Robber who terrorised pensioner twice, causing him to cycle 30 miles for help, may avoid jail
A Clare man who robbed a pensioner twice with others, causing the 68-year-old to cycle 30 miles through the night in terror to check himself into a nursing home, may avoid jail for a second time pending his assessment for community service.
Joseph Lernihan (22), with an address at Finnuremore Park, Mullagh, Co Clare, had pleaded guilty to two counts of robbery at the home of the then 68-year-old Michael McMahon in his home on two occasions in February 2012
On March 3 2014, Judge Carroll Moran at Ennis Circuit Criminal Court gave Lernihan an entirely suspended three-year sentence, ordered him to pay €3,780 compensation and ordered that a Volkswagen Passat he purchased with the proceeds of his crime be forfeited.
The Director of Public Prosecution appealed Lernihan's sentence on grounds that it was unduly lenient and while the Court of Appeal found the trial judge had erred, the court put the matter back one week to assess his suitability for community service.
Giving background to the case Mr Justice George Birmingham 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 euro. 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. This time €3,000 was taken.
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 returned 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 Volkswagen 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 tasks facing the judges 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 jeopardise 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 is prepared to consider directing that Mr Lernihan undertake community service.
The matter was put back until next Thursday for the purpose of assessing his suitability for community service.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, thanked counsel for their assistance in “a difficult and troubling case”.