The Court of Appeal reduced Timothy Fogarty’s sentence for pointing an air rifle at a woman in Birdhill, Co. Tipperary, and intending to intimidate her. It substituted a three-year prison term, with the final 12 months suspended for two years after his release on the original bond conditions.
Fogarty was convicted by a jury at Tipperary Circuit Court on 16 October 2013 of having an electric-powered air rifle in a public place with intent to unlawfully intimidate Fiona Ryan, contrary to section 9(5) of the Firearms and Offensive Weapons Act 1990. The offence occurred on 20 June 2011. The trial court had imposed a four-year sentence, suspending its final 12 months for five years from his release.
The judgment said that at about 9.10am Ryan was walking on a roadway about 200 yards from her home when Fogarty, driving a jeep, lowered his window and shouted. She did not hear what he said and continued walking. He then drove across the road, stopped nearby, got out and pointed the rifle at her without speaking. Ryan screamed and ran towards home. Fogarty drove away. He later acknowledged meeting her that morning but denied pointing the rifle at her.
The court noted evidence that Ryan was very frightened, telling the trial court that her legs would not hold her up. It upheld the trial judge’s assessment that the impact on her was an aggravating factor. It also said the judge had been well placed to assess that impact after presiding over two trials in which Ryan gave evidence, despite there being no victim impact report.
Fogarty appealed on the grounds that the trial judge had wrongly placed the offence at the higher end of the penalty range and had not given enough weight to mitigating material in a psychologists’ report. The three psychologists’ report described his overall intellectual functioning as in the borderline range of intellectual disability, with his thinking and reasoning abilities exceeded by 99% of adults his age.
The appeal court held that the brief production of the rifle, in circumstances involving no other criminality, placed the offence in the mid-range before mitigation. It set a three-year starting point and identified an error of principle in the trial judge’s placement of the offence at the most serious end of the range. The court then resentenced Fogarty afresh, taking account of his current circumstances, reduced culpability as described in the report, difficulties he would face in prison and five certificates for completed courses. It said his answers about how the courses could aid reintegration and reduce future offending impressed the court.
The final 12 months of the substituted sentence were suspended for two years after release on the same bond terms: keeping the peace and being of good behaviour during that period.