“He clearly made a mistake, but to go out like this is a bit grim.”
This was the view of one experienced criminal barrister on Judge Tom O’Donnell, who retired on Wednesday, a week after delivering a sentence in Limerick Circuit Criminal Court that sparked intense controversy.
The decision to fully suspend the three-year sentence of soldier Cathal Crotty (22), of Parkroe Heights, Ardnacrusha, Co Clare, for his vicious assault on Natasha O’Brien (24), caused national outrage and was debated and criticised in the Dáil with the victim watching from the public gallery and receiving the applause of the assembled TDs on Tuesday.
The May 2022 attack happened after O’Brien and a friend asked Crotty, who they did not know and who had been drinking, to stop shouting homophobic abuse at people on O’Connell Street, Limerick.
O’Brien suffered a broken nose and concussion and, as she was losing consciousness, thought Crotty, who was still hitting her, was going to kill her. Hours later, on Snapchat, Crotty boasted about hitting O’Brien: “Two to put her down, two to put her out.”
When questioned afterwards by the gardaí the soldier at first tried to argue that O’Brien had initiated the violence but admitted the unprovoked assault after being shown CCTV footage. His guilty plea was a factor cited by O’Donnell in delivering the suspended sentence.
Before the judge’s decision O’Brien, in her victim impact statement, said: “I am here to seek justice, not just for myself, but to protect others from the violence and malice I experienced.”
Afterwards she was strongly critical of the judge’s decision and told the Sunday Independent she hoped O’Donnell “walks away from his career with a sense of utter disgrace and shame”.
O’Donnell, who retired this week upon reaching the age of 70, is a third-generation lawyer whose family’s legal practice dates back to 1890. He qualified as a solicitor in 1976 and had an extensive criminal defence practice in Limerick before joining the firm Holmes O’Malley Sexton, in 1991.
He was appointed a District Court judge in 1998 and a Circuit Court judge in 2011. In 2012 he was appointed to the Interim Judicial Council – the precursor of the Judicial Council, which promotes judicial excellence. A ceremony to mark the end of his career, scheduled for earlier this week, was cancelled because of the sentencing controversy.
“He deserves to be criticised, but it is an awful way to go after so many years,” said the criminal law barrister, who is not based in Limerick.
“When a politician makes a mistake, they can come out and say: ‘I made a mistake’, but he’s trapped - he can’t do that.”
In the barrister’s view, Crotty “should have been locked up, 100 per cent, and I think that view would be shared by the majority of the Bar.
“If you were defending him, you would tell him to bring his toothbrush,” said the barrister.
The judge, she believed, may have focused on Crotty’s guilty plea, his age and the fact that, unlike so many who appear in the criminal courts, he had a job. She suggested of the judge: “compassion got the better of him”.
Another senior criminal law barrister, also not based in Limerick, said he believed the decision not to jail Crotty was “very surprising”.
“I think it was a very bad decision. I think it was a poor decision,” the barrister said.
However, he did not agree with the view expressed by some that a guilty plea would be of little value in cases where the evidence against an accused is strong.
“Even when you have a strong case, things can go wrong during a trial and they do go wrong during trials,” he said.
In making sentencing decisions judges look at the maximum penalty allowed for the offence and then at the facts of the specific offence they are considering, such as: was a weapon used, was there premeditation, was someone hit while on the ground. This leads to what is called a “headline sentence”. They then look at issues that might justify mitigation of that headline sentence .
“You sentence not only for the offence,” the barrister said. “You also sentence the person who has committed the offence.”
The judge considers whether a guilty plea was entered, the existence of remorse, previous good character, or whether the person is trying to address an addiction problem. Then, having decided the sentence they intend to impose, a judge “steps back” and looks “at the overarching principal of proportionality”.
Judges are obliged to consider the effect of the crime on the victim.
“They might say, this [guilty] person, there are good things about them, but what they did on the night has had a terrible effect on the victim, and a custodial sentence is required. [They might decide] I must deter people from doing this.”
The objectives to be served in sentencing are punishment, deterrence and potential rehabilitation, the barrister said. He was surprised, in the Limerick case, that the judge had not sought a probation report, to learn more about Crotty.
The judge may have decided that, because he was on the cusp of retiring, ordering a report would have meant the sentencing decision would be made by another judge, the barrister said. He also said that the judge may not have adequately explained the importance of the guilty plea to O’Brien.
“It certainly didn’t have the required effect,” said the barrister.
He felt that judges – and the legal profession in general – could do better when it comes to explaining the importance of a guilty plea and could be more sensitive to the vulnerability of victims “even on a sentencing date”.
Overall, however, he said, it should be remembered that sentencing decisions are an act of justice, not an act of retribution or vengeance.
“I think that has been lost sight of this week,” said the barrister.
Lawyers with experience of dealing with O’Donnell, including Crotty’s solicitor, praised his work as a judge and criticised some of the negative commentary about him, especially online.
Barrister Erin O’Hagan said O’Donnell was “an absolute pleasure to appear before, and an exceptional gentleman” whose “very long-standing career should not be dismissed”. She praised the role O’Donnell played as a judge in tackling organised crime in Limerick in the early 2000s.
“When crime in Limerick was through the roof and people were afraid to leave their houses, Judge O’Donnell kept the streets of Limerick safe for a very long time, and that’s not to be forgotten,” she said.
She described as “horrendous and very inaccurate” some comments made about the judge.
“I have great sympathy for him because he was such an exceptional judge, and he deserves to have a better send-off,” she said.
Junior counsel Yvonne Quinn said O’Donnell was “a decent and kind man” and had “a tireless commitment on the bench”.
Limerick criminal defence solicitor Sarah Ryan, who acted for Crotty, said some of the rhetoric used about the judge had the “capacity to put his safety at risk”.
She said commentators had labelled “an inherently decent, polite and conscientious man to be many things that he has not shown himself to be”.
On the day O’Donnell sentenced Crotty, he gave a fully suspended two-year sentence to a 19-year-old man who was part of a gang that robbed and beat up a homeless man. He sentenced a 37-year-old man to four years in jail for the violent street robbery of a woman and a 58-year-old man to 7½ years, with the last 18 months suspended, for having cocaine for sale or supply.
All three men got credit for guilty pleas and the two men who were jailed (but not the 19-year-old) had previous convictions.
It is expected that the Director of Public Prosecutions will appeal the Crotty decision to the Court of Appeal.
Asked to comment on the sentencing decision, the Association of Judges of Ireland said it would not be appropriate for it to comment on a case.
“In addition, given the possibility of an appeal in this case, it would be particularly inappropriate for the Association of Judges to make any comment on it,” the association said.
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