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Director of Public Prosecutions -v- Kierans
Neutral Citation:
[2015] IECCC 1
Central Criminal Court Record Number:
CC 0113/2013
Date of Delivery:
Central Criminal Court
Judgment by:
Donnelly J.

Neutral Citation: [2015] IECCC 1




SENTENCING JUDGMENT of Ms. Justice Donnelly delivered on the 20th day of April, 2015

1. Tragedy is the word that the children of the deceased woman, Patricia Kierans, and the defendant Oliver Kierans, have used to describe the death of their mother. It is tragic that the defendant caused the death of Patricia Kierans, who at 54 years of age had commenced a new life and a new relationship after 33 years of marriage to the defendant. It is a tragedy that the children of the late Mrs. Kierans as well as her own birth family have endured the loss of a woman, who, by all accounts was a warm, generous lover of life who liked to socialise through singing and dancing. She was a kind woman who, on the day she was killed, had been due to bring an elderly neighbour to the graveyard, something she regularly did. She took great care of her children, bringing her daughter to Irish dancing competitions where she became an All Ireland champion. She brought her boys to soccer and GAA matches. All four of her children have, in turn, grown up to be hard working people with families of their own.

2. This tragedy was brought about by the criminal act of the defendant. He was tried on a count of murder and the jury returned a verdict of not guilty of murder but guilty of manslaughter. It is agreed by the prosecution and the defence, and I also agree that the correct and proper interpretation of that verdict is that it is one of manslaughter through gross negligence. The defendant was also convicted of two offences contrary to the Firearms Acts as amended in relation to events which occurred later on the same day that he had killed his wife. Those occurred at a premises known as the Square Bar, Market Square, Bailieborough, County Cavan. The first was an offence of possession of a sawn-off shotgun in circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, contrary to s. 27(a) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act, 2006 as amended by s. 38 of the Criminal Justice Act, 2007. He was also convicted of an offence of possession of the same sawn-off shotgun with intent to endanger life at the same premises contrary to s. 15 of the Firearms Act, 1925 as substituted by s. 42 of the Criminal Justice Act, 2006.

3. The circumstances in which those offences were committed are as follows. Oliver and Patricia Kierans had met as teenagers in Bailieborough, County Cavan, they formed a relationship and married when they were both in their early twenties. At the time of the death of Patricia Kierans they had been 33 years married. They had four children, three boys and a girl, three of whom were living in Australia at the date of the unlawful killing. The fourth, Shane, was on route to Australia.

4. In the spring and early summer of 2013, what has been confirmed as unhappy differences arose in the relationship. In the build up to leaving the family home Patricia Kierans had gone to a neighbour one evening who gave evidence that she was stressed. He went round to the family home where he had a conversation with Mr. Kierans. He outlined to Mr. Kierans that Patricia was upset and concerned for her safety and the concern was aired regarding a firearm legally held by the defendant. Mr. Kierans laughed that off as being incorrect and said that he had simply been cleaning his gun. Both that witness and another witness on a separate occasion had been brought into the house by Mrs. Kierans and shown the shotgun underneath the mattress.

5. Mr. Kierans was a licence holder of two firearms, a rifle and a shotgun. He used the guns for hunting purposes. The firearm involved in this case was a double barrel shotgun. At some point in the run up to the day that Patricia Kierans was killed the firearm was modified by Mr. Kierans. He shortened the barrels of the shotgun by sawing them off and also sawed off the stock of the firearm. In effect, it became what is known as a sawn-off shotgun. That action on the part of Mr. Kierans clearly took him outside the terms of his licence as it is not permitted in law to own or possess a sawn-off shotgun.

6. Mrs. Kierans moved out of the family home and went to reside with her sister who lived in Cavan town. She spent the summer months living there with her sister, Mairead. Mr. Kierans initially appeared to take stock of matters. He was a man who consumed fairly substantial quantities of alcohol on a daily basis. However, he effectively went on the dry for the summer.

7. Mr. Kierans frequented a local bar called the Square Bar in Bailieborough. This was owned by a Philip Clarke who was also known as Nixy Clarke. He knew both Mr. and Mrs. Kierans. Mr. Kierans worked on an ad hoc basis in the bar getting it ready for functions and getting stock up and down and cleaning the place. Mrs. Kierans also did some part-time work there and at least one of the children also worked there part-time when at school or college.

