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 on Friday.
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 gardaí from the back of the patrol van.
He continued to make the threats against gardaí 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 26th, 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 gardaí, 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 17th, 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 judgment delivered on Friday 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.