A North Kerry bachelor farmer convicted of the manslaughter of a 73-year-old neighbour by driving the pronged forks of an agricultural teleporter into his car in a row over a loud crow-banger had his five-year jail term replaced with a sentence of nine years in jail today.
The Director of Public Prosecutions appealed the sentence for undue leniency. In effect today, four years were added to the sentence.
Three judges of the Court of Criminal Appeal - sitting for the first time in Cork - Mr Justice George Bermingham, Ms Justice Isobel Kennedy and Mr Justice Patrick McCarthy presided over the appeal by the DPP against the sentence imposed by Ms Justice Carmel Stewart at the Central Criminal Court in the case against Michael Ferris, 64, of Rattoo, Ballyduff, Co Kerry who was last year found not guilty of murder but guilty of the manslaughter of Anthony O’Mahony, 73, on April 4, 2017.
Mr Justice Bermingham said in their judgement that Ferris told gardaí soon afterwards that he had wanted to kill his neighbour.
“There was a degree of pre-consideration. He had been thinking of it for a few days. So there was some element of pre-meditation. Taking that with the gross level of violence involved it has to be placed at the high end of manslaughter cases.
“Here there was an intention to kill. A sentence of six years with one suspended simply failed to reflect the enormity of what occurred – the taking of a human life,” Mr Justice Bermingham said.
He set a headline sentence of 15 years discounted by not more than one third and taking previous good character into consideration an actual sentence of nine years was imposed today, backdated to when Ferris went into custody.
Patrick McGrath, prosecution senior counsel, had appealed the leniency of the five-year sentence for manslaughter.
He noted that the judge set a 12-year headline sentence reduced by one third to eight years and then by a further two years for reasons which the prosecution said were not sufficiently clear. Further to that, the last year of the six-year sentence was suspended.
“The deceased was a 73-year-old farmer going about his business in April 2017. He had a dispute over a number of years over a crow-banger. It was operating for a week prior to this. It lets out a loud bang. It is not a permanent feature.
“He (Ferris) blocked the road with a teleporter – a large agricultural machine with a number of prongs at the front of it. Mr Ferris got into this teleporter and drove it into the car driven by Mr O’Mahony.
“He pushed the car back up the lane… It lifted the car and dropped it a number of times… The forks became embedded in the car,” Mr McGrath said.
The prosecution senior counsel said the basis for the appeal of the leniency of sentence was firstly, the level of violence, secondly, “a significant degree of pre-meditation”, thirdly, the extent of injuries and also the fact that the alleged provocation by the deceased was a matter which was left to the jury to decide.
In relation to the allegation of provocation, Mr McGrath said the crow-banger had been operating seasonally for three to four weeks at seed-sewing and for a similar period at harvesting time and had been operational for about 30 years.
Given that it had been going on for so long it did not explain why on that morning in particular someone would be caused to lose their cool, Mr McGrath SC suggested.
He added on the provocation issue that there was no threat being made by the deceased.
“The court is entitled to look at the low level of provocation and high level of violent response… There was a deliberate act of violence, a high level of violence and it continued for a considerable period of time… causing unspeakable and grotesque injuries… It was not a spontaneous reaction to provocative behaviour,” Mr McGrath said.
The prosecution lawyer said the accused admitted afterwards to gardaí the crow-banger had been operational for a week before that morning.
Asked what made that morning any different, Ferris said: “I just snapped I suppose… I blocked the road with the teleporter (and left it parked). I heard a car hooting. I came out to the transporter.”
Asked what he was thinking at that moment he said, “Nothing, Just to get him and that was it. Drop the forks down on him.”
Asked did he set out that morning to do that? Ferris told the gardaí, “Yes.” Then he added, “Because the banging business had been going on for the past 30 years. He was paying no attention to anyone who said to turn it off.”
Mr McGrath said there was a lack of remorse and the first apology came on the day of the sentencing hearing.
Ferris’s counsel, Brendan Grehan SC said the prosecution argument was based on a flawed premise which ignored the fundamental fact that the jury in the case had found his client guilty of manslaughter not murder.
He said Mr McGrath was seeking to “go behind the verdict of the jury” and he was no more entitled to do that than the trial judge or indeed the Court of Appeal itself which both have to have regard to the jury’s decision.
“This court has to respect the jury’s verdict. It cannot disregard the jury’s verdict and sentence the accused for murder or something close to murder. It cannot do that,” he said.
Mr Grehan said the trial judge had heard all the evidence in the case and contrary to Mr McGrath’s assertions, he believed her sentence was “a model of how a sentence ought be constructed".
He said the case was not one that could be classified as falling into the worst category of manslaughter cases because of the high level of provocation involved in the case which was accepted by the jury in its verdict.
He said that to speak of premeditation in the case as the prosecution was seeking to do given the jury’s acceptance of provocation was to in effect “go behind” the jury’s verdict which the court cannot do.
Mr Grehan said that the prosecution was seeking to suggest the provocation was of “a low and almost negligible level” but that was not the case as his client and others had to listen to the crow-banger going off for over 30 years.
Mr Grehan said if Ms Justice Stewart was deemed to have given Ferris a big discount when she reduced her headline sentence from 12 years to eight years because of his plea to manslaughter prior to trial, she was entitled to do so.
And she was equally entitled to reduce the term from eight years to six years given his previous good character.