8. Mrs. Kierans did not have contact with Oliver Kierans over the summer. She began a new relationship to such an extent that when she was released from hospital the day before she was killed it was to this man she turned.

9. Mr. Kierans became aware of this new relationship at the very end of August or indeed about the 1st of September. He appeared to go back on the drink with a vengeance from the Sunday preceding the 5th of September, 2013. He thereafter sent a number of text messages proved in evidence asking her to reconsider the relationship. He received a text in reply in which Patricia Kierans said unequivocally that the relationship was over and that she did not want further contact from him.

10. The 5th of September was a Thursday and on that occasion both Patricia Kierans and Oliver Kierans collected their social welfare payments in Bailieborough. Mr. Kierans had worked quite late into the night at the bar and there is footage of him working and drinking pints of Guinness into the early hours of the morning. At about half past seven he went to a shop in the town which was also an off licence and bought two naggins of whiskey. There was evidence that Oliver Kierans had driven the car he had borrowed from his sister into the car park at Thomas Street where it remained at the top right hand section of that car park. That position gave him a line of sight of Patricia Kierans car which she had parked there earlier.

11. When she entered the car park on foot, it appears that Oliver Kierans drove diagonally across from where he was to where Patricia Kierans’ car was parked. He left his car in a haphazard state described by some witnesses as abandoned. The car was not locked by him. The owner of the local restaurant gave evidence of seeing Mr. Kierans carrying a metal object as he approached Mrs. Kierans. Mrs. Kierans got into her car on the driver side and Mr. Kierans got in on the passenger side and they were seen driving out of the car park and making the journey the short distance to the family home. They parked around the back of the family home and there were a number of workers in a community centre having a tea break when one of them saw Mrs. Kierans walking ahead of Mr. Kierans through the shed which leads into the back garden of the house. That witness described that she thought Mrs. Kierans had stumbled as she went through the door.

12. From the information available it appears that they both went into the house and upstairs to the back bedroom of the house. According to Mr. Kierans, his wife went up there to reclaim some clothes which belonged to her brother. From the evidence of Mr. Kierans that he gave at the trial and which appears by virtue of the nature of the verdict to have been accepted by the jury, the gun which had been concealed under the mattress was now visible on the bed. Mr. Kierans gave evidence that he formed an intention to commit suicide, this was because he had a perception that his denials to his wife Patricia about an alleged affair with a woman who was the partner of Philip Nixy Clarke were not being believed by her. He referred to and thought of this woman as “the ghost.” Evidence was adduced during the course of the trial that Mrs. Kierans was of the view that there was a connection between her husband and this woman and that this was not correct.

13. The evidence of Mr. Kierans which forms the basis of the verdict of manslaughter was to the effect that he picked up the firearm with the intention of taking his own life, to demonstrate comprehensively the lack of truth of the allegation of the affair. The firearm discharged in the direction of Patricia Kierans, who was a very short distance away and entered through her left chest area. The evidence at the trial was that the shotgun had to be loaded, that the safety catch located on the top side of the shotgun had to be positively switched to the off position and that pressure must be put on the triggers within the normal range of pressures.

14. Mr. Kierans’ evidence suggested that either he or his wife had somehow moved the bed. He said he was not sure because it was on castors but in his words: “she ended up dead anyway”. He also said that when he went to lift the gun Mrs. Kierans had said to him: “No, I believe you” and that the gun went off: “and with me not having a good hold of it, the yoke at the top of it came back and caught the top of my hand here and Pat hit the floor and she was stone dead”. There was evidence given by ballistics experts for both the prosecution and the defence. No evidence was given as to any defect in the safety catch mechanism although there was some dispute as to whether the shotgun could discharge if dropped from a height. No evidence was placed before the jury that the gun had discharged in the bedroom because it had been dropped from a height. So, the extent to which there was any issue with the safety catch mechanism was only in the context of it being dropped from a height.

15. It appears from all of the evidence that this incident must have taken place at some point prior to twelve noon on the 5th of September 2013. The next sighting of Mr. Kierans was at about half past four that afternoon. It is inferred from the empty whiskey bottles at the house that he had consumed the whiskey that he had bought earlier while still at home. He left with the firearm concealed in the inside of his jacket, in a pocket that he had manufactured by ripping a hole in the lining of the jacket. This permitted the sawn-off shotgun to be concealed while being held snug within the jacket. He also took with him a number of cartridges, two of which were later discharged in the nightclub area of the Square Bar, with others being found in his pockets on arrest.

