The Court of Criminal Appeal is expected to give judgment within a week on the appeal by Seán Mackey against the two-year sentence imposed on him for violent disorder outside a Dublin nightclub when student Brian Murphy sustained fatal injuries in a row.
At the conclusion of the hearing yesterday of the appeal of Mackey (23), South Park, Foxrock, Dublin, Ms Justice McGuinness said the appeal court would endeavour, if possible, to give judgment in a week or so. She heard the appeal with Mr Justice Butler and Mr Justice Abbott.
The Court of Criminal Appeal was packed for the hearing. Those present included a number of relatives and friends of those involved in the trial, including Brian Murphy's parents.
Counsel for Mackey argued the two-year sentence was excessive and pointed to a disparity between it and a nine-month sentence imposed on another man for violent disorder arising out the same incident. Counsel for the DPP argued the trial judge was correct and that the two-year term was not out of proportion.
Mackey was sentenced to two years last March 15th when he was convicted of violent disorder in relation to the incident outside Anabel's nightclub, at the Burlington Hotel, Dublin, in August 2000. The jury failed to reach a decision on a charge of manslaughter against him and the DPP later indicated that he would not be proceeding with a retrial on that count.
Mackey has been in jail since.
Also last March, Dermot Laide (22), Castleblayney, Co Monaghan, was jailed for four years for the killing of Brian Murphy. Laide also received a concurrent two-year term for violent disorder.
Desmond Ryan (23), Dalkey, Dublin, was given a nine-month sentence for violent disorder and was acquitted by the jury of a manslaughter charge. Mr Andrew Frame (22), Donnybrook, Dublin, was acquitted of violent disorder.
The trial judge had earlier directed that the jury acquit Mr Frame on a manslaughter charge.
All four had denied unlawfully killing Brian Murphy and violent disorder. Mackey's appeal had been set for last July but it was adjourned on the application of his counsel who complained about a newspaper article shortly before.
Mr Anthony Sammon SC for Mackey said he was not proceeding with a ground of appeal that the trial judge was in error in principle in failing to consider a non-custodial sentence. He said Mackey wished to have the matter put behind him as soon as possible.
He had not sought bail because a person on bail did not have considerable priority in having their appeal heard. If he later lost his appeal in that situation, he could be faced with a custodial sentence in perhaps 18 months.
Mr Sammon said there was a disparity in sentencing between Mackey and Desmond Ryan, who was sentenced to a shorter period on a violent disorder charge.
At the heart of Mackey's trial defence was that he was involved in an unfortunate situation with Brian Murphy in circumstances where he came to intervene between him and Mr Frame.
Referring to evidence relating to the row outside the nightclub, Mr Sammon said the only violence Mackey engaged in had occurred after he had received a blow in an initial altercation with Brian. He had foolishly allowed his passion to overrule his mind at a stage after Brian had been knocked to the ground. He had kicked him when he was on the ground but that was nowhere near the region of is head. Brian died from injuries to his head.
Mackey had given a detailed account to gardaí and gone voluntarily to Donnybrook Garda station. He did have something to be annoyed about. He had been hit by Brian Murphy whereas Ryan had nothing to be annoyed about. Ryan's involvement was "less attractive", Mr Sammon argued.
Opposing the appeal, Mr Edward Comyn SC, for the DPP, said the approach of the trial judge had been one of care and extreme conscientiousness. He had given the greatest care and consideration to the evidence, had applied correct principles in sentencing and addressed himself to the question of proportionality.
There were reasons why there should be a disparity between the sentences imposed on Mackey and Ryan.