JUDGMENT:A GARDA avoided a custodial sentence after a judge yesterday revised his sentence and suspended the officer's 18-month prison term for assaulting a man in Cork city while off duty almost two years ago.
Dean Foley (25) from Tradeen, Knocknasuff, Blarney, Co Cork, had been sentenced on Thursday to 18 months in jail with 12 months suspended by Judge Seán Ó Donnabháin for assault causing harm to Stephen Murphy on the Grand Parade in Cork on September 12th 2009.
The judge told Foley on Thursday that he was concerned about the violence of the assault which left Mr Murphy unconscious with broken cheekbones, a broken nose and broken teeth.
“He got an unmerciful beating,” said Judge Ó Donnabháin.
“I appreciate your career is at risk but I do not think I can dispose of it other than by imposing a custodial sentence,” Judge Ó Donnabháin said on Thursday as he sentenced Foley to 18 months in prison but suspended the final 12 months of the term.
However, Foley’s barrister, Donal O’Sullivan later applied on Thursday to Judge Ó Donnabháin to have the matter listed for yesterday as there were matters which he failed to bring to the court’s attention and Judge Ó Donnabháin granted the application.
Yesterday, Mr O’Sullivan told Judge Ó Donnabháin that it was “a somewhat unusual application” but it was entirely appropriate and lawful to make it given that it was being made within the same court sessions of Cork Circuit Criminal Court in which Judge Ó Donnabháin had first imposed sentence.
Prosecution barrister, Dermot Sheehan agreed that it was “lawful and appropriate” for Mr O’Sullivan to make an application to the court, but he questioned what new material could he present to the court in relation to the case.
Mr O’Sullivan said he had failed to raise an important issue at sentencing on Thursday even though he had included it when preparing his plea for mitigation, namely that the courts recognised that a custodial sentence can prove more difficult for some categories of persons.
It was recognised by the courts that some people by virtue of their nationality, age or occupation find prison terms more difficult and among the groups so affected in terms of their occupation were offenders who had worked as gardaí or prison officers, he said.
Mr O’Sullivan said that this was recognised by the Court of Criminal Appeal in 2002 in the case of the DPP vs Woods, a former garda, and while that judgment was delivered ex tempore and no written copy was available, it was recognised and referred to in the legal texts.
A garda in jail would face segregation from other prisoners, he said.
“It is a much more difficult thing. He will have to be isolated. He inevitably will spend a greater amount of time in his cell. He will have to be kept out of the general prison population. It will be a much more difficult sentence for him.
“Going by what I am told by prison officers, he [Foley] will be taken to the Midlands Prison where there is a special section to hold him. He will have to be kept separate from other prisoners. Opportunity to mingle will not be there,” he said.
Mr O’Sullivan argued that because he failed to raise the issue of Foley facing a more difficult time in prison because he had worked as a garda when he made his plea for mitigation during Thursday’s sentencing, he would not be able to raise it at the Court of Criminal Appeal.
Judge Ó Donnabháin asked Mr Sheehan if he felt the DPP would be disadvantaged in any appeal he might make of the sentence if he allowed Mr O’Sullivan make the plea that his client would suffer more in prison and Mr Sheehan said he did not believe it would disadvantage the DPP.
Judge Ó Donnabháin said he accepted that Foley would suffer extra hardship in prison due to his service as a garda and said he would have taken account of that in his sentence if it had been raised with him on Thursday.
“It is likely that had it been argued yesterday, I would have adjourned the case with the accused remanded in custody and sentenced today, ” said Judge Ó Donnabháin, adding that he believed if he did not listen to Mr O’Sullivan’s submission, that Foley would suffer an unfairness in any appeal he would bring.
“We are in a completely different place today to where we were yesterday . . . It is still my view that some element of a custodial sentence was necessary . . . if a point had to be made, then perhaps it has been made,” he said.
Judge Ó Donnabháin said that he was affirming the 18 month suspended that he had imposed on Foley on Thursday, but that he was suspending the balance of it, ie 18 months minus one day, on condition that Foley keep the peace and be of good behaviour for a period of 18 months.