16. He went to the Square Bar, having travelled there by car, and sat in a seat that was not his customary seat and ordered a drink. In the meantime Mairead Murray, who was a sister of Patricia Kierans, had begun to have concerns that all was not well. She received a number of odd texts on her handset and I am satisfied beyond reasonable doubt that these texts were sent from Mr. Kierans using Patricia Kierans’ phone. She went with her daughter and her daughter’s partner to Bailieborough. They called to the Square Bar and challenged Mr. Kierans as to where Patricia was but he denied all knowledge. When they arrived at the bar, he had a Nokia phone and it was put to him that it was his wife’s, but he denied that. That phone was later found hidden in the cold room of the bar. The barman had noticed that Mr. Kierans was quite intoxicated, far more than usual. Mr. Kierans’ sister Majella was very irritated because she was seeking the return of her car and could not get hold of him. During the course of an interaction with his sister, the barman, Mr. Ritchie Quinn, noticed that Mr. Kierans appeared to have the car keys which belonged to a car of the same make as that which Patricia Kierans drove. On his own initiative he went to search for the car and found Mrs. Kierans’ car in the Thomas Street car park and he saw inside that car the keys belonging to Majella. Mr. Kierans also behaved oddly to the other bar tender who took over as he said he might not see her again.

17. Patricia Kierans’ sister and her family had gone to the Gardaí and it was decided that Garda Tommy Fay would go in and talk to Oliver Kierans. When Garda Fay got there it appeared that Mr. Kierans had gone downstairs and Garda Fay and two other colleagues, the barman Richie Quinn and another customer all went downstairs to see if they could talk to Mr. Kierans. Two camaras caught the interaction that occurred there. The place was in darkness when they went down. Mr. Richie Quinn took off to the right to switch on the lights at the far end of the bar and Garda Fay was making his way across the room to where Mr. Kierans was sitting on a high bench with a table at chest height. When the light came on, it is clear that Mr. Kierans takes the shotgun from his left-hand side, passes it across to his right-hand side and it was the prosecution’s case, and clearly accepted by the jury and indeed visible on the CCTV, that he had his finger on the trigger and that he appeared to be trying to discharge it and that afterwards he looked at the trigger with a quizzical look. Garda Fay gave evidence in the trial that he was afraid for his life at that stage. All of those downstairs retreated very quickly and appropriate protocols were put in place whereby a critical incident was declared, a cordon was put up and a trained negotiator was brought to the scene.

18. In accordance with the protocol, certain people known to Oliver Kierans were brought to the scene and they conducted monitored phone calls with Oliver Kierans. Two of those calls were admissible in evidence and placed before the jury. They were calls between Garda Tommy Fay and Mr. Kierans and a call between Mr. Philip Clarke and Mr. Kierans. Mr. Kierans made certain admissions that Patricia was dead up at the family home and entreated the guards to go there. There were numerous efforts to entreat him to come out of the premises and at about 3.20a.m. he exited the rear of the pub. It is to the credit of An Garda Siochana that this critical incident, or in common parlance this siege, was resolved peacefully.

19. The defendant was arrested by Detective Sergeant Lardner, cautioned and said: “I will admit, I’m sorry.” He was brought to the Garda station, detained there and in due course seen by a doctor and taken to Cavan General Hospital where he was diagnosed with a chest infection. He was examined and declared fit to be interviewed after two days. A number of interviews were led in evidence and in those he acknowledged that he had discharged the firearm essentially resulting in the death of his wife. He resolutely insisted that he had done so accidentally. He made reference to an attempt to take his own life and he also said he had suffered a significant memory loss in respect of many aspects of the chronology.

20. In terms of Mr. Kierans’ personal circumstances, the evidence is that he has no previous convictions and he had not come to the adverse attention of the Gardaí. He lived in Bailieborough all his life. He had a work history pretty much throughout his life. He had previously worked as a lorry driver and then went on to work as a taxi driver and then started work doing the odd jobs and maintenance for Mr. Clarke at the Square Bar. He was born on the 26th of July, 1957, and is therefore 57 years of age at present.

