A Waterford man who was caught by the Garda Armed Response Unit with a handgun while wearing disposable gloves has had his five-year jail term reduced by a year to match that of his co-accused.
Chris Kelly (32) received more jail time than his co-accused Kealan Madden, who had amassed 13 previous convictions. Kelly successfully appealed his sentence, arguing that as he had just one previous conviction he had a "justified grievance" and should not have been treated more severely.
Kelly of Hawthorn Drive, Hillview, Waterford, pleaded guilty to possession of a firearm on May 20th, 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.
Madden (34), 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.
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, Madden had a dark green sock between his legs 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.
Previous conviction
Kelly's one previous conviction was for simple possession of cannabis. 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 a previous hearing, Dean Kelly SC, for Chris 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 submitted that 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.
Dylan Redmond BL, for the State, had argued 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.
Appeal
At the Court of Appeal on Friday, Mr Justice George Birmingham quashed the original sentence and re-sentenced Kelly to five years' imprisonment with one year suspended to match Madden's jail term.
"In the course of her sentencing remarks, the trial judge referred to the fact that the appellant was being paid a sum of money for transporting the package, observing, “that distinguishes him from Mr Madden”.
"We are somewhat at a loss to see how it differentiates the appellant from Mr Madden. It seems unlikely that Mr Madden was in the car with ammunition between his legs for the fun of it or was doing it by reason of natural love and affection," said Mr Justice Birmingham.
"We find it difficult to see that there was any basis for treating the appellant more severely than Mr Madden. The case against Mr Madden was probably the stronger of the two; the firearm was thrown from the backseat, where he was the only occupant, and the ammunition was in the sock between his legs.
"The previous record of the appellant was certainly no worse than Mr Madden’s," said the judge.
Mr Justice Birmingham noted that Kelly’s personal circumstances included that he was suffering from Crohn’s Disease, a situation which "if anything, appears more difficult than those of his co-accused".
"Overall, we feel that this was a case where there was little basis for distinguishing between the two men," said Mr Justice Birmingham.
"We have decided to intervene. We have regard to up-to-date information put before the court which certainly suggests that the appellant is using his time in custody productively. We have also had regard to an impressive and moving letter from his father.
"Having considered all relevant matters, we have come to the conclusion that the appropriate way to deal with matters at this stage is to quash the sentence that was imposed on the appellant in the Circuit Court and substitute a sentence of five years' imprisonment, with the final 12 months of the sentence suspended, this being the same sentence as was imposed on his co-accused," said Mr Justice Birmingham.
