ANALYSIS:The way all of an 18-month sentence was suspended has caused some surprise
IT IS unusual, but not unknown, for a judge to reduce a sentence after it has been imposed, according to legal experts.
However, the manner in which Judge Seán Ó Donnabháin suspended the whole of an 18-month sentence yesterday, having previously indicated he intended Dean Foley to serve six months of it, has caused some surprise.
The judge had seemed adamant on Thursday that the seriousness of the injuries merited a custodial sentence, despite Foley’s remorse and guilty plea.
Prof Tom O’Malley of NUI Galway, a barrister and sentencing expert, told The Irish Times one of the principles of sentencing policy that can be taken into account is that members of the Garda Síochána and the Prison Service are known to have a more difficult time in prison than other prisoners would have.
This was argued by Foley’s barrister yesterday as a reason for reducing the sentence already imposed the previous day.
In reducing the sentence, Judge Ó Donnabháin said that had this issue been raised with him, he would have adjourned sentence and remanded Foley in custody for sentencing.
However, a number of criminal lawyers told The Irish Timesthat this principle is well known, and could have been taken into account by the judge anyway.
There are certain categories of prisoners, including members of the Garda and the Prison Service, for whom it would indeed be known that prison poses particular difficulties.
Prof O’Malley said that a rule exists whereby a sentence can be reduced by a judge after he has imposed it, provided this takes place within the same court session.
However, what normally occurs is that a judge indicates he is thinking of imposing a specific custodial sentence and adjourning his decision in order to impress the seriousness of the offence on the offender and on observers, and then suspending the sentence, according to legal experts.
A further consideration in sentencing a garda is that a member of the force convicted of a criminal offence is automatically dismissed, which is not necessarily the case with regard to other employments.
"A judge would see it as a huge punishment that he lost his job and will never get it back," a senior counsel practising in the area told The Irish Times.
“The collateral damage from a criminal conviction is always a difficult issue,” Prof O’Malley said.
“If a person has already lost a lot as a result of the conviction, that is another factor you could put into the equation.
“Obviously a person who loses a job and a pension and his or her good name is in a different position from someone who is unemployed,” he said.