21. It was confirmed that in the recording with Garda Tommy Fay, it is recorded that Mr. Kierans said: “I wouldn’t harm you, Tommy” and that Garda Fay replied that: “I know you would not harm me.” It was the case that Garda Tommy Fay was the local guard, well known in the community and that Mr. Kierans would have known him to say hello to. It was confirmed that Mr. Kierans was the eldest of some eight children and that his own mother had died when he was a teenager of about fifteen years of age. He had helped out the family considerably at that stage being the older child with the younger siblings. He received a primary school education went to secondary school in Bailieborough but left school after first year and took to working with his father who had worked as a mechanic. In 1995 after the lorry business, he commenced a taxi business. His wife was also involved in this and there was evidence in the trial that she had driven the taxis.

22. I have had regard to the Victim Impact Reports that I have been given from each of the children of the deceased and also from the other relatives of the deceased. The terms in which I have described her in the opening part of this sentencing judgment comes, in the main, from those reports. It is clear that the loss of this kind-hearted, life-loving mother, sister, and aunt has caused great pain and hurt.

23. The overriding principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. It is necessary for me to identify the range of penalties applicable to each offence and to locate this offence on that range and thereafter apply the mitigating factors to arrive at the appropriate sentence.

24. The offence of manslaughter or of unlawful killing of another person encompasses a very wide range of facts. With reference to assault manslaughter as Hardiman J. said at para. 42 in People (DPP) v. Kelly [2005] 2 I.R. 321: “those…wide range of facts…make it difficult to establish [a] very precise range of sentencing.” In this case, we are dealing not with assault manslaughter but with a case of manslaughter by gross negligence. In both assault manslaughters and manslaughter by gross negligence the court is, in effect, sentencing a person for a consequence that they did not intend. In an assault manslaughter, there was no intention kill or cause serious harm but there was an intention or at the very least a recklessness concerning some harm towards the person. In a gross negligence, case no harm is intended to a person.

25. In this case, the Director of Public Prosecutions has not made any submission as to where on a scale this particular offence of manslaughter may lie, as no guidelines have been provided by the Court of Appeal or the Court of Criminal Appeal in relation to manslaughter. The defence did not attempt to place it on a scale either. No Court of Criminal Appeal or Court of Appeal judgments were opened to the court and the only reference the court was given was to another count of manslaughter in which Mr. Justice Carney sentenced a person to seven years imprisonment. This appears to have been for the death of his girlfriend in circumstances where she apparently intervened while he was trying to kill himself with a gun. That sentence was given apparently after a plea of guilty. I am told there were similarities and dissimilarities in that case but these were not set out in any detail before me.

26. I have carefully considered this matter and I am of the view that in the same way as assault manslaughter may attract a wide range of penalties depending on the circumstances, so too will manslaughter through gross negligence. I reject any view that manslaughter through gross negligence must automatically, by virtue of the lack of any intention to harm a person, fall on a lower end of the scale than assault manslaughter. I say this because the criminal blameworthiness may, in fact, be far greater for gross negligence manslaughter. I give an example, a person involved in a verbal argument which becomes heated may strike out at another person, thereby causing him to stumble and fall backwards, sustaining a catastrophic head injury from which he dies. That person, namely the person who strikes out, may well be considerably less criminally blameworthy than a person who, having drunk excessive amounts of alcohol, gets into a car and on a dare drives the wrong way down a motorway for many kilometres, thereby causing a multiple pile up and the death of another person.

27. Indeed, it seems to me that some assistance may be drawn from the fact that in relation to the offence of dangerous driving causing death a maximum penalty of imprisonment of ten years is permissible. However, on occasion a person may be charged with the offence of manslaughter, presumably on the basis that the negligence involved was so gross that it required at least the potential for a greater sentence than the maximum ten year sentence permissible.

28. In this case the offence involved a firearm, which had been deliberately and indeed unlawfully shortened so that it became a sawn-off shotgun. That was done apparently by the defendant for ease of killing himself. That action had the result that he was therefore in a position to attempt such an action in the presence of his wife. Furthermore, and again contrary to regulations and conditions of the grant of a firearms licence, the firearm was not kept in secure accommodation but was left lying on the bed. Furthermore, as every mentally competent adult knows, and indeed most children over the age of reason also know, a firearm is an inherently dangerous object and great care must be exercised when handling same. Indeed, by virtue of its particular characteristics, a firearm is at least as dangerous as a motor vehicle, indeed probably more so in its specific purpose is to inflict death or serious harm on another living being and therefore has an inherent capacity to inflict such death or harm on another person. Handling a shotgun while intoxicated and especially handling it in a confined space in the presence of another human being, while intoxicated, or even while emotional or upset is a particularly dangerous and thereby particularly grossly negligent act. Mr. Kierans was a man who was a firearms holder, it appears for most of his adult life. He, more than anybody else, must have been aware of the dangers involved, yet regardless he put himself in a position where with the gun loaded, the safety catch off, his finger on the trigger, that the weapon could be discharged in the direction of his wife, even accepting that the gun was discharged because either himself or his wife moved the bed, this does not negate the fact that it was a grossly negligent and highly dangerous situation which he and he alone had created.

