No jail for man who took part in two robberies that forced terrified pensioner from home

Joseph Lernihan, with an address at Finnuremore Park, Mullagh, Co Clare, had pleaded guilty at Ennis Circuit Criminal Court to two counts of robbery at the home of the then 68-year-old Michael McMahon on two separate occasions in February 2012.

On March 3 2014, Judge Carroll Moran gave Lernihan an entirely suspended three-year sentence, ordered him to pay €3,780 compensation and ordered that a Volkswagen Passat that he purchased with the proceeds of his crime be forfeited.

The Court of Appeal agreed last week with counsel for the Director of Public Prosecutions, Sinead McGrath BL, that Lernihan's wholly suspended sentence was unduly lenient.

However, the court refrained from imposing a prison sentence on him because incarceration now might "jeopardise the progress" he had made since original sentencing and he was ordered to undertake 240 hours of community service in lieu of a 12-month sentence.

Speaking on behalf of the Court of Appeal today,, Mr Justice George Birmingham told Lernihan that he was “absolutely, positively on your last chance”.

Mr Justice Birmingham said quite a number of people “will feel you ought not to get that chance”.

He told him that many will feel he was lucky to get a chance the first time and “you are lucky” to get another one this time around.

The judge told Lernihan that if he got himself into trouble again there would not be a further chance and if he came back before the courts again for any misconduct the court would feel he was throwing the chance “back in the court's face”.

Giving background to the case Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said Michael McMahon lived alone in a rural part of West Clare.

It seemed his lifestyle was quite a simple one, the judge said. His house had neither water or electricity and he had carried out temporary repairs on his home following the first robbery by placing blocks of turf where the windows had been broken.

On the first occasion, Lernihan went with a number of others to the home of Mr McMahon, broke a number of windows and demanded money. Mr McMahon was terrified and handed over three jars containing €4,000 through the broken windows.

The next day Mr McMahon went to the bank and withdrew €3,000. He had inherited a sum of money from a relative in the US and his practice was to withdraw sums and to live off the sum for a period of months.

Four days later, Lernihan and others returned to the home of Mr McMahon. A pipe-like object made to resemble a gun was pushed through the windows, Mr McMahon was told it was a gun and if he left the room he'd be shot.

Those involved carried out a search and located the €3,000. They also came across his bank book and when they saw the figures they told him to withdraw €50,000 and have it ready for their return.

Mr McMahon was terrified, Mr Justice Birmingham said, and he resolved that he could no longer stay in his home. He got on his bike and cycled to a nursing home in Ennis 30 miles away where staff urged him to report the matter to gardaí.

The bachelor has to this day never retuned to his home. “From a situation of living independently he now lives in a nursing home,” Mr Justice Birmingham said.

He had not reported the first incident at the time because he was warned by the robbers not to and there would be consequences if he did, the judge said.

A garda investigation followed, Lernihan was arrested and detained and during the course of his detention he admitted his involvement in both robberies and that he had used €1,000 from the share of the proceeds to buy a Volkswagon Passat.

Mr Justice Birmingham said the admissions that were made were of considerable value and without those admissions it's unlikely the case would have ever gone to trial and the admissions were followed up by an early plea.

He noted that the single individual most culpable has not been made amenable to the courts because he exercised his right to silence.

Mr Justice Birmingham said the task facing the judge was a particularly difficult one. There were a number of factors that weighed heavily in his favour – no previous convictions, a positive probation report, his involvement was at the lower end of the scale, he wasn't the principal actor in either event, he had paid compensation, was 19 at the time of the offence, had a good work record and had a child from a stable long term relationship.

It was often the most difficult task for a judge to sentence a first time offender who committed serious offences, Mr Justice Birmingham said.

However, Lernihan was given a chance. “It might be said that he ought not to have been given the chance to the extent he was but he had taken the chance he was given and the information available to the court today is that the progress that was evident” at sentencing had been maintained.

He said the Court of Appeal was of the view that incarceration now, which would be for a relatively short period of time, might not serve the best interests of society. “It might serve to jeopordise the progress that has been made”.

Mr Justice Birmingham said the court would suspend 24 months of the sentence leaving 12 months but the court ordered he undertake 240 hours community service in lieu of the 12 months sentence.

He was required to enter into his own bond of €100 to keep the peace and be of good behaviour for the suspended period of three years from today's date.

When asked if he undertook to be so bound, Lernihan said: “Yeah”.