Man who took part in tiger kidnapping of family with 10-week-old baby has sentence increased on appeal by prosecutors

McCarthy was sentenced to nine years imprisonment by Judge Patricia Ryan on May 19, 2017.

His sentence was found to be “unduly lenient” by the Court of Appeal today following an appeal brought by the Director of Public Prosecutions and McCarthy was given a new sentence of 15 years.

Giving judgment in the three-judge court, Mr Justice George Birmingham said “thankfully”, there have been few similar cases in Ireland and, as such, few earlier sentences available as comparators. However, he said a sentence in the range of 22 years to life would have to be considered, absent any mitigation.

There was evidence that McCarthy had been acting under duress in relation to a drug debt and that there was a credible threat against his life unless he participated in the kidnapping.

Giving background, Mr Justice Birmingham said the injured parties were in their home on the night in question when the doorbell rang. When Mr Nawn went to answer the door he was met by a man with a scarf covering his face, carrying a pizza box in one hand and a short-barrelled gun in the other.

This person threw the pizza box at Mr Nawn and shouted "get on the f**king floor or I will kill you".

Mr Nawn informed the man that there was a baby in the house and he lay down in the hallway.

A second man entered the house and put a gun to Mr Nawn's head.

The first man tied Mr Nawn's hands behind his back with cable ties and covered his eyes and mouth with duct tape.

Ms Nawn had her baby in her arms when she saw the raider entering the sitting room. He was wearing gloves and was carrying a firearm. The raiders tied her hands and legs with duct tape and used duct tape to position the baby on her chest.

A raider questioned her and threatened on a number of occasions to shoot her if she lied to him.

The raiders made it clear they had significant information about the workings of the post office, including the names of staff and methods of operation. They also made it clear they knew where Ms Nawn's family lived and had details in relation to them, including the make and model of the vehicle they drove. She was told there was another raider making his way to the house who would have no problem raping her.

Mr Nawn was handed his work clothes and told to get dressed. He was then put in the boot of his own car where he was bound with cable ties and gagged with duct tape.

All three were brought in the same car to a farmyard at Saucerstown in Co. Dublin.

Mr Nawn was told that if he didn't cooperate, those involved would "blow his wife's head and the baby's head off" and that they would have to try for a new baby.

At one stage Mr Nawn needed to urinate. His shorts were opened but his hands were not untied from behind his back. As a result he urinated on his shoes which was “indicative of the indignity to which he was subjected,” Mr Justice Birmingham said.

Throughout the night he could hear the raiders clicking their guns. No food or water was provided, including to the 10-week-old baby.

The following morning, Mr Nawn was placed in his car and given various instructions. It was apparent he was under surveillance.

At the post office, he informed his manager what was occurring. He asked the manager to refrain from setting off alarms or his wife and baby would be harmed.

Mrs Nawn was also ordered to speak to the manager to tell him to comply. She told him she had a gun to her head and the baby had not eaten since the previous evening.

She was struck over the head three times with a gun by one of the raiders.

A very large delivery of cash was made to the post office as it was the day of the month when child benefit is paid. The alarm was not raised and the cash was taken by Mr Nawn.

Once he had left the post office, Mr Nawn received instructions on where the money should be dropped off. He was ordered to break up the phone he had been using and to throw the pieces into the river.

Mrs Nawn was driven to a derelict cottage at Damastown, Co Meath, where she was loosely tied to a rusty bed with cable ties. After some time she managed to escape.

Their baby at the time was bottle-fed, taking six or seven ounces of baby formula every four hours. The baby had not been fed at all during the 16-hour ordeal nor were her nappy and clothing changed. The baby was found to be highly dehydrated and immediately consumed five or six four-ounce bottles of baby formula in hospital.

Some €661,125 was taken. The crime was meticulously planned as evidenced by the fact that the criminals installed a camera in the post office some time in advance of the incident to help them monitor activity there. None of the money has ever been recovered.

McCarthy was nominated as a suspect as his fingerprints were found on a piece of torn pizza box in a bag with Mrs Nawn's Tesco club card. The bag was found in a suspect vehicle which had been dowsed with petrol and set on fire, but the fire had been extinguished by a quick-thinking passer-by.

He had 125 previous convictions for threats to kill, burglary, possession of knives, assaults, theft and fraud offences, endangerment, public order and road traffic offences.

Counsel for the DPP, Vincent Heneghan SC, submitted that the sentencing judge erred in fixing the headline sentence at 15 years before mitigation.

The DPP accepted that there were mitigating factors in McCarthy's favour but before those could be applied by way of a reduction, the starting point “should have been significantly higher than 15 years”.

Mr Heneghan said it was a horrendous ordeal.

He referred to the well-known aggravated burglary case from Tipperary known as 'DPP v Dean Byrne' (the first of seven raiders named on that indictment) and said the facts of that case “were bad but the facts of this case are a whole lot worse”.

In the Tipperary aggravated burglary case, the ordeal lasted for a much shorter period of time and there was a degree of incompetence on the part of the raiders. The Court of Appeal deemed 18 years as the appropriate starting point in that case and “this case has to attract a headline sentence greater than that,” Mr Heneghan submitted.

Mr Justice Birmingham said the court was in "absolutely no doubt" that a sentence in the range of 22 years to life would have to be considered, absent any mitigation.

Thankfully, he said, there have been few similar crimes and few similar sentences available as comparators. Reference was made to aggravated burglary cases but, Mr Justice Birmingham said, as serious as those were, there were dimensions to this type of offence that were "even graver".

As serious as entering a dwelling when armed is, an additional dimension is added when family members are taken from their homes and split up as a means of applying extra pressure to the family member that is sought to coerce.

In this case, there was the additional factor that one of those family members was a 10-week-old baby.

McCarthy was entitled to mitigation in that he had been a heroin addict, his life was under threat because of a drug debt, there was a degree of duress present and he was not benefitting financially from his involvement. He had pleaded guilty and there were indications at sentencing that his time in custody was being spent constructively.

Giving full credit for the mitigating factors, Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the appropriate sentence for McCarthy would have been 15 years.