29. In all those circumstances, I am of the view that this is an offence which falls within the upper range of gross negligence manslaughter. That range starts, in my view, at twelve years imprisonment. The upper end of that range must, in my view, be reserved for a case in which the gross negligence resulted in multiple deaths or perhaps those cases where, with precise and detailed knowledge of the risk of death, a grossly negligence course of conduct is undertaken, motivated by financial reasons. In my view, this case is at the lower end of the upper range of manslaughter sentences for gross negligence.

30. In the circumstances of this case, I believe that the appropriate penalty on the scale is one of twelve years. I do so given that the negligence was gross in circumstances set out above where the entire incident was brought about by the apparent refusal of Mr. Kierans to simply accept the fact that his wife had moved on with her life and that the issue of the “ghost” or the allegation of an affair had, by that time, an importance in his mind only in light of her clear determination to move on with her life and I say that in the context of him undertaking the action which he did in her presence.

31. I now turn to the mitigating factors in this case. I should first comment upon the fact that there is one mitigating factor that is conspicuous by its absence, that is a plea of guilty. Indeed, if there had been an offer of a plea of guilty but a refusal by the Director to accept such a plea, even in the absence of a formal plea to that offence I would, on the basis of the decision in People DPP v. Colclough [2010] IECCA 15 be obliged to consider the matter as one in which a plea of guilty had been tendered. No indication was given to me that such a plea was tendered and therefore I am dealing with this on the basis that such plea was not tendered. Indeed, the evidence of Mr. Kierans in the trial would suggest that he did not view this as a case in which he had any criminal responsibility. There was a continual reference to an accident in the character references submitted on behalf of Mr. Kierans. It must be noted that while this may be described as an accident, it was also a criminal act. The failure to accept responsibility for that criminal act means that there can be no mitigation under that heading.

32. The main point of mitigation in favour of Mr. Kierans is that he is a man with no previous convictions. He is also a man who has led a life where from a very early age he was left with partial responsibility for the upbringing of six of his younger siblings in circumstances where his own mother died young. It is also a mitigating factor that in the course of his 33-year marriage to Patricia Kierans they between them raised four children in a loving and caring manner and this is reflected in the fact that his children have, in fact, stood by him during the course of the trial and sentencing, while clearly grieving for the loss of their mother. He is also clearly a loving grandfather and the circumstances of imprisonment will make it difficult for contact to be kept with those children, particularly where the majority of them are now living in Australia.

33. I have considered the question of remorse. This was not something that was particularly urged upon me, but I have considered it as there is reference in Shane Kierans’ letter concerning his father saying that his father is “hurting enough, as we all are”. I have listened to Mr. Kierans give evidence in the course of the trial and it was clear to me that a huge amount of the regret over this incident relates to the predicament he finds himself in now. It was very hard to discern any real remorse from what he said or indeed from the tone of what he said. However, I do accept that he felt, even at a relatively early stage after this killing, for his children and the fact that they had lost their mother. I also accept that despite the fact that he left his wife alone after her death and denied two others the opportunity of finding her at an early stage, he did say an act of contrition in her ear, which I accept was directed towards her situation and not his own, and he also was anxious during the course of the recorded conversations to have the Gardaí go round to the house and recover her. In those circumstances, I am prepared to accept that he is not an entirely indifferent man to what he has done and that he does feel regret at what he has done that goes beyond his own mere self interest.

