The Court of Appeal reduces sentence to 12 years.
A MAN convicted over a brutal iron bar attack has had two years taken off his sentence by appeal judges.
In February, the Court of Appeal refused to overturn Michael Mongan’s convictions.
However, Lord Chief Justice Declan Morgan, sitting with Lord Justice Coghlin and Lord Justice Gillen this week decided to reduce his extended 14 year sentence to 12 years.
The background to the case was that Mongan and another male had reason to believe that an individual named Niall Convery had deposited a sum of approximately £10,000 in a shed at the rear of domestic premises at 82 Mayogall Road, Knockloughrim the home of his mother Theresa Convery.
Niall Convery carried out a car and tyre business to the rear of those premises and it seems that the owner of a scrap yard had given the sum of £10,000 to Niall Convery in return for him running the scrapyard business in the absence of the owner.
When Mongan and his cohort arrived at the domestic premises they encountered Theresa Convery, 70 years of age, her son Martin, who was then in his mid-40s and her grandson Philip then aged 16.
Martin was assisting Philip with his forthcoming GCSE maths examination. The applicant was unmasked but his companion was wearing a balaclava and pointing a gun. They demanded the money that was in the shed.
When they were told that the Converys present did not have any keys to the shed and knew nothing about any money the applicant went out to the vehicle in which he had arrived and returned with a large iron bar.
Said the Court of Appeal judges: “For the purpose of compelling Theresa Convery to provide information about the location of the money the applicant then assaulted her with the iron bar.
“When Philip Convery attempted to intervene he also was assaulted in a similar fashion. Martin Convery was also struck by the applicant with the iron bar sustaining bruising to his arms, back and legs.
“These were deliberate, cowardly and brutal assaults visited, in particular, upon two individuals who were vulnerable, respectively, by reason of their age and youth.
Victim impact reports were prepared on Theresa Convery, Martin Convery and Philip Convery.
At the time of the assaults Theresa Convery used a rollator to assist her mobility about the house. Photographs illustrated that she sustained extensive and severe bruising to her hip and left lower legs.
Said the judges: “To use her own words she has been left “a nervous wreck” as a consequence of the assaults.
“Dr Curran confirmed that there had been psychological sequelae, diagnosing a prolonged adjustment disorder of anxiety type, but noted that the resilience of Theresa Convery was “clearly evidenced”.
“Theresa Convery told Dr Curran that, prior to the attack, the doors of the house had been kept open in accordance with the custom of people living in the country. Her house has now been equipped with surveillance cameras and a keypad code is necessary to enter from the outside. She no longer sleeps well and has lost her interest in socialising.
“philip Convery’s condition was deemed to be critical and he was transferred to the Royal Victoria Hospital where he was found to have a fractured skull. More than 60 metal staples were inserted into multiple lacerations on his head. He received 11 days of in-patient care. He was unable to complete his GCSEs. He has difficulty in sleeping and is subject to frequent morbid nightmares. He keeps a hammer under his bed. Philip Convery has never been able to return to his grandmother’s house. Dr Curran diagnosed Philip to be suffering from post-traumatic stress disorder with a marked lowering of mood. Dr Curran noted that he was to undergo trauma counselling which could extend over a period of 12-16 months.”
Mongan was made the subject of a pre-sentence report compiled by a probation officer.
The interviewing officer noted that the applicant disputed much of the information that he had previously provided for a pre-sentence report prepared in March 2013 and that he also challenged information contained in PBNI records.
She considered that the credibility of his account of his lifestyle would have to be viewed with a degree of scepticism.
In dealing with the circumstances of the offence the probation officer recorded that:
“It is of particular concern that Mr Mongan had left the house and returned with the iron bar. This indicates willingness to exacerbate the level of threat to the victims. However, his use of the iron bar to beat the elderly woman, who had already voiced her health problems, is of concern. This lady had not offered any threat to the assailant, but was severely assaulted. Similarly Mr Mongan’s violent attack on the young schoolboy illustrated his disregard for the vulnerability of the victims, both young and older.”
The probation officer referred to the applicant’s criminal record comprising 76 offences since 2006 including theft, burglary, criminal damage, assault on the police, intimidation and 43 convictions for car crime and driving relating offences.
The officer noted that the applicant had been dealt with by a range of disposals, including youth conference orders, probation supervision, statutory supervision and periods of detention/imprisonment none of which appeared to have had any deterrent effect.
She noted that the current offences had occurred five months after he had appeared at Enniskillen Crown Court when he had been made subject to a suspended sentence.
In her view the current offences reflected “… a significant escalation in the nature and gravity of Mr Mongan’s criminal behaviour”. She considered that the applicant’s record indicated a persistent lifestyle of criminality. The probation officer recorded that a Risk Management Panel had been convened with regard to the risk of serious harm at the termination of which the Panel concluded that the defendant posed a significant risk of serious harm and that the current offences represented a “significant escalation” in the nature and gravity of Mr Mongan’s criminal behaviour. The Panel took into account a number of factors including:
(i) The degree of planning and premeditation of the offences and the targeting of the victims,
(ii) The use of weapons to both instil fear and to physically assault the victims.
(iii) Mongan’s departure and return to the house with the iron bar illustrated a willingness to exacerbate the gravity of the offences.
(iv) The vulnerability of the victims in terms of age, gender and health factors.
(v) The unprovoked attack on the elderly lady reflected a disregard for the consequences visited upon the victim.
Counsel for Mongan, Frank O’Donoghue QC told the Court of Appeal that there were two grounds of appeal:
(i) trial judge Philip Babington erred in classifying the offences as a commercial robbery and thus the sentence was wrong in principle.
(ii) Judge Babington erred in assessing the applicant as posing a significant risk of serious harm.
Said the Court of Appeal: “In carefully assessing whether the applicant posed a significant risk of serious harm the learned trial judge took into account the substantial criminal record of the applicant, the nature and extent of the injuries resulting from the physical violence applied by the applicant to the vulnerable victims, the report from Dr O’Kane and the assessment of the Risk Management Meeting, convened by the PBNI, recording the concerns about the credibility of the applicant, his persistent criminal lifestyle and the serious degree of escalation in criminal behaviour evidenced by the current offences. We are of the opinion that, in the circumstances of this particular case, the judge was quite entitled to reach the conclusion that such a risk existed.”
“For the reasons given we have not been persuaded that this sentence was wrong in principle.
“However, we have also given careful consideration as to whether it was manifestly excessive. The learned trial judge did take into account the fact that the applicant’s conviction related to attempted robbery rather than to the substantial offence but, in our view, he was also correct to take into account that it was only the lack of knowledge about the whereabouts of the money on the part of the victims that resulted in the failure to carry out the full offence. He also had regard to the applicant’s youth at the time of the offences.
“On the other hand, as this court has observed on a number of previous occasions, the youth and/or personal circumstances of the offender will not weigh heavily in reduction of penalty where the offences are serious and, in particular, where they involve the infliction of significant personal violence.
“However, after giving the matter very careful consideration we propose to reduce the custodial element from 14 years to 12 years and the period of extended licence from 5 years to 3 years.
“Accordingly, we shall allow the appeal to that extent.”
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