'Pest' jailed for pointing airgun at owner of local pub has jail term reduced on appeal
Published 09/11/2015 | 17:10
A “pest” jailed for pointing an air rifle at the female owner of a local pub he attended has had his three-year jail term reduced on appeal.
Timothy Fogarty (55), of Gurtnaskeha, Tour, Co Tipperary had pleaded not guilty to possession of an electric powered air rifle intending to unlawfully intimidate Fiona Ryan at Birdhill, Tipperary on June 20, 2011.
He was found guilty by a jury and sentenced to four years imprisonment with the final 12 months suspended by Judge Thomas Teehan on June 27 2014.
Fogarty successfully appealed his sentence today on grounds that the sentencing judge erred in placing the offence at the most serious end of the range.
Speaking on behalf of the Court of Appeal, Mr Justice Garrett Sheehan said Fiona Ryan was walking her dog along the road on the date in question when Fogarty, who was driving, saw her, lowered his window and shouted at her.
It seemed she did not hear Fogarty and he drove his vehicle across the road and pulled up nearby.
As Ms Ryan was approaching him, Fogarty got out of his jeep and pointed the air rifle at her. She screamed and ran to her home, the judge said.
Mr Justice Sheehan said there had been some tensions between Fogarty and Ms Ryan as well her brother who were both the proprietors of a local pub he attended from time to time.
Counsel for Fogarty, Colman Cody SC, said his client had a difficulty with alcohol, not with the quantity he consumed but it “simply does not suit him”.
Fogarty was a man who made poor judgments in social settings, Mr Cody said.
In the pub where the Ryans were proprietors, Fogarty was known as “something of a nuisance and pest”.
He would engage in certain practical pranks which weren't to the amusement of the clientel or owners, Mr Cody said, and on one occasion, he was asked to leave the pub having been boistrous, loud and a little overbearing.
There was no suggestion he was ever involved in any physical altercation, Mr Cody said, and Fogarty had no prior history of relevant offending.
Mr Cody submitted that the judge erred in placing the offence on the higher end of the range for this offence.
Mr Justice Sheehan said Fogarty had 36 previous convictions including two for drunk driving, five public order matters and a common assault over 20 years ago.
He was the owner of a small farm and his mother, who had lived with him, died a short time before he was sentenced.
Fogarty had attempted to set up an equestrian centre on his farm but this did not work out. He was then proposing to set up a paintball course on his farm and it was in this context that he acquired the airgun, an M15 4 RIS CARBINE.
He was characterised by psychologists as being on the extremely low range of intellectual ability and that his overall thinking abilities were exceeded by 99% of the adult population his own age.
Mr Justice Sheehan said the sentencing judge erred in locating the offence at the most serious end of the range.
Given the momentary nature of the incident and the circumstances in which it took place – no other form of criminality was involved – the Court of Appeal was of the view that the offence lay on the mid range of the scale.
Mr Justice Sheehan said he was entitled to mitigation due to his reduced cognitive functions.
Furthermore, the court was “impressed” with the answers he gave on how prison courses will help him reintegrate into the community and make him less likely to reoffend.
Accordingly, Mr Justice Sheehan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, sentenced him to three years imprisonment with the final 12 months suspended.
The court suspended the final year of his sentence for two years post release on condition he keep the peace and be of good behaviour and that he would not have any dealings with the injured party or any member of her family.