34. The issue of alcohol consumption was raised in relation to the matter. In my view, the issue of self induced intoxication is a factor that goes towards the gravity of the offending in a case like this. Such too would be the situation if we were dealing with manslaughter through gross negligence in a road traffic situation. Furthermore, the intoxication of the defendant may explain an action, but it is not an excuse for the commission of a crime. That has been stated repeatedly by the Court of Criminal Appeal and indeed has been recently restated by the Court of Appeal in a decision called the People DPP v. Douglas Ward [2015] IECA 18. Furthermore, in this case I have not been presented with any evidence that Mr. Kierans has subsequent to this taken steps to address his alcoholism. Indeed, in the course of his evidence he denied that he had any problem with drink, which flew in the face of the objective evidence that had been given in relation to his daily consumption of alcohol. His own counsel, quite rightly in his speech to the jury, did not support that view of his client’s circumstances. In my view, the issue of alcohol consumption is quite properly a factor in the ingredients that comprise the gravity of the offending, but do not provide any mitigation for this defendant.

35. In the circumstances that I have outlined, the gravity of the offence is mitigated by the particular personal circumstances of the defendant. I have taken into account the impact on his children and his grandchildren in particular, his own previous good character and his regret. In all the circumstances, I sentence Mr. Kierans to nine years imprisonment for the manslaughter of his wife, Patricia Kierans.

36. In relation to the offence of s. 27 (a) of the Firearms Act, 1964 as amended, the offence suspicious possession and to the offence of possession with intent to endanger life contrary to s. 15 of the Firearms Act, 1925 as substituted, the DPP has submitted that this is an offence that is at the higher end of the scale. Mr. Sammon for Mr. Kierans could not quarrel with the terms of the sentencing range. I find that both these offences are at the higher end of the scale.

37. The reasons for finding that these are firearms offences at the highest end of the scale are that they occurred in circumstances where Mr. Kierans had already picked up a firearm and accidentally shot and killed his wife. He remained in the house drinking for some considerable period of time and left later in the day. He did not contact anybody to notify them as to what had happened but concealed his sawn-off shotgun in the modified pocket in his jacket and went to a bar in town with additional cartridges. Given the evidence in the trial to the effect that there were two discharged cartridges in the shotgun when found in Nixy’s bar and that there was another discharged cartridge found in the bedroom of the house, the shot size of which matched the pellets found in the body of the late Mrs. Kierans, it is clear that he had reloaded the shotgun in the interim.

38. The jury were told that if the only reason he had the shotgun was for the purpose of killing himself that they should acquit him. Instead they convicted him of both the unlawful possession of the shotgun in suspicious circumstances and the possession with intent to endanger life. He had the shotgun with him and indeed used the shotgun for the purpose of resisting his arrest. He deliberately pointed the gun, where he had his hand on the trigger, at a member of An Garda Síochána who, in fact had come in off duty to try to find out what was happening with the disappearance of Mrs. Kierans as he knew both of the Kierans’. We need no reminding that An Garda Síochána is an unarmed police service. This is a fact that is well known the length and breath of the country. In those circumstances, the pointing of a shotgun in the manner he did to endanger the life of a member of An Garda Síochána and indeed possibly the other Gardaí and the two concerned citizens must truly be at the higher end of the scale.

39. I have had regard to the case of People (DPP) v. Ryan [2014] 3 JIC 1802 which deals with the offence of possession of a firearm in suspicious circumstances, that is the offence under section 27 (a). In that case, the court held that in general an offence at the lower end of the range ought to attract a sentence of five to ten years, an offence in the middle of the range ought attract a sentence of seven to ten years and an offence at the top end of the range a sentence of ten to fourteen years. That is in circumstances where the minimum presumptive, although non mandatory sentence, is one of five years and where the maximum sentence is fourteen years.

40. In the circumstances as set out above, which include the fact that he had already taken a life through the accidental discharge of the firearm, that he left the home with the sawn-off shotgun in a modified pocket carrying with him additional cartridges and reloading the shotgun, I place this offence in the top range which carries the sentence of between ten to fourteen years. In all the circumstances, it is not at the lowest end of that scale, but it is one where the appropriate sentence for the offence, absent mitigation, is eleven years.

41. I have referred to the mitigating factors set out above and I will not repeat them again here but I do take them into account insofar as they are particularly relevant to his offence. In all the circumstances, the appropriate sentence when considering the mitigation factors is one of eight years.

