Trial judge 'may have felt hands tied'
Legal reaction to sentencing by Mr Justice Paul Carney which saw a 72-year-old sex offender walk free from court on Monday has been mixed.
Patrick O’Brien from Bray, Co Wicklow, was sentenced to 12 years with nine suspended for raping and sexually assaulting his daughter, Fiona Doyle, over a nine-year period, but was released on continuing bail pending an appeal.
In passing sentence, Mr Justice Carney noted that in another judgment, the Kennedy case in 2008, the Court of Criminal Appeal suspended a moderate sentence imposed on the basis of the health of the accused.
He said that in that judgment he was “horrified” to find the Director of Public Prosecutions, “behind my back, saying it’s a matter of indifference” whether the accused served a prison sentence or not.
He said he believed he was taking a moderate position by imposing a sentence of 12 years for the rape charges, along with concurrent sentences of three years for the indecent assault.
Barrister Paul Anthony McDermott said Mr Justice Carney may have felt the Kennedy case “somehow tied his hands”.
He said the sentence showed the judge felt the law was “uncertain” when “dealing with elderly, very sick defendants who nonetheless have committed very serious crimes”.
Mr McDermott, however, said it was “very unusual” to be granted bail “simply because there is a possibility you might appeal the length of the sentence.
“Obviously bail only makes sense if you think the Court of Criminal Appeal is going to say he doesn’t have to spend any time in jail at all.”
Mr McDermott said sentencing guidelines, however, were not necessarily the answer.
“I think most Irish judges would prefer to be given discretion,” he said. “A huge variety of people commit crimes. It’s very difficult to say this should always be the sentence.”
Legal director with the Rape Crisis Network Caroline Counihan (BL) said she “struggled to find a rationale” for the sentence.
Describing the granting of bail pending appeal as “extremely unusual”, she said: “It’s rare for a judge to give any indication that a sentence he is giving may not be the right one.”
She called for a permanently constituted Court of Criminal Appeal to help the consistency of judgments, as well as sentencing guidelines.
One senior legal source said the large volume of serious crimes dealt with by Mr Justice Carney, involving “the most controversial and difficult sentences”, explained why “there would be occasions where he comes into conflict with the Court of Criminal Appeal”.
Last night the Courts Service confirmed that no appeal had yet been lodged. Parties have 21 days in which to do so.
In a statement, the Department of Justice said that while it would be “inappropriate” for the Minister for Justice to comment on an individual case, if the DPP considered the sentence “unduly lenient” she could apply to the Court of Criminal Appeal to review it.
Fianna Fáil justice spokesman Niall Collins called for a sentencing council to promote greater consistency, saying this had worked well in the UK.