DPP manages to increase sentence for burglar who threatened to kill pensioner

A recidivist burglar who assaulted and threatened to kill a 97-year-old woman in her home has had his six-year jail term increased by four years after a successful appeal by the Director of Public Prosecutions.

After gaining access to the victim’s home by offering to tidy her gardens, Paul McDonagh (aged 43) held his hand over the elderly woman’s mouth with such force that it cut her lip and repeatedly told her he was going to kill her. He then fled with the woman’s purse.

In December 2011 McDonagh was sentenced to nine years with three years suspended by Judge Martin Nolan at Dublin Circuit Criminal Court after pleading guilty to making threats to kill, assault of the woman causing harm and burglary of her home in Marino, Dublin on June 8, 2010.

Chief Justice Susan Denham today said the Court of Criminal Appeal was of the view that the offence was of the “utmost gravity”, and noted that McDonagh had 26 previous convictions for burglary and had served a 12-year sentence in the United Kingdom for a similar offence.

She said that McDonagh’s offending in light of his previous convictions presented a “very serious situation” and the court was of the view that the sentence imposed was a “substantial departure” from what could be regarded as appropriate.

Chief Justice Denham said the court would sentence McDonagh to12 years imprisonment, but would suspend the last two years of that sentence on condition that he be of good behaviour and cooperate with a management plan while in prison.

Counsel for the DPP, Mr Shane Costelloe BL, told the court that Judge Nolan had essentially been “unduly influenced” by the slight mitigating factors in favour of McDonagh and had lost sight of the “appalling forensic history” of the respondent, who had engaged in similar offending over most of his life.

Of McDonagh’s 48 previous convictions Mr Costelloe said, 26 were for burglary where the substantive offence involved finding an elderly lady living on her own and burglarising her home, while prior to this offence, McDonagh had been jailed for 12 years in the United Kingdom for breaking in to a woman’s home, tying her up and assaulting her.

Mr Costelloe submitted that any credit given for McDonagh’s plea of guilty had to be seen in the context that it came only after his elderly victim had given a deposition at the District Court.

He said that in circumstances where the maximum sentence that could have been imposed was one of 14 years, the imposition of a sentence of nine years with three years suspended amounted to an error in principle.

Counsel for McDonagh, Mr Michael O’Higgins SC, told the court it was accepted that the circumstances of the offence “do not speak rather than shout very, very loudly”.

However, Mr O’Higgins said the court had to look at the offence as objectively as possible and have regard to the fact that the “fallout” of the victim’s physical injuries were not “as great as they might have been”, while the offence was of a short duration.

Counsel said the court should be familiar with Judge Nolan, who shared a common characteristic with Mr Justice [Paul] Carney in that his judgements tended to be “quite short and pithy”. Nevertheless, Mr O’Higgins said, the highlights of a case were invariably contained in these judgements and Judge Nolan brought an “enormous amount of experience”.

He said that Judge Nolan was a “very experienced” sentencing judge who had sentenced a “huge number of people” and was “very rarely appealed” against, which was a testament that he gets his sentences “about right”.

He said that McDonagh, who is of no fixed abode but is originally from Salthill in Galway, came from the travelling community and had a “horrific life”, being the subject of “horrendous physical and other forms of abuse”.

Counsel said that McDonagh was also a “serial self-harmer” and was subject to a very difficult prison regime where he was under 23-hour lock-up due to security issues and was a “very isolated” prisoner.