Convicted Tipperary killer and son appeal sentence for assault and burglary

Eoin Reynolds

Reporter:

Eoin Reynolds

Convicted Tipperary killer and son appeal sentence for assault and burglary

A convicted killer and his son have appealed their sentences for assaulting a father and son with a hammer while demanding payment of a €50 debt.

Robert Devine (44) and his son Lee Kelly (21), both of Brook Crescent, Clonmel, Co Tipperary, are serving sentences of 12 and seven years respectively having pleaded guilty to burglary and assault on December 17, 2017 at the home of PJ and Brian O'Reilly.

In 2010, Devine received a 10-year sentence for manslaughter having pleaded guilty to killing 21-year-old Joseph Cummins in Waterford in November 2007. Kelly played football for his county and was headhunted for the Irish boxing team.

When the father and son were sentenced for the burglary and assault charges, Garda Jennifer O'Brien told the court that Brian O'Reilly had bought €50 worth of Xanax tablets from Robert Devine but did not pay. Devine had been looking for the money for about two months when he phoned Brian O'Reilly and told him: "I am going to chop you up."

At 3am the following morning, Brian O'Reilly awoke and saw Lee Kelly and Robert Devine in his hallway. He locked himself in a bathroom, but was assaulted through the door with what he said was a knife. He suffered a stab wound to the thumb before climbing out the bathroom window.

Meanwhile, his then 66-year-old father PJ O'Reilly awoke and saw Devine armed with a hammer and Kelly with a golf club. Mr O'Reilly punched Devine in the face but as he bent down over Devine, Kelly struck him on the side of the head.

In the struggle, Mr O'Reilly was struck repeatedly and stabbed in the leg. Devine struck him on the head with the hammer while Lee Kelly kicked him. He heard Devine shouting at Kelly: "finish him, finish him," but Kelly, the court heard, then pulled his father off Mr O'Reilly.

The victim said he believed he would have been killed if it weren't for Kelly's intervention.

Devine had 35 previous convictions. Kelly had previous convictions also, all at district court level.

Judge Patrick Meghan sentenced Devine to 12 years for burglary and four years for each of two counts of assault. Judge Meghan ordered the sentences to run consecutively to make a total of 20 years, but he suspended the final eight. Kelly received 17 years in total with the final 10 suspended.

At the three-judge Court of Appealon Monday, Vincent Heneghan SC for the Director of Public Prosecutions accepted that Judge Meghan should not have imposed consecutive sentences. But, he said, the director stands over the effective sentences of 12 and seven years.

Ronan Munro SC for Devine asked the judges to consider that a prison governor's report stated that since 2017 his client had used his time constructively, engaged in addiction counselling and attended the education unit. He said the principal of the prison school "speaks highly of Robert" and the governor noted that his "conduct and demeanour are exemplary, he gets on with prisoners and prison staff and is always respectful, polite and well-behaved".

Mr Munro added: "That seems like a different person to the one we saw on the night, but it does show an evidential basis for rehabilitation."

He said it would be in the public interest to release Devine with a programme to engage with probation services and addiction counselling.

Kathleen Leader SC for Kelly said her client was 18 at the time of the offences and was led by his father, an authority figure who did not have his interests at heart.

He protected Mr O'Reilly, she said, and cooperated with gardaí afterwards. He had shown remorse and pleaded guilty, and Ms Leader suggested that the court suspend part of his sentence.

She added: "Everyone has agreed that my client is a good person led astray, who would behave differently with the right influences." Those influences were now there, she said, in the form of his grandparents.

President of the Court of Appeal Mr Justice George Birmingham, sitting with Ms Justice Isobel Kennedy and Mr Justice Patrick McCarthy, reserved judgement.