An ex-businessman who, with others, burned a garda’s private car after she seized a vehicle for having no insurance, has been spared jail despite an appeal by prosecutors.
Neil Kelly, aged 41, with a last address at Bohatch, Mountshannon, Co Clare, had pleaded guilty at Ennis Circuit Criminal Court to the criminal damage of Garda Áine Troy’s car at Scarriff Garda Station in the early hours of March 19, 2013.
He was given a wholly suspended three-year sentence by Judge Gerard Keyes on May 1, 2015.
The Court of Appeal refused to review Kelly’s sentence yesterday following an application by the Director of Public Prosecutions on grounds that it was “unduly lenient”.
Giving judgement, Mr Justice Garrett Sheehan said it was a “borderline case” but the suspended sentence imposed by the Circuit Court judge was within the margin of appreciation obliged to be afforded to him.
Giving background, Mr Justice Sheehan said Garda Troy was on mobile patrol near Scarriff when she noticed a vehicle, which she had stopped the previous evening, at a service station. It was being driven by a third party and was seized by Garda Troy at the service station for having no insurance.
Mr Justice Sheehan said Kelly’s co-accused had been abusive to Garda Troy and had said to her that “you’ll see a silver spark later and you’ll know who did it”.
Kelly had intervened on Garda Troy’s behalf at the time and endeavoured to get his colleague to desist from misbehaving, to behave himself and submit to the garda’s request, the judge said.
The three men left, having taken some cans of beer from the car, and went to the pub, where they stayed for some time. They returned to Scarrif Garda Station two hours later, where they set fire to Garda Troy’s car, the judge said.
Mr Justice Sheehan said Kelly had a good working record and had a successful car valeting business but this collapsed immediately after locals became aware of his involvement in the offence.
He said Kelly paid Garda Troy €6,000 compensation and was also remorseful. Detective Sergeant Oliver Nevin said that, from what he had come to know, Kelly’s behaviour on the night in question was out of character. He had also disassociated himself from his co-accused and had moved to another address.
Mr Justice Sheehan said the evidence suggested that Kelly’s co-accused was the person who initiated the offence.
It was not only an offence against Garda Troy but “effectively an attack on the rule of law” that would require a prison sentence on that fact alone.
Mr Justice Sheehan said that, in one sense, a garda is always on duty and this crime interfered with Garda Troy in this regard and with the protection of the wider community.
The offence had a serious affect on Garda Troy, happening shortly before she was due to be married. The compensation paid by Kelly and his co-accused meant she was at no financial loss.
Mr Justice Sheehan said “this was a borderline case” and Kelly was “just about on the correct side of that border”.
There was sufficient mitigation — his guilty plea, his remorse, absence of relevant previous convictions, and his intervention earlier in the evening when his associate was disrespectful — to allow the Circuit Court judge to impose a suspended sentence, he said.
Mr Justice Sheehan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, refused the DPP’s application for a review of sentence.
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