Court of Appeal dismisses appeal against excessive sentence for demanding money with menaces and firearm possession.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: CCAOT0208/2024 Bill Number: WXDP0024/2024 Neutral Citation Number: [2025] IECA 253

Kennedy J. Burns J. Collins J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

- AND -

KENNETH KELLY

APPELLANT

JUDGMENT OF THE COURT delivered by Mr. Justice Anthony

M. Collins on the 20th day of November 2025

I. Scope of the Appeal

1. This is an appeal against a sentence of imprisonment of six years that Wexford Circuit Criminal Court (His Honour Judge James McCourt) imposed on Kenneth Kelly (hereafter ‘the appellant’) for the offence of demanding money with menaces, contrary to s. 17 of the Criminal Justice (Public Order) Act 1994 (Count 1). In making that order, the Circuit Criminal Court took into consideration two offences of possession of a firearm without a valid certificate, contrary to s. 2 of the Firearms Act 1925, as amended by s. 15 of the Firearms Act 1964 and s. 3 of the Firearms Act 1971.

2. The principal grounds of appeal are that the sentencing court imposed a headline sentence that was excessive in all of the circumstances; that the sentence ultimately imposed was disproportionate since it failed to take adequate account of factors advanced in mitigation; and that the Circuit Criminal Court failed to suspend any part of that sentence.

II. Evidence before the Circuit Criminal Court

3. The appellant pleaded guilty to Count 1 before Wexford Circuit Criminal Court. In October 2023, NC, LC’s father and employer, noticed that LC appeared to be edgy and upset. LC informed NC that, having repaid the appellant approximately €3,800 of a debt of €6,000 that he owed for purchases of cocaine, the appellant was pressurising him to repay the balance. NC transferred €2,200 to LC, who used it to discharge the remainder of his debt to the appellant.

4. At about 10:30am on 31 January 2024, NC and LC were working on a building in Gorey, Co. Wexford, when the appellant arrived and stated that he was looking for LC. The appellant addressed LC: “You owe me fucking money, one thousand euro, you’ve been ducking and diving from me, I want my money.” LC replied: “I don’t owe you money.” The appellant left the premises, saying that he would return on Friday, and instructed NC to deduct it from LC’s wages. NC replied: “I’m going to take nothing out of his wages he doesn’t owe you anything.” An hour later, the appellant returned together with another unidentified individual. The appellant proceeded to remonstrate with NC and LC about payment of an alleged debt of €1,000 which, it transpired, was being levied on LC as a form of tax for late payment. The appellant then began to shake a ladder on which LC was standing. NC intervened between them. The appellant said: “Make sure he has that money by Friday, or I’ll go to the jeep and get the gun and shoot him.” As he was leaving, the appellant turned to LC, saying: “When this is paid, I’m going to kick the living shit out of you” and, pointing to the unidentified individual who had returned with him to the site, said “This is who you owe the money to, have it by Friday or else.” In the light of those incidents and his concerns for the safety of his staff, NC closed the site for a number of days thereafter.

5. On 1 February 2024, NC and LC made complaints to An Garda Siochána arising from the events of the previous day. A search warrant was executed at the appellant’s home on 2 February 2024, as a result of which a handgun and ammunition were seized, together with the appellant’s mobile phone. A search of the latter disclosed that the appellant had sent a series of threatening messages to LC over a protracted period demanding payment of the alleged debt. LC’s responses to those messages disclosed that, as a consequence, he felt that he was under significant stress. By way of example, on 10 October 2023, LC responded to one message that “I just want this over and done with now, a bullet would be easier than all this shit now to be honest, better off to be honest.” Other replies from LC to the appellant’s messages demonstrated that he was suffering mental health issues as a result of the threats the latter had directed at him. On 6 February 2024, LC took his own life.

6. The appellant had twelve previous convictions, the most serious of which was for possession of a firearm, contrary to s. 2 of the Firearms Act 1925, in the context of an armed robbery that took place on 27 April 2007. Those offences had attracted a sentence of imprisonment of four years, the entirety of which was suspended.

7. The Circuit Criminal Court received evidence that the appellant had proffered an early guilty plea and had cooperated with An Garda Siochána at the time of his arrest and during the search of his home, although he declined to identify the person who had accompanied him on his second visit to the premises on 31 January 2024. The Court was also informed that the appellant suffers from medical issues as a consequence of gastric sleeve surgery he underwent in 2015, which prevents him eating solid food; struggles with his mental health; and is married to and lives with the mother of his twelve yearold child. A letter of apology from the appellant and a number of testimonials speaking to his good character were proffered to the Court.