42. In relation to the third count on the indictment, no indication was given to me as to what that scale may be. No indication was given to me as to what the range may be and I have not bee able to find out a particular range. However, I have had regard to the decision in People DPP v. Ryan and the methodology used by the Court of Criminal Appeal in that case. I have also had regard to the statement of the Court of Criminal Appeal in the case of People DPP v. Renald [2001] 11 JIC 2311 on the issue of the presumptive minimum sentence in a section 15A misuse of drugs offence, that while the fixing of a maximum sentence is an indication of the seriousness of the offence, but that the fixing of a mandatory minimum sentence is even more instructive in determining a sentence. The Court of Criminal Appeal in Renald went on to say that “[e]ven though that [presumptive minimum] sentence may not be applicable in a particular case the very existence of a length mandatory minimum sentence is an important guide to the courts in determining the gravity of the offence and the appropriate sentence to impose for its commission.”

43. In a s. 15 firearms offence, the maximum penalty available is life imprisonment and there is a minimum presumptive, although not mandatory, sentence of ten years provided for. In my view therefore, it appears to me that an offence at the lower end of the range ought to attract a sentence of between ten to fourteen years. An offence in the middle of the range ought to attract a sentence of between fourteen to seventeen years and an offence at the higher end of the range ought to attract a sentence of seventeen years and beyond. In my view, if there had been an ulterior motive above and beyond the mere resistance to being apprehended by the Gardaí, such as the further committal of another substantive offence, for example robbery, then this would fall on a scale well beyond that of seventeen years. However, I am of the view that the appropriate penalty, absent mitigating factors, given the circumstances surrounding this offence, is one of seventeen years.

44. I refer to the mitigating factors I have outlined above and apply them here. I was also asked to consider in the context of whether this was a matter where the presumptive minimum sentence might be reduced, whether there was any material assistance given by Mr. Kierans. I will consider the aspect of material assistance under this heading of mitigation. It does appear from the case law on drugs offences that material assistance can include assistance given by a defendant in the course of interviews with Gardaí where an aspect of the case against him is admitted. It was said that the admission by Mr. Kierans that he was the man on the video could amount to such material assistance. It seems to me that it might amount to material assistance, but in the context of the case as a whole such material assistance was bordering on negligible. The CCTV footage was real evidence apparent to any jury in circumstances where Garda Fay was going to be in a position to identify both himself and Mr. Kierans on the footage and any identification by Mr. Kierans as the man in the picture would lend very little assistance to the investigation. There were other witnesses who had also seen him point the gun, including the barman who can be seen on the CCTV ducking down behind the bar when the gun is pointed. The lack of material assistance must also be considered in circumstances where despite pointing the gun at the guard Mr. Kierans did not even accept that he had the gun in his possession for suspicious circumstances, not to mind that he was committing the offence of possessing it for the purpose of endangering life. I wish to make it clear that I am not in any way treating his plea of not guilty as an aggravating factor, because clearly it is not. I am merely pointing out that as regards material assistance to the overall investigation and indeed the prosecution of this offence virtually nothing of any real assistance to the actual offences was proffered by Mr. Kierans.

45. It was also urged upon me that Garda Fay, in the course of the recorded telephone conversation, agreed with Mr. Kierans that he knew he would not harm him. In my view, that has to be seen in the context of those conversations as a whole. It is clear from the conversations that the other parties were trying to keep Mr. Kierans calm and not do anything that might precipitate any action on his part that would lead to him harming himself or indeed harming others. Similarly, I view the fact that Garda Fay did not wish to put in a victim impact report as a matter personal to Garda Fay and perhaps to his standing within the community in Bailieborough. This was, without doubt, an offence of considerable seriousness, where an unarmed Garda was placed in fear of his life and others, including a civilian, were also placed in fear. I am, however, prepared to take the statement by Mr. Kierans in the course of that conversation as an indication of regret that he had put this well known local Garda in such danger.

46. In all of the circumstances, taking into account the position on the range of severity of this offence that I have placed it and taking into account as best I can the mitigating factors in relation to Mr. Kierans, including his age and previous good behaviour and his family circumstances, I am of the view that the appropriate penalty is one of twelve years imprisonment.

47. While there is a disparity between the sentence imposed for an offence where a loss of life has resulted and the sentence imposed where no loss of life resulted, this is, as can be seen from what I have said already, as a direct result in the difference in the nature of the offences, one being an offence where the jury found there was an intentional element which was not present in the offence of manslaughter. Furthermore, the offence of possession of a firearm with intent to endanger life was carried out after he had already killed his wife, the late Patricia Kierans, in a criminal act of gross negligence and finally it is due to the particular legislative provisions regarding the approach to sentencing for possession of firearms offences.

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