Man found with handgun in rural Kilkenny appeals jail sentence

A man with one previous conviction who was caught by the garda Armed Response Unit with a handgun while wearing disposable gloves received a longer jail term than his co-accused, who had amassed 13 previous convictions, the Court of Appeal has heard.

Chris Kelly of Hawthorn Drive, Hillview, Waterford, pleaded guilty to possession of a firearm on May 20, 2020, at Ballinlaw, Slieverue, Co Kilkenny, when he and two other men were stopped by gardaí. He was sentenced to six years' imprisonment with the last year suspended by Kilkenny Circuit Criminal Court in December 2021.

His co-accused, Kealan Madden, of Andrew Street, Waterford, also pleaded to possession of a firearm at the same date and location but received a five-year sentence with the final 12 months suspended.

Kelly (32) appealed the sentence arguing that he should not have received a year more jail-time than his co-accused.
The court heard that when the vehicle came to a stop gardaí observed a small black object being thrown into a hedge from the rear of the vehicle where Madden was seated, while Kelly was a front-seat passenger.

The sentencing hearing was told that when gardaí approached the vehicle, a dark green sock was located between the legs of Madden containing a tray of ammunition wrapped in plastic. Both men were wearing disposable gloves.

The area was searched and a semi automatic pistol was located. In all 47 rounds of ammunition were recovered. The court heard that a ballistics report said the pistol and ammunition had been modified to allow for live ammunition to be fired.

Judge Orla Crowe was told that Kelly resisted and had to be forcibly removed from the vehicle.

Kelly has one previous conviction for simple possession of drugs .

Madden, however, had 13 previous convictions, including convictions for production of an article during the course of a dispute, criminal damage and public order.

The court heard that Madden told his probation officer that both men were "acting on orders from more serious and violent men".

At the Court of Appeal, Dean Kelly SC, for Kelly, said his client should not be left with a "justified grievance" over the sentence when his co-accused received a lesser jail term.

Mr Kelly said his client's grievance over the perceived disparity was "grounded in reality" and that his client's sole previous conviction compared with the 13 amassed by his co-accused was also relevant.

Mr Justice George Birmingham said that a view could be taken that there had been leniency towards Madden in sentencing but that this did not mean that parity of sentencing should be "achieved at any price".

Ms Justice Isobel Kennedy told Mr Kelly that it did not mean his client's sentence had, therefore, been too severe.

Mr Kelly said his client had given some co-operation in interviews with gardaí before he entered his guilty plea.

Mr Justice Birmingham noted that the gun had been modified for use and that there was no need to do this if it was to be used solely for intimidatory purposes.

Mr Kelly said his client and co-accused said they were acting for a more serious individual.

Ms Justice Kennedy replied that both men were doing so for financial gain and that this had been acknowledged by the trial judge.

"This was not a drug-debt, in this case he would have to be paid," she said.

Dylan Redmond BL, for the State, said that there was no error in principle made by the trial judge "which was borne out by the facts of the case".

Mr Redmond said parity had been considered by the trial judge but the judge was entitled to conclude and sentence as she did.

Mr Redmond said Kelly had "forcibly" resisted the ARU and that the gun had been thrown from the car.

Counsel said that Kelly had been the owner and driver of the car at the time of the incident.

Mr Redmond said a question for the court to decide was whether or not the judge, in sentencing Kelly, had created a disparity so wide that it merited the intervention of the Court of Appeal.

Mr Justice Birmingham said the three-judge court would reserve its judgement in the matter to February 17.