Court of Appeal dismisses appeal against sentence for threats to kill Gardaí and assault, upholding proportionality.

THE COURT OF APPEAL [205/2018] Birmingham P. McCarthy J. Kennedy J.

BETWEEN THE DIRECTOR OF PUBLIC PROSECTIONS RESPONDENT AND PATRICK JOSEPH O’REILLY APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 13th day of March, 2020 by Mr. Justice McCarthy

1. This is an appeal against severity of sentence. On the 3rd of February 2017, the appellant was charged with three counts of Threat to Kill pursuant to s.5 of the Non-Fatal Offences Against the Person Act, 1997 and two counts of assault contrary to s.2 of the Non-Fatal Offences Against the Person Act, 1997 were also preferred at a later date. The Appellant pleaded guilty to all charges in early course and was sentenced on June 29th 2018. In relation to the threats to kill which pertained to an Inspector Hunt and a Garda Donoghue, the appellant received a sentence of five years imprisonment in respect of that pertaining to the former, in respect of the first threat to kill Garda Donoghue, he received a sentence of two years imprisonment and three years imprisonment for the second. An assault charge involving the grazing of Garda Donoghue’s face was described as being taken into consideration. The sentences of two and three years were made concurrent to each other but consecutive to the five year sentence. The last three years of the entire sentence was suspended on condition that the appellant be of good behaviour and keep the peace for a period of three years following his release and further, that he would not ingest alcohol and would engage with addiction services for this period of time. The sentences were backdated to February 3rd 2017.

2. It was alleged that on 3 February 2017, at approximately 7am, the appellant had made a threat to kill Detective Inspector Hunt to other members of An Garda Síochána whilst they were searching a hotel room in which the appellant was staying. The appellant told those members that he knew that Detective Inspector Hunt resided near a church in Wexford and regularly walked his dog and that they should see what will happen to him. The appellant claimed to have been extremely intoxicated at that time and to have no memory of making the threat although this was not accepted by Inspector Hunt.

3. Further, on that same day at approximately 3pm, the appellant was travelling as a passenger in a car that was stopped by Gardaí. The appellant was told to remain in the vehicle by Garda Donoghue but the appellant alighted the vehicle and swung at Garda Donoghue, grazing his face. It was accepted that the appellant was intoxicated. Garda Donoghue used his incapacitant spray on the appellant and a struggle ensued on the side of the road. The appellant spat into Garda Donoghue’s face. Once restrained and in handcuffs, the appellant told Garda Donoghue that he would “put a bullet in your head”.

Later, when in custody in a cell in Cahir Garda Station, the appellant told Garda Donoghue “I meant what I said on the side of the road, I’ll put a bullet in your head.”

4. The appellant was sentenced on the 29th of June 2019. The judge regarded the offences as “particularly serious”. In referencing the serious nature of the offence, the judge had this to say:-

“The effects on the two injured parties have been presented in the course of victim impact statements. The effects have been profound. I know Inspector Hunt to be an extremely dedicated garda as I said, and he is at least as robust as the average garda in this country. But the most robust policeman or woman could not but be affected by the threat which was made to him and which concerned his family who are not, of course, members of the gardaí. The effect of this was that he required, at presumably great expense to the State, 24 hour garda protection for some time and thereafter very significant protection also for several months.”

The judge went on to say:-

“Now, I have to have regard, of course, to the principle of totality in sentencing.

Now, Mr O'Reilly has entered a guilty plea. That is important in every case, it is very important in every case. It is certainly of huge importance here. The facts that Mr O'Reilly was acknowledging his wrongdoing in open court, by pleading guilty on arraignment to these charges had to be of considerable comfort to the two gardaí involved. The fact that Mr O'Reilly was taken into custody on the date of the offences was something which must have registered also with the two gardaí. But of course, although Inspector Hunt, when he was questioned about this, did not advert to it, there must have been a concern that although Mr O'Reilly was in custody, there might be a danger that somebody associated with him could attempt to carry out the threats. And that could not have been far from their minds. Mr O'Reilly has apologised and apologised very profusely to both gardaí. I regard that as important but much more of much more importance is the undertaking given here today that neither Inspector Hunt nor his family, nor Garda Donoghue nor his family, have anything to fear from Mr O'Reilly or anybody connected with him at any time in the future. That I regard as very significant.”

Grounds of Appeal

5. The appellant lodged his appeal on a single ground that the learned trial judge erred in law in imposing a sentence which was excessive in all the circumstances of the offence and the appellant. Submissions

6. The appellant submits that the sentence imposed was unduly harsh in all of the circumstances. While the appellant does not argue that it was an error in principle to impose consecutive sentences for the two separate incidents, a relevant factor in sentencing the appellant that was not taken into account by the learned Judge, was that they occurred within hours of each other, within the same day, both when being searched and/or arrested by members of An Garda Síochána. The appellant submits that this offends the principle of totality.

7. The appellant submits that the judge did not give a headline figure for any sentence imposed and consequently does not indicate what weight or value was given by him to the mitigating factors. The sentencing judge did not give a pre-mitigation figure in any of the sentences imposed. He only identifies the threat against Inspector Hunt as being in the “top range” and as against Garda Donoghue as being at the “very top of the middle range”. The appellant submits that given the nature and complexity of this case, the judge’s failure to explicitly set a headline sentence was an error in principle.

