The Court of Appeal reduced the prison sentences imposed on Michael O’Loughlin and Edward O’Loughlin for participating in the activities of a criminal gang, finding that the sentencing judge had made an error of principle.
The brothers had each received nine years in prison from the Dublin Circuit Court on 12 June 2012. The Court of Appeal substituted a sentence of six and a half years for each, to run from the same date to which the original sentences had been backdated. The appeal concerned sentence severity, not the convictions.
The offences followed a Garda investigation, Operation Foolscap, into a Galway-based gang described in the judgment as having 13 to 15 participants. Police monitored 110 days of audio recordings from vehicles used by the appellants. The recordings showed preparations connected with seven alleged offences: drug offences involving cannabis and cocaine, and four burglaries. The court noted that the burglaries involved domestic and commercial premises, but that police had ensured there was nothing of value at the targeted premises.
The men had initially gone on trial in February 2012 on charges of directing a criminal organisation. During the trial, a difficulty concerning the return for trial arose. They were recharged and pleaded guilty to the less serious offence of participating in a criminal organisation under section 72 of the Criminal Justice Act 2006. The judgment said the plea was valuable because it came early in a trial expected to last three to six months, although an admissibility ruling had gone against the appellants.
The sentencing judge concluded that the brothers were at leadership level and directed others to commit crimes. The appeal court rejected the argument that this conflicted with evidence describing the gang’s criminality as “mid range”: the witness was describing the gang’s level of criminal activity, while the judge was addressing the appellants’ positions within it. However, the appeal court said the sentencing judge’s reference to “directing” raised concern that he had blurred the distinction between directing a criminal organisation under section 71 and participating under section 72.
The court also found substance in the challenge to the judge’s treatment of the gap in the brothers’ recorded offending. It said that, given the evidence covered only a period of months and there had been a gap of some years in recorded offences, the judge’s suggestion that they had learned to avoid arrest by operating through an organisation involved impermissible speculation.
Taken together, those issues amounted to an error of principle. The Court of Appeal also considered further material showing that both men were pursuing degrees with the Open University. It concluded that nine years was unduly severe, taking account of the gang’s mid-level criminality and the circumstances of the plea.