8. The Circuit Criminal Court heard victim impact evidence from LC’s mother of the traumatic impact of the appellant’s activities and of her son’s death by suicide some six days after the events of 31 January 2024 upon her and the members of his family.

III. Judgment of the Circuit Criminal Court

9. Whilst the offence before the sentencing judge concerned the events of 31 January 2024, he took account of the fact that the appellant had persistently persecuted LC between October 2023 and January 2024. His Honour Judge McCourt described the demand as “a self-invented surtax because the payment of a perceived debt was late.” He took account of the appellant’s letter of apology and the various testimonials furnished on his behalf; the appellant’s medical issues; and the suffering of his wife and son by reason of his absence. The sentencing judge observed that the penalty to be imposed must be proportionate in that it must reflect the gravity of the offending conduct and have regard to the appellant’s personal circumstances. He added that he had to consider what was best in the interests of society at large.

10. Assessing the gravity of the offence, the sentencing judge found that he had to consider the harm done to LC and the impact of his death upon the members of his family. He considered the victim impact statement to be honest, straightforward, and not exaggerated. He examined the fundamental ingredients and specific circumstances of the commission of the offence. He had no doubt that the appellant had acted intentionally and persistently, in circumstances where it must have been apparent to him from the replies to his messages that he was putting LC under considerable mental stress. He observed that the appellant had pushed too far, that LC is dead and that it was “not difficult to connect the two”. He accepted that the appellant had shown some remorse, and gave him credit for his plea and the extent of his cooperation with An Garda Siochána. He identified the appellant’s previous convictions for firearms offences and armed robbery as aggravating factors.

11. The sentencing judge acknowledged that he had to strike a balance between the objectives of punishment, deterrence, incapacitation and rehabilitation. He found that there was no issue of incapacity. Although the appellant struggled with his mental health, there was nothing before the Court to show that he suffered from dependency or addiction. The threats that the appellant had made were very real, and a message had to go out to society that that type of behaviour was unacceptable.

12. By reference to those factors, His Honour Judge McCourt was satisfied that the offence attracted a headline sentence of eight years imprisonment. Taking into account, in particular, the appellant’s early plea and his previous history, he reduced that sentence to six years imprisonment. In response to a request from the appellant’s counsel to consider suspending part of the sentence by reference to certain matters adduced by way of mitigation, the judge stated that:

I have taken all that into consideration. I could have tailored it differently, he would have ended up with the same result. I could have tailored it as you are well aware and phrased it slightly differently, resulting in the same net sentence. So, no is the short answer to your question. As I said, read the texts.

IV. Ruling on the Appeal

(a) Disproportionate nature of the sentence

13. The appellant submits that, because the sentencing judge placed too much weight upon the appellant’s previous convictions and concluded that the appellant was wholly responsible for LC’s death without any evidence to support that finding, he erred by nominating an inappropriate headline sentence. The sentencing court also failed to take proper account of the mitigating factors that were brought to its attention. As a consequence, the sentence of six years imprisonment was disproportionate.

14. The headline sentence is the starting point for our consideration. We observe that the maximum penalty a Court may impose for the offence of demanding money with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994 is a term of imprisonment of fourteen years. The Supreme Court has provided useful guidance targeted at this category of offence. Having examined the guidelines produced by the Sentencing Council of England and Wales, at para. 37 of his judgment in People (DPP) v. Molloy [2021] 3 I.R. 494, Charleton J. held that:

There is insufficient material to go beyond general remarks here and in any event the approach in this jurisdiction is bordered by respect for the trial judge, the requirement before any change on appeal of finding a genuine error of principle whether the appeal is by the defendant or the prosecutor, and the setting of guidance whereby sentencing and appellate judges may have a map as to their approach. By way of summary, and for the purpose of guidance, it is possible to state the following: a consideration of the maximum sentence for harassment or menaces or blackmailing type of offences should involve a consideration of structured and thought-through planning that aims to cause real distress to the victim, most especially where what is involved is not an aberration brought about by severe emotional distress, but a prolonged campaign. In that regard, what must be borne in mind is that these kinds of offences are very serious for victims and become more so where personal factors are identified by the perpetrator so that the victim is leant on in a way which undermines the integrity of their personality. This kind of conduct has the effect of pushing emotions to the edge of manageability and of shaking what may be, or what may thereby become, an already fragile emotional state. Sentences of seven years may be appropriate as a headline tariff and worse cases involving gang action for cynical gain may tend more towards the maximum.

