The Court of Appeal has dismissed Michael Kirby’s appeal against an eight-year prison sentence for false imprisonment, finding the sentence fell within the range available to the trial judge and that no error in principle had been shown.
The appeal concerned a sentence imposed by Limerick Circuit Criminal Court on 6 April 2017, after Kirby pleaded guilty to false imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. The appeal judgment was delivered ex tempore on 3 December 2018 by Ms Justice Kennedy, with the court comprising the President, Mr Justice McCarthy and Ms Justice Kennedy.
The judgment recounts that on 14 September 2015, Kirby went to the home of an 18-year-old man, identified in the judgment as Mr Cosgrave, and demanded €150 for an alleged drug debt. He drove the young man to several locations with another man. At an area near a Limerick soccer club, Kirby struck him on the leg with a claw hammer while demanding cocaine. The judgment says Kirby later returned with a handgun, pointed it at the victim and pulled the trigger twice; the victim heard two clicks. Kirby said he was fortunate there were no bullets. The victim was also threatened with being taken “down the bog”.
The victim was then made to call another youth for replacement cocaine and was taken to a house, where Kirby produced a knife. The victim later reported the ordeal to his mother and sought medical attention. He had bruising and bleeding in the thigh musculature. The medical opinion was that he should make a full physical recovery, though anxiety and flashbacks might continue. The judgment says he had no continuing physical effects by the sentencing date. CCTV supported his account of the journey before the group reached the soccer club; the weapons were not found.
Kirby’s appeal argued that the sentencing judge had not identified the headline or notional sentence and had given insufficient weight to mitigation, including the timing and value of his guilty plea, remorse and rehabilitation. The Court of Appeal accepted that it would have been preferable for the judge to state a specific pre-mitigation figure. However, the judge had set the appropriate tariff at seven to ten years and imposed eight years after taking mitigating factors into account. The appeal court said the plea was early and materially valuable, and that the sentence gave Kirby every possible benefit.
The court described the offence as very serious and sinister, citing the sustained hammer attack, the staged threat with the handgun and Kirby’s relevant previous convictions. It noted the offence occurred within months of his release from custody. The court concluded that the eight-year term was firmly within the available range and dismissed the appeal.