A judge erred in handing out a nine-year prison sentence to a man who threatened to kill former colleagues of Detective Garda Colm Horkan in a hearing held days after the officer was shot dead on duty, the Court of Appeal ruled today.
nda Gavigan, 37, was originally arrested on suspicion of vandalism and taken to Garda Station in Castlerea, Co Roscommon on the morning of October 10, 2019 after using a wheel wrench and bricks to smash in several windows of a house.
After his arrest at Four Mile House, Co Roscommon, Gavigan, of Doorty, Co Roscommon, Gardai threatened to kill from the back of the squad car.
He continued to threaten Gardai when he was being held at the station.
Gavigan later pleaded guilty to one count of criminal damage, one count of manufacturing an article capable of causing serious injury, and one count of making threats.
Judge Francis Comerford of the Roscommon Circuit Court sentenced Gavigan on June 26, 2020 to three years for criminal damage and two years for count of offensive weapons, and ordered that these two sentences should be imposed concurrently.
However, when Judge Comerford sentenced Gavigan to seven years and six months for threatening gardai, with the final 15 months suspended, he ordered that sentence would begin after the completion of the previous sentences – meaning the defendant would serve nine in total years and three months for the offences.
Earlier that month, on June 17, Det Gda Horkan, 49, was shot dead after responding to a phone call in Castlerea.
Gavigan’s lawyers appealed the sentence imposed, saying it was too severe and the judge handed down consecutive sentences to accommodate the threats made at Garda – even though those threats were not included in the indictment.
In a judgment delivered today by Ms. Judge Isobel Kennedy in session with the Court President, Mr. Judge George Birmingham and Mr. Judge Patrick McCarthy, the Court of Appeal reversed the successive sentences of six years and three months.
At the sentencing hearing, Ms Justice Kennedy said it had been possible to include a separate count to include events at Garda Station.
“From our point of view, the distinction in this case is very fine,” she said.
“Consequently, we find an error of principle and will overturn the judgment of count six[of the indictment].”
The judge nominated a seven-year primary sentence and reduced the sentence by a year before sitting out the final 12 months.
The new five-year term, the judge added, would run concurrently with penalties imposed for criminal damage and possession of an article.
At a hearing on Thursday, Desmond Dockery SC said for Gavigan that the house in question was a rented property owned by the applicant’s uncle and that his client had a dispute with one of the tenants.
Mr Dockery said his client visited the house three times between 4am and 10.40am and smashed windows in the house each time.
“It was senseless violence carried out under alcoholic sedation,” the attorney said.
He said the sentence imposed on his client was “excessive due to the fact that consecutive sentences were imposed”.
Mr Dockery said his client threatened Gardai when he was brought into the van immediately after his arrest for criminal damage and the threats were therefore part of the same “transaction”.
He said the sentencing judge considered the threats in his submission to be separate criminal offenses.
“The fundamental flaw is that someone can only be convicted for the crime for which he was convicted,” the attorney said. “In reality, this was a single crime, a single transaction.”
“Feelings were running high at the time (of the sentencing) because on June 17 the late Garda Horgan had been shot dead,” added Mr Dockery.
Cathal ó Braonáin BL, for the head of the public prosecutor’s office, told the court that the sentence imposed reflects not only the need to protect members of the An Garda Siochana, who intervene on behalf of the public when reports of wrongdoing arise, but also the rights of people in private homes.
“Under these circumstances, the judgment cannot be regarded as a fundamental error,” said the lawyer.
Noting that Gavigan continued to make threats against Gardai hours after his arrest, Mr Justice Birmingham remarked: “Even when he had time to sober up, he was still at it.”
https://www.independent.ie/news/man-who-threatened-to-kill-former-colleagues-of-detective-garda-colm-horkan-has-sentence-reduced-from-nine-years-to-six-41534398.html The man who threatened to kill former colleagues of Detective Garda Colm Horkan has been sentenced to six years from nine years