15. A number of the elements Charleton J. identified in that passage present themselves on the facts that underlie this appeal. The appellant conducted a prolonged campaign of demanding money with threats from LC that continued after the original debt had been paid. He claimed to be owed additional sums of money by way of ‘tax’ or ‘interest’. Evidence that the appellant had leant on LC in a manner that undermined the integrity of his personality, pushed his emotions to the edge of manageability and shook what turned out to be his already fragile emotional state, was before the Court in the form of the messages exchanged between them and his discussions with his father, NC. If the Supreme Court recognises that considerations of this type are, in principle, capable of justifying a headline sentence of seven years, it is difficult to see where, in a case where many, if not indeed all, of the elements that it identified are present, the sentencing judge erred in principle by imposing a headline sentence of eight years imprisonment. In fixing that sentence, His Honour Judge McCourt acknowledged the mental and emotional toll on LC’s state of mind, evidenced by his exchange of messages with the appellant. In so doing, he neither had to, nor did he in fact, find that the appellant had been “wholly responsible” for LC’s death.

16. The sentencing judge was also correct to identify as an aggravating factor the appellant’s relevant conviction on a guilty plea for a firearms offence in connection with an armed robbery. As he observed in passing sentence “…there’s a violent history running, there’s a stream of violence, there’s an undercurrent that I can’t ignore.”

17. It is our view that the appellant has not shown that the Circuit Criminal Court erred in its assessment of the gravity of the offence and of the appellant’s culpability.

18. We turn to the sentencing court’s consideration of the mitigating factors put before it. These include the appellant’s plea of guilty, his health issues and family circumstances, the remorse that he expressed and the extent of his cooperation with the investigation. The judgment of the Circuit Criminal Court shows that it considered all of these factors in mitigation in imposing sentence. At the hearing of the appeal, Counsel for the appellant conceded that the sentencing court had not erred in reducing by one quarter the sentence that it had imposed by reference to those factors. For our part, we identify no error in principle in that aspect of the sentencing court’s decision.

19. Taking these factors into account, we are of the view that the appellant has not shown that the sentence under appeal was disproportionate.

(b) Failure to suspend a portion of the sentence

20. The appellant submits that, in passing sentence, the Circuit Criminal Court failed to consider the principle of rehabilitation by not considering the possibility of a partial suspension of that sentence. Whilst it is conceded on behalf of the appellant that it is not required to do in every case, it is contended that it was appropriate in the light of the mitigating circumstances that he had brought to the court’s attention. It is further submitted that the sentencing judge misdirected himself by an apparent assertion that the suspension of sentences is available only where a guilty person suffers from dependency or addiction.

21. First, this Court has repeatedly held that, whilst a court may suspend part or all of a sentence to reflect factors in mitigation, it is not required to do so: see, for example, People (DPP) v. Doolin [2020] IECA 231, para. 25. The Circuit Criminal Court chose to take account of the factors in mitigation by affording the appellant a reduction of 25% from the headline sentence that it proposed to impose upon him. The appellant does not argue that the Circuit Criminal Court erred in its approach as regards that aspect of the sentence. Having obtained a reduction in his sentence by reference to factors in mitigation, it is not obvious why those same factors should operate to justify the suspension of part or all of that sentence.

22. Second, insofar as the appellant relies upon the principle of rehabilitation as a ground to suspend part or all of the sentence that was imposed upon him, this Court has held that a sentencing court must have a sound evidential basis before it if can exercise a discretion to suspend a sentence on that basis: see, for example, People (DPP) v. Doyle [2023] IECA 80, para. 43. The appellant adduced no evidence to show how a suspended sentence would incentivise his rehabilitation, by reason of which this ground of appeal cannot succeed.

23. We also observe that the citation from his judgment reproduced at para. 12, above, demonstrates that the sentencing judge considered the question whether to suspend part or all of the sentence and decided not to.

V. Conclusion

24. No error in principle in the decision of the Circuit Criminal Court having been identified, for the reasons set out in Part IV, above, the Court dismisses the appeal.