8. Further, it appears that the learned Judge did not make any discount for the mitigating factors except to suspend the consecutive sentence of three years on conditions. It appears that the mitigating factors only led to the learned Judge suspending the last three years of the total sentence when he says “Now, in view of the mitigating factors, I am prepared to suspend the last three years of that sentence….”. The appellant submits that where there were considerable mitigating factors, to only use them to suspend a part of the total sentence and not to reduce the specified sentence is an error in principle. The only reduction in sentence applied by the learned Judge was made with reference to the totality principle. The judge said “I am imposing a sentence of five years’ imprisonment, which would undoubtedly be greater were the question of totality not a consideration.”

Further, the judge only refers in the vaguest of terms as to what that sentence would otherwise have been.

9. The appellant submits that the placing of the threat to kill Inspector Hunt at the “top range” was an error in principle. It is accepted that the Inspector gave evidence himself of the difficulties caused to him by the threat. However, this was not correctly balanced by the sentencing judge with the level of culpability of the appellant. The appellant was intoxicated at the time he made the threat (this was not confirmed or denied at the sentence hearing), it was made at a time when a number of Gardaí were present, and the appellant and his hotel room were being searched when the appellant felt angry and impotent, there was nothing to substantiate that such a threat would be carried out, and the threat was not made directly to the Inspector. The appellant was remanded in custody later that day. The fact that the appellant knew where the Inspector walked his dog and broadly where he lived would not be unusual in a rural community and did not evidence surveillance or similar. It is submitted that in all of the circumstances, the sentence imposed was unduly severe.

10. The respondent submits the sentences imposed were proportionate in the following circumstances: the threat made in the Limerick hotel room was sinister and considered, and made reference to where the victim lives and where he walks his dogs. The fact that the accused had had two vehicles seized in the course of a recent operation also supports the sinister and considered nature of the threat. This was not a spontaneous outburst.

This threat had a particular effect on Inspector Hunt. His evidence of having decided to retire from the Gardaí and ultimately resiling from that position is compelling. Further, the judge assessed this offence as requiring a deterrent sentence. The respondent submits that the previous convictions of the appellant are relevant in this case. The appellant’s previous convictions are indicative of a career criminal. They include serious offences such as serious weapons offences. In the circumstances of threats against Gardaí these were significant previous convictions. They ought to be considered in terms of the likely effect of the threats. They are also relevant to the appropriate sentence in the context of assessing the proportionate sentence for this accused. The respondent submits that the imposed sentences were appropriate in the judge’s assessment of these offences as being in the top range and in the top of the middle range but also having regard to the early guilty plea. In all of the circumstances, a period of five years to serve albeit with three additional years suspended was a very fair sentence for this accused in light of his previous record, the serious threats made to two individuals, and the significant consequences for them.

Discussion and Decision

11. We do not think that the fact that the judge did not set out a specific headline sentence is of fundamental importance, even it departs from the ideal. We think the categorisation by the sentencing judge of the charge in respect of Inspector Hunt as in the top range and of Garda Donoghue as at “the very top of the middle range” was correct. We think that a number of the aggravating factors were common to all three charges, but we deal with what we might call Inspector Hunt’s case first.

12. The following are the aggravating factors present in this offence:- i. The offence was a threat to kill, rather than merely to cause serious harm;

ii. The appellant gave details of his home and personal life;

iii. The fact the victim was not only a member of An Garda Síochána, but one who had direct dealings with the appellant in the past and was known to him in the course of his duties over twenty years;

iv. The threat was directly linked to an earlier Garda operation in which Inspector Hunt had been engaged and involved in the seizure of two Mercedes vehicles;

v. The serious nature of his previous convictions, including those relating to violence and firearms;

vi. The threat was sinister, considered and not a spontaneous outburst; vii. The fact that the threat necessitated close police protection of Inspector Hunt including his home after the event;

viii. The personally devastating consequences for him, including his fears for his family and the adverse effect on his career.

13. At a risk of a degree of repetition, so far as the offences relating to Garda Donoghue are concerned, the following aggravating factors arise:- i. Again, the fact that the appellant made a threat to kill, rather than cause serious harm;

ii. The repeated nature of the threat, though we note this was the subject of a separate charge;

iii. The fact that that the threat was directed towards a member of An Garda Síochána, acting in the course of his duties. This factor was made more serious by the fact that it was made by a person with previous firearm convictions;

iv. The terms in which the second threat was made, couched in terms of putting a “bullet” in Garda Donoghue;

v. These threats, more particularly, the second made in the Garda station, were also sinister, considered, and not spontaneous.

vi. The personal impact on the victim and his family.

14. The mitigating factors present are very limited, those being:- i. The pleas of guilty;

ii. The apologies made;

We recognise the necessity for general deterrence as a factor in sentencing in cases of this kind.

15. It is clear to us that the judge took all relevant factors into account. The judge imposed a proportionate sentence and correctly applied the principle of totality. We think that in all of the circumstances of the case there was no error in principle. We accordingly dismiss this appeal.