The court set aside a condition of a partially suspended sentence under which Kevin Molloy could not resume debt collection for seven years.
Mr Justice Peter Charleton said the seven-year period was an error in principle, and he varied Molloy’s sentence so the condition applies for 30 months.
If such form of debt collection was regulated in Ireland, it might be expected Molloy “would not work again, perhaps ever, but certainly for a significant period”, the judge remarked in the court’s judgment this week.
The judgment outlined the correct approach to sentencing for harassment offences and for offences akin to harassment and has set out guidance concerning classification of such offences and the sentencing bands appropriate to their seriousness.
Molloy, a native of Donegal aged in his fifties with a last known address at Bunclody in Wexford but said to be living in Cavan at the time of his conviction in May 2020, had set up his Ár Cairde Debt Recovery, based in Celbridge, Co Kildare, in 2005.
He secured a further Supreme Court appeal after losing an appeal to the Court of Appeal over an effective 18-month jail sentence, and the seven year condition, imposed by the Circuit Criminal Court after he pleaded guilty to intimidating two innocent parties, a woman and her father, by making a threat to kidnap and organising the posting of defamatory flyers at showjumping events around the country.
The harassment arose after Molloy was employed to recover a debt he understood to be due by another man, referred to as IC. In seeking to locate IC, Molloy discovered the woman, AB, was IC’s partner and harassed her and her father, JB, over a period in 2015.
Mr Justice Charleton said the “criminal methodology” employed by Molloy included threatening phone calls to JB, which menacingly indicated Molloy knew where he lived and was watching him, where Molloy said “the situation could get very ugly if not dealt with within 48 hours”.
Molloy also told JB, as regards IC, “they were going to bring him for a drive and kidnap him and sort him out”. In relation to AB, who had an interest in equestrian sport, Molloy distributed posters of her and IC near an equestrian event “which heedlessly claimed involvement with IC in a manner that was likely to extend to his alleged scams”.
AB also received texts indicating she was being watched, including “disturbing” communications in the middle of the night.
The judge noted Molloy had several previous convictions including one for unlawful possession of firearms and ammunition. Others included for theft, deception and burglary.
The judge said principles of proportionality and balance must be applied to sentencing disposal overall.
The trial judge had not erred in principle in considering that this case, which involved a “dreadful” experience for the victims, to be in the margins between the upper range of the median sentencing band and the lower reaches of the worst category of offending. There was no error in considering a four year sentence was appropriate which, having applied mitigating factors, the trial judge reduced to 30 months, with 12 months suspended for seven years on conditions.
The accused is necessarily burdened with the aggravation of a “dreadful criminal record”, he said.
The conditions of suspending a sentence are in the nature of a “pact” subject to review.
In this case, a suspension condition restricting for seven years the right to earn what would be a lawful livelihood if carried out in accordance with good conduct involved an error in principle.
Suspensions are used daily by the courts to bring offenders to good sense but “unbalancing” a sentence where the suspended tier greatly exceeds the operative time served would need special justification which was “lacking in this case”.
Imposing the condition to refrain from debt collection is part of the punishment aimed at bringing home to the offender the “grave consideration” of further menaces or harassment in the future.
Continuing that for a time beyond the suspended period would be lawful only where there is a balance in the approach to include any time spent in custody before sentence.
The sentence should be varied so the condition will continue for the entire of the suspended part of the sentence [12 months] and 18 months beyond that, he concluded.