The Court of Appeal has dismissed appeals by Niall Fitzpatrick and Jerry O’Leary against seven-year prison sentences for burglary, finding the sentences justified by the planning and targeting of an elderly couple’s rural home.
In a judgment delivered on 21 December 2020, the court considered whether the sentencing judge had wrongly placed the offence at the highest level of the burglary sentencing scale, given the absence of violence or confrontation. It concluded that the judge’s nine-year headline sentence was appropriate, though lenient, and that the reduction to seven years properly reflected mitigation.
The men pleaded guilty to burglary at Cork Circuit Court on 24 April 2020. The judgment said Gardaí had received intelligence that the pair and a third person intended to burgle the home of an elderly person in rural County Cork. Gardaí later watched the group stake out the home of a couple aged 88 and 86. With Gardaí inside the house while the couple went to mass, Fitzpatrick entered through a bathroom window while O’Leary waited outside. Armed Gardaí arrested them inside.
The sentencing judge identified the operation’s organisation and preparation as aggravating factors, including hired cars, surveillance of the area, changing drivers and a change of clothes. The Court of Appeal also relied on the significant planning, participation by three people, and targeting of a rural home whose residents were elderly and vulnerable. Both appellants had previous convictions relevant to burglary offending.
The appeal submissions argued that the sentences were excessive and that the judge gave insufficient weight to personal circumstances, guilty pleas and rehabilitation. The prosecution accepted there was no violence or threat of violence, no confrontation with the residents, and no spree or campaign of offending. It argued that other aggravating factors supported the sentences.
The court said the guilty pleas were the principal mitigating factor. It described the other mitigation as modest and said the judge had given ample credit for it in reducing the headline terms to seven years. It also held that a sentencing judge is not obliged to suspend part of a sentence to encourage rehabilitation, and found no evidential basis to criticise the decision not to do so.
The appeals were dismissed. The judgment concerns the severity appeals only; it does not alter the seven-year sentences imposed for burglary.