A MAN who was part of a masked gang who carried out a prolonged armed burglary at the family home of a business man has failed in an appeal against his 10-year sentence.
The Court of Criminal Appeal this morning upheld the 10-year sentence imposed on Brian McGinley (40) by Judge Anthony Kennedy in December 2010, after the Westmeath man was convicted by a Mullingar Circuit Criminal Court jury of aggravated burglary on February 13th, 2005.
McGinley, formerly of Blackberry Lane, Athlone, had denied being part of a gang wielding a sledge hammer, a baseball bat and iron bars who burst through the back door of the home of Damien Kilmartin in Athlone.
In a raid that lasted for two-and-a-half hours, Mr Kilmartin and his wife were tied-up and threatened in front of their three children and Mr Kilmartin’s niece.
During the raid Mr Kilmartin was threatened with buggery by one of the gang if he did not hand over the keys to a safe in the house. A jeep valued at €92,000 was stolen by the gang and jewellery and cash totalling almost €120,000 were taken from the house.
The jury agreed with the State’s case that the raiders carried the safe from the house to a car and at some stage one of the raiders suffered a blood injury. There was DNA evidence at trial that blood found on the boot lid of a car at the scene matched that of McGinley’s.
Father-of-six McGinley failed in an appeal against his conviction in March.
Mr Justice Nial Fennelly, presiding, said the appeal court did not consider the 10-year sentence to be disproportionate for what was an “appallingly serious offence” where an innocent family were threatened and tied up in their countryside home.
He said it was difficult to see how Judge Kennedy could be criticised for imposing a sentence of 10 years and the court would accordingly reject the appeal.
Moving the appeal, Mr Colman Fitzgerald SC had submitted that by using a starting point for sentencing of 14 years, which is the maximum sentence permissible for burglary, Judge Kennedy was effectively operating on the premise that there was a mandatory minimum sentence for aggravated burglary.
He said there was no basis in law for this.
Mr Fitzgerald said the fact that McGinley came before the court as a man with “only five convictions, all of which were relatively minor and some historic” should have been taken in to account by the sentencing judge as a mitigating factor.
He said there was “absolutely no evidence” as to which of the raiders had made the “particularly disgusting” threat of sexual violence against Mr Kilmartin and there was “certainly” no evidence that McGinley was the one who had.
Mr Fitzgerald said there was no evidence the comment emanated from a common design and for the sentencing judge to take it in to account was to say that McGinley was somehow responsible for it.
Counsel for the State, Ms Fiona Murphy BL, said that Judge Kennedy’s comment about the 14-year starting point was made “very much in passing” and it was clear from the sentencing judgement that it “certainly was not” viewed as a mandatory minimum sentencing tariff.
She said that McGinley was not afforded mitigation for his previous convictions as he had not come before the court as a man of previous good character.
Ms Murphy said there was also no suggestion that McGinley tried to distinguish himself from the “disgusting threat” made to Mr Kilmartin by giving evidence that he was not involved.