The Court of Criminal Appeal has granted an appeal by a Dublin man against a two-year jail sentence for killing a donkey by driving an iron bar through its eye and skull.
Suspending the sentence for five years on Allen Carmichael (22), an apprentice electrician of Malahide, Co Dublin, the court warned it would be immediately reimposed if he reoffended. Mr Justice Hardiman said that on the evidence, the risk of reoffending was virtually non-existent. While the offence was "horrific", Carmichael's remorse was genuine and he had successfully engaged in rehabilitative programmes.
The judge also noted the donkey's owner, Mr Gilbert Kirker, had hoped the incident would not blight the young man's life. Carmichael was sentenced in July 1999 for killing Salt, a female donkey, at Malahide on May 30th, 1998. The trial judge, Judge Kieran O'Connor, had described the offence as "a brutal, savage and senseless assault on a dumb animal brought about by a combination of drugs and drink".
Salt was bought for £30 in 1976 and was jointly owned by Mr Kirker of Malahide and the Donkey Sanctuary at Mallow, Co Cork. Salt was a tourist attraction in Malahide and popular with local children.
She was found lying with a fence bar sticking out of her skull i were notified of the killing of the animal some hours earlier by after two youths who had been out drinking with Carmichael told gardai about the killing.
The three youths had tried to ride the donkey. One of of them said he saw Carmichael hit the animal with a "stick" and run after her and hit her several times as she lay on the ground.
At Malahide Garda station, Carmichael admitted what he had done. He said he saw Salt fall, twitching and out of breath, so he hit her 10 times with an iron bar. He said the donkey was in pain so he stabbed the bar through her head.
Delivering the court's judgment granting Carmichael's appeal yesterday, Mr Justice Hardi man said the offence had caused outrage in the community which led to cowardly and unfortunate threats and shows of violence, not just to Carmichael, but to his blameless family.
A substantial sentence for such an offence would not be wrong in principle, he said. However, the principles of sentencing required the court to take into account the circumstances of both the offence and the particular offender.
Carmichael had no previous convictions, was of very good character and from a respectable family. Before the offence, he had never come to the attention of gardai. He had followed a course of education and training. He had immediately confessed and had undertaken a demanding course of rehabilitative treatment.
Urine analysis reports demonstrated he had abandoned any form of substance abuse.
The purpose of sentence was to punish, deter and, if possible, to rehabilitate. An enormous punitive sanction had descended on Carmichael, he had suffered acutely and his remorse went to the point of amounting to illness.
Carmichael was well on his way to becoming a qualified tradesman and the court believed a custodial sentence would blight his life and serve no rehabilitative or social purpose.
The probation officer's unusually strong recommendation was against such a sentence. The re port said Carmichael was totally devastated, had genuine remorse and had turned his life around.
Mr Justice Hardiman said the court also appreciated the approach of Mr Kirker for having the charity and impartiality to urge a non-custodial sentence.
In the court's view, for a custodial sentence to be imposed, the trial judge would have had to give express reasons for doing so.
Judge O'Connor had said he had no choice but to impose such a sentence but to do so in the absence of any stated negativing of the mitigating factors amounted to an error, Mr Justice Hardiman said.
