A man who admitted raping and abusing his daughter for 10 years walked free from court yesterday after a judge granted him continuing bail to appeal his prison sentence.
Mr Justice Paul Carney suspended the last nine years of a 12-year sentence imposed on Patrick O’Brien (72) after describing his crimes as one of the most serious cases of serial rape of a daughter.
He certified the case as fit for appeal with respect to issues arising, and remanded O’Brien on continuing bail pending that appeal. He ordered that the appeal hearing be expedited and granted continuing legal aid to O’Brien.
Patrick O’Brien, of Old Court Avenue, Bray, Co Wicklow, pleaded guilty at the Central Criminal Court to 16 charges of the rape and indecent assault of Fiona Doyle at Mackintosh Park, Pottery Road, Dún Laoghaire from 1973 to 1982.
Before passing sentence, Mr Justice Carney heard evidence from the director of nursing services with the Irish Prison Service about the level of care available to someone of O’Brien’s age and with his health issues.
Frances Nangle O’Connor told Monika Leech, prosecuting, that the Prison Service had managed patients with similar conditions. She said that the level of care available to him would be as good as that in the general community.
The court had heard O’Brien had a heart condition and required oxygen eight hours a night. Ms O’Connor said this could be provided.
Mr Justice Carney asked Ms Leech whether the DPP wanted a prison sentence to be served and if she would stand over any sentence imposed.
Ms Leech told the court that her only instructions in this regard were that the DPP viewed the case as falling at the lower level of the upper end of the scale but that the sentence was a matter for the court.
After hearing these submissions, Mr Justice Carney said that he had only come to his view in this case in the last five minutes. He said it was a most difficult case to judge.
He said: “If I impose a serious custodial sentence and suspend it, it will go out in sound-bites, as these things do, that in one of the most serious cases of serial rape of a daughter, the man walked. That is all the community will be told.
“On the other side if I impose a heavy sentence unsuspended I will be branded as a trial judge who substituted one injustice for another. I am trying to strike a balance.”
Mr Justice Carney noted that in another judgment, the Kennedy case, 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 that the DPP, “behind my back, saying it’s a matter of indifference” whether that accused served a prison sentence or not. He said he believed he was taking a very moderate position by imposing a sentence of 12 years for the rape charges, along with concurrent sentences of three years for the indecent assault.
He said the primary mitigating factor for the accused was his serious medical condition. He said that other factors were his guilty pleas, expression of remorse, good behaviour, history of employment and the length of time since the offences. Based on these factors he suspended the final nine years.
O’Brien initially denied the allegations and told gardaí she was making them because “I was very hard on her because of the way she was dressing”.
He later admitted abusing her at least once a week for 10 years and said it “became normal”. He said he knew it was wrong but kept doing it. He told gardaí: “I’m sorry for what happened, especially her, because she was good to us.”