Court of Appeal dismisses appeal against four-year sentences for intimidation using IRA threats to deter legal action.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Butler J.

Appeal No.: 121/15

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Francis Kelleher

Appellant

Judgment (ex tempore) of the Court delivered on 29th February 2016 by Mr. Justice Mahon

1. The appellant pleaded guilty at Cork Circuit Criminal Court on 23rd April 2015 to four counts, namely, that on 27th June 2012 at the

Spires, Innishannon, Co. Cork, on 6th July 2012 at Barna, Innishannon, Co. Cork, on 8th July 2012 at Barna, Innishannon, Co. Cork,

and on 8th January 2013 at Barna, Innishannon, Co. Cork, did, with a view to compelling one Niall Kelleher, to abstain from doing an

act which he had a lawful right to do, wrongfully, and without lawful authority intimidate the said Niall Kelleher, contrary to s. 9 of the

Non Fatal Offences Against the Person Act 1997.

2. The appellant was sentenced on 30th April 2015 to four years imprisonment on each of the four counts, with the sentences

directed to run concurrently.

3. The appellant has appealed against these sentences.

4. The appeal is essentially based on the grounds that insufficient weight was accorded by the learned sentencing judge to a number

of factors, including his plea of guilty, his lack of previous convictions, his remorse and apology, the shame brought upon himself and

his age. He is now sixty years old.

5. The plea of guilty, it must be said, while welcome, did come late in the day. The learned sentencing judge commented, in relation

to the late plea of guilty that “not alone did he coerce the victim but he made him wait”.

6. The facts of this case are most unusual. An attempt to persuade an individual from pursuing his legal entitlement to institute legal

proceedings and have such proceedings determined by a court of law by the issue of threats is a very serious matter, even in

circumstances where such threats might be said to be relatively mild or which failed to cause the victim of such threats any serious

fears or concern. In this case, however, the threats used were particularly nasty and understandably caused Mr. Kelleher, the victim,

very great fear or himself and his family over a prolonged period. The fact that the appellant utilised the name of the continuity IRA in

these threats, undoubtedly for the purposes of instilling in the victim the maximum amount of fear, makes the offences particularly

reprehensible. The victim absolutely believed that he and his family were in serious danger from these threats.

7. Mr. Kelleher’s life was threatened in a very realistic manner. The extent of the terror inflicted on him can be measured by the need

he felt to check under his car on a daily basis over a period of time and the extent of his fear of strange cars and people walking

around his neighbourhood.

8. The fact that the appellant withdrew and paid, and was prepared to pay, a substantial amount of money, to people to make these

threats further emphasises the seriousness of the offence. It excludes any possibility that the threats were made on a whim or as a

result of a moment of madness; on the contrary, it suggests planning and determination and a total disregard for the well being of the

victim, the appellant’s nephew, and his family.

9. Remarkable features in this case are the fact that the appellant and his victim are closely related, and that the appellant himself

was a priest and a hospital chaplain, vocations which are associated with caring for others.

10. The sentencing judge considered imposing consecutive sentences on the four counts but ultimately decided on what in effect was

one four year term, having remarked before hand on the appellant’s remorse and apology, and the unlikelihood that he would re-

offend.

11. The four year sentences, while they may have been at the upper end of the appropriate sentencing scale, were in net terms,

nonetheless within the discretion of the sentencing judge having regard to the number of the offences and their nature. The

sentences do not constitute any error of principle.

12. This appeal is therefore dismissed.