Two burglars, whose crime was likened to coronavirus, have lost their appeals against sentence for targeting the home of a couple in their late 80s, while they were out attending Mass.
Armed gardaí had caught the Cork City criminals red-handed in the house after an intelligence-led investigation, which resulted in both receiving seven-year sentences.
Niall Fitzpatrick (53) of Corrin Close, The Glen, Cork City and Jerry O’Leary (62) of Brandon Crescent, Dillons Cross, also in the city, had pleaded guilty at Cork Circuit Criminal Court to the burglary at Kilberehert, Freemount, Charleville on October 19th last year.
The court heard that the two criminals and another man had hired cars, changed drivers, brought changes of clothes, hidden in woods and staked out their target over two days. It was described as a carefully planned and calculated crime.
Fitzpatrick, a father of five, has a baby he has not met due to being in prison during the pandemic. He has 70 previous convictions including for possession of firearms and ammunition with intent to endanger life, armed robbery of a post office and escaping from custody.
O’Leary, a father of 13 children, also including a baby, had 48 previous convictions, with eight for burglary, including one similar to this offence.
Judge Seán Ó Donnabháin said that the targeting of vulnerable people was particularly heinous.
“The practice of city criminals going into rural areas is a virus every bit as virulent as that we are experiencing at the moment,” he said, jailing them for seven years each.
They appealed their sentences to the Court of Appeal today last week, appearing together remotely from their prison.
Paula McCarthy BL, representing Fitzpatrick, argued that the judge had erred in placing the burglary at the higher end of the scale.
She said that, due to Covid, her client had never seen his child, who was just a few months of age at the time of sentencing.
She submitted that the judge had found that because Fitzpatrick was in his 50s, he couldn’t rehabilitate.
“I submit that just because he’s 53 does not mean he cannot rehabilitate,” she said. “He’s fit.” She said that too light of a discount had been given for his mitigating factors, and that this was compounded by not suspending any portion of the sentence to incentivise rehabilitation.
Patrick McCarthy BL, representing O’Leary, submitted that not all of his client’s mitigating factors had been taken fully into account. He pointed to O’Leary’s age, the fact that he was suffering from cancer and colitis and the fact that he had a young child, who was only a couple of weeks old when he went into custody.
“In the context of the mitigation put forward, the discount wasn’t proportionate,” argued counsel.
He also pointed out that there were no aggravating factors such as ransacking, violence or the use of weapons, and noted that the gang had made sure that the owners had left before entering.
Counsel also said that a portion of the sentence should have been suspended to allow for rehabilitation.
Donal O’Sullivan BL responded on behalf of the DPP.
“I doubt there’s another case before the courts with the level of preparation and sophistication,” he said. “The judge said it was hard to see a burglary with more determination.” He described the level of organisation as the most serious aggravating factor in the case and said that having a conviction for armed robbery was entirely relevant.
He added that the judge was entitled to reject that a 53-year-old man from the north side of Cork city wanted to become a fisherman. He was referring to what Fitzpatrick had indicated as his intention at the time of sentencing.
Justice Patrick McCarthy today delivered judgment on behalf of the court, which also included court president Justice George Birmingham (presiding) and Justice Brian Murray.
He noted a number of aggravating factors, which he said brought the offence to the level reflected in the sentence. These included a significant degree of planning or premeditation, the involvement of more than two offenders, the targeting of a home in a rural area and the targeting of a home because the occupants were vulnerable.
“We do not find any error in principle. We think the judge arrived at a headline sentence that was absolutely right,” he said.
Justice McCarthy pointed out that the mitigating factors were modest in each case and said that ample credit had been given for them. He also noted that the judge was under no obligation to suspend any portion of the sentence.
The court dismissed both appeals.