The Court of Appeal has set aside an eight-year sentence imposed on Rory Gahan for aggravated burglary, finding an error in the decision to suspend the final three years to reflect mitigating factors. The appeal was allowed on that basis alone. The court did not find error in the trial judge’s assessment of the offence’s gravity.
The ex tempore judgment, delivered by Ms Justice Mary Irvine on 17 December 2014, concerned an offence at a home in Graiguenamanagh, Co Kilkenny, on 9 January 2011. Gahan had pleaded guilty to one count of aggravated burglary. At sentence, the Kilkenny Circuit Criminal Court imposed eight years’ imprisonment, with the final three years suspended for five years subject to conditions.
The Court of Appeal reviewed the sentencing evidence. The victim, Mr Hayden, was 65 and lived alone. The judgment recounts that Gahan and Liam Foley gained entry by pretending to be gardaí. Foley smashed televisions, took €160 and medication, tied up Hayden, and poured petrol and white spirit on his hands. Foley also slashed Hayden’s face, causing an injury that required 12 sutures. The judgment says the sentencing judge accepted that Gahan played the lesser role, and the Court of Appeal found that she had taken this into account alongside the serious violence and its impact on Hayden.
Gahan’s counsel argued that the starting point for the sentence was too high, that his mental health difficulties had not received sufficient weight, and that mitigation should have reduced the prison term unconditionally before any further suspension for rehabilitation. The DPP’s counsel argued that the sentencing judge had properly assessed gravity and culpability and had discretion over how to account for mitigation and rehabilitation.
The appeal court rejected the challenge to the gravity assessment. It also considered a psychiatric report dated 2000 and found it neither significant in reducing culpability nor so material that its possible omission caused injustice.
The court accepted that there were significant mitigating factors, including Gahan’s guilty plea and rehabilitation from serious drug addiction. It held that suspending three years to reflect all those factors exposed him to the risk of losing their benefit if he later breached suspension conditions. The court therefore set aside the sentence for that error of principle alone. The judgment does not state a replacement sentence or further order.