his actions were

justified by his mental state at the time. He apparently expressed remorse that he could not see his children or have a normal family

relationship. He commenced proceedings after his release from prison to secure access to his children. It appears he co-operated with

the assessment process, and he is described as being a moderate risk of reoffending. He has, however, ongoing grievances against his

ex-wife and her new partner and he told Ms. O’Connor that he had made complaints against both of them (to whom we do not know)

in respect of different matters.

13. He has a steady pattern of employment throughout his life.

14. There is apparently no record of any mental health concerns or psychiatric history and it does not appear that there is any

serious medical condition of any other kind. He admitted that alcohol had no impact on his decision. He apparently drank two litres of

cider the night before using whiskey in the house (initially unsuccessfully) to set one of the fires nor does he take any illicit drugs. He

is of previous good character. He does, however, regret the offence.

15. There is a suggestion in the submissions that the accused had addiction issues and was taking steps to deal with them. It is said

that such issues were related to marital breakdown and mental health issues. There is no evidence of this and what was said to the

probation service is entirely at variance with it.

16. He is explicitly stated after communication with his doctor not to be on any medication for psychiatric issues and without

diagnosis of mental illness (or psychiatric history). He told Ms. O’Connor that he was not anxious or depressed repeating that his

suicidal ideation was due to marital rejection and family stressors. She could not contact his counsellor so we simply do not know the

extent of the counselling, its purpose or effect.

17. The fundamental submission is that the learned sentencing judge erred in placing the headline sentence in the circumstances of

the case at ten years and the mitigating factors ought to have been applied to a lower headline sentence. It is further submitted that

the sentencing judge did not give sufficient weight to several of such factors and in particular that:-

“the appellant had no previous convictions, made every effort to ensure that he had no further contact (with his wife and

family), the fact that the offence was ‘committed in a particular set of circumstances which were virtually certain never

to be repeated’ that he was not an ongoing danger with a good work history.”

18. In our view the learned sentencing judge rightly rejected the proposition that the accused was in some sense a victim and

characterised his behaviour as “manic, reckless, dangerous” and which “exposed his own children to a level of danger which was

frightening”. He referred to the effects of the crime on the victims. He also had regard to the fact that according to the probation

report the accused even at the sentencing hearing had no insight into the emotional harm he had inflicted on this wife and children.

He referred, in addition, to the fact that the accused was mentally and physically well. He took into account his qualifications, his

work record and his previous good character. It is obvious that he also had regard to his age and the fact that it was unusual for a

person of his age to have committed such a serious offence.

19. It seems to us, accordingly that the learned trial judge undoubtedly took into account all relevant factors. He made it clear that

he was balancing aggravating and mitigating factors and for those reasons he not only reduced the headline sentence to seven years

but also suspended the last two years thereof for a period of two years subsequent to this release inter alia upon terms that he

should be under the supervision of The Probation Service nor have any contact with his wife or children save in accordance with the

order of a competent court.

20. We cannot see any error in principle. We think that a custodial sentence of five years was the minimum which could have been

imposed by the learned circuit court judge in the circumstances and we dismiss this appeal.