A judge erred in imposing a nine-year jail term on a man who threatened to kill former colleagues of Detective Garda Colm Horkan in a sentence hearing that took place days after the officer was shot dead in the line of duty, the Court of Appeal ruled today.
Enda Gavigan (37) was originally arrested on suspicion of criminal damage and taken to the garda station at Castlerea, Co Roscommon, on the morning of October 10, 2019, after he had used a wheel brace and bricks to smash several windows of a house.
After his arrest at Four Mile House, Co Roscommon, Gavigan, of Doorty, Co Roscommon, made threats to kill against gardai from the back of the patrol van.
He continued to make the threats against gardai when he was detained at the station.
Gavigan later pleaded guilty to one count of criminal damage, contrary to the Criminal Damage Act 1991; one count of production of an article capable of inflicting serious injury, contrary to the Firearms and Offensive Weapons Act 1990; and one count making threats, contrary to Section 5 of the Non-Fatal Offences against the Person Act 1997.
Sentencing Gavigan to three years for the criminal damage and two years for the offensive weapon count on June 26, 2020, Judge Francis Comerford at Roscommon Circuit Court ordered that both these sentences were to run concurrently.
However, when Judge Comerford sentenced Gavigan to seven years and six months, with the final 15 months suspended, for making threats against gardai, he ordered that this term would begin on completion of the previous sentences - meaning the accused would serve a total of nine years and three months for the offences.
Earlier the same month, on June 17, Det Gda Horkan (49) had been shot dead after responding to a call at Castlerea.
Gavigan's lawyers later appealed the sentence imposed on the grounds it was too severe and that the judge had imposed consecutive sentences to take account of the threats made at the garda station - although these threats had not been included in the indictment.
In an ex tempore judgement delivered today by Ms Justice Isobel Kennedy, sitting with Court President Mr Justice George Birmingham and Mr Justice Patrick McCarthy, the Court of Appeal quashed the term of six years and three months which had been imposed consecutively on the appellant.
Delivering the judgement, Ms Justice Kennedy said there had been scope to include a separate count to include events at the garda station.
"In our view, the distinction in this case is a very fine one," she said.
"Consequently, we find an error in principle and will quash the sentence imposed in respect of count six (on the indictment)."
Nominating a headline sentence of seven years, the judge discounted the term by one year before suspending the final 12 months.
The new five-year term, the judge added, would run concurrently with the sentences imposed for criminal damage and possession of an article.
At a hearing yesterday Desmond Dockery SC, for Gavigan, said the house in question was a rented property owned by the appellant's uncle and that his client had been in a dispute with one of the tenants.
Mr Dockery said his client visited the house three times, between 4am and 10.40am, and had smashed windows at the house on each occasion.
"It was mindless violence carried out in alcoholic stupor," counsel said.
He said that the sentence handed down to his client had been "excessive by virtue of the fact consecutive sentences were imposed".
Mr Dockery said his client had made the threats to gardai when he was placed in the van immediately after his arrest for criminal damage and the threats were therefore part of the same "transaction".
He said that it was in his submission that the sentencing judge regarded the threats as distinct offences.
"The error in principle is that someone can only be sentenced for the offence on which they have been convicted," counsel explained. "In reality, this was one single crime, one single transaction."
"Feelings were high at the time (of the sentencing) because on the 17th of June, the late Garda Horgan had been shot," Mr Dockery added.
Cathal ó Braonáin BL, for the Director of Public Prosecutions, told the court that the sentence imposed reflected not only the need to protect members of the An Garda Siochana, who intervene on the public's behalf when there are reports of wrongdoing, but also the rights of individuals in private dwellings.
"The sentence cannot be consider an error in principle in those circumstances," counsel said.
Noting that Gavigan continued to make threats against gardai hours after his arrest, Mr Justice Birmingham observed: "Even when he had time to sober up, he was still at it."
