A pensioner who shot his nephew in the arm as he tried to run away during a row over land has been jailed for 18 months.
Anthony Mulhern, 69, shot his nephew Gary Mulhern after the two men rowed at the entrance to a field in Donegal Town.
Mulhern Snr, of Ardlenagh, Donegal Town, appeared before Donegal Circuit Court having pleaded guilty to discharging a firearm under the Firearms Act and also assault causing harm.
Judge John Aylmer said the victim was lucky to have escaped with just a pellet in his arm.
Mulhern Snr claimed he tried to enter his field on August 27th, 2018 which was rented by Gary Mulhern’s father Gerry.
But when he did so he was stopped by Gary who he claimed struck him with a large stick.
Mulhern Snr then struck Gary in the face with an open hand before leaving the scene saying he was going to call Gardai.
Gary Mulhern told him to get them as it was Mulhern Snr who had assaulted him first by pushing him.
However, Anthony Mulhern returned to the scene armed with a double-barrelled shotgun.
Gary, who is in his 30s, asked the accused if he was going to shoot him “over the head of land.”
Mulhern Snr initially shot above Gary’s head but when he fled he released another shot in his direction which struck him in the left forearm.
He had to have pellet shots removed from under his skin later in hospital.
Gardai arrived and found a shotgun sitting against a wall and questioned the accused.
Mulhern Snr said he had fired two shots but they were above his nephew’s head and that he was acting in self-defence.
He was arrested later and taken to Ballyshannon Garda Station where he was questioned under Section 30 of the Offences Against The State Act.
During interview he admitted firing the gun “to scare” Gary Mulhern but changed his statement from claiming that he forced above the victim’s head to firing the gun “in his direction.”
Barrister for Anthony Mulhern Mr Peter Nolan instructed by solicitor Rory O’Brien, said there had been a long running dispute over a site of 55 acres of land at the heart of the incident.
He told the court that his client had already paid his nephew €40,000 as part of a civil action arising out of the assault and another €15,000 for his nephew to walk away from the lands he rented to Gerry Mulhern.
Mr Nolan asked his client if he realised how dangerous it was in discharging the gun.
Mulhern said he did and he offered his nephew an apology for “my stupidity and not waiting for the Gardai.”
Mr Nolan said his client was almost 70, a law-abiding citizen all his life and a father of four grown-up children who had all done well in in life.
He started off in life as an electrician with the ESB but then became a mechanic and spent his life in this profession.
The court was told the victim was not in court and had chosen not to put in a victim impact statement.
In mitigation, Mr Nolan said this was a family matter, that there was a low risk of reoffending and that Mulhern had now taken responsibility for the matter and had also settled the civil side of the case.
Passing sentence Judge Aylmer said both offences were at the upper end of the scale for such offences and deemed the appropriate sentences before mitigation was one of six years in prison for the reckless discharge of a firearm and four years for the assault.
He noted two shots were fired from a distance of 15 to 20 yards away and noted it was inevitable that the victim felt in fear for his life as he fled.
Judge Aylmer added that when Mulhern gave evidence at his sentencing hearing he appeared “somewhat glib” in the manner in which he gave evidence saying he would not have satisfied the court that he had developed any greater sense of remorse than what he had given the Probation services.
However, the Judge also said he recognised his early guilty plea, that he had no previous convictions and that this arose out of a land dispute in which he had paid €15,000 for his brother and nephew to vacate the land and also paid €40,000 in compensation to his nephew in a civil case for his injuries.
Taking into account his health issues, that he had a good social history and that he presents as being a low risk of reoffending, he reduced the sentences to four years on the first count and two years and eight months on the second count to run concurrently.
He said the question then arose if the court could suspend all or some of that sentence but he deemed it too serious to suspend the entirety of the sentence.
He did suspend the final two and a half years of the reckless discharge of a firearm sentence and the final 14 months of the assault charge sentence meaning Mulhern was jailed for 18 months.
The court also ordered that the shotgun used in the incident be destroyed.