Saturday, January 31, 2009
MR JUSTICE Paul Carney’s annoyance at the Court of Criminal Appeal is understandable. In January 2007 he sentenced Gerard Kelly to life in prison for rape, but the sentence was for more than that crime.
Kelly had been convicted in Coventry of rape in 1987, for which he served eight years. He returned to Ireland in late summer of 1997 and raped a pregnant 17-year-old in Dun Laoghaire as she was walking home on November 2, 1997. He was convicted of that second rape on June 21, 1999 and sentenced to 10 years in jail.
In April 2004 — after less than five years — the Central Criminal Court suspended the remainder of his 10-year sentence. Even allowing for remission, he would not have been due for release until May 2005. Thus, he should still have been in prison on the night of September 17, 2004 when he raped again.
This time the victim was a 24-year-old woman who was walking to a friend’s house. He dragged her to waste ground and raped her.
She pleaded with him, offering him her mobile phone and €70 that she had on her, but he said he wanted her body. Afterwards he gave back the phone and the money and told her several times he was sorry.
In January 2007, he was convicted of that third rape. He pleaded guilty and his probation officer informed the court Kelly wished to return to the prison community because he felt "isolated" in society and was happier in jail.
"I have sympathy with the highly dysfunctional factors in his background but in the present case I would not be protecting the community by imposing anything less than a life sentence," Mr Justice Carney explained. It was "very clear that he could not cope alone in the community", and the judge was doing him and society a favour by imposing a life sentence.
In February 2008 the sentence was appealed to the Court of Criminal Appeal. Since Kelly had pleaded guilty to the offence, Brendan Grehan, SC, argued the judge had erred by imposing the maximum sentence, life in prison, because this provided no mitigation for the guilty plea.
The rape was not of such an exceptional nature to justify the imposition of a life sentence, according to the court, which reduced Kelly’s sentence to 16 years in prison, with the last three years suspended. Moreover, it stipulated there should be a 10-year post-release supervision period.
Mr Justice Carney was reacting to that decision this week when he suggested that David Hegarty deserved a life sentence.
He pleaded guilty to two separate rapes in Cork city centre on October 5 and October 27, 1998. Each of the victims was a 20-year-old student walking home along Patrick Street. He forced each down a laneway before raping them.
On February 4, 2000 Mr Justice Carney sentenced him to 10 years in jail for each rape — the sentences were to run concurrently. In view of Hegarty’s guilty plea, the judge suspended the last 18 months of the two sentences.
Hegarty was released in 2006 and subsequently orally raped a foreign national in the early hours of May 22, 2008. She was waiting for a bus near the city centre bus station when he grabbed her from behind and dragged her into a laneway. He pleaded guilty and was reportedly very drunk at the time of the attack.
The prosecution informed the judge that the DPP considered the crime at the "lower end of the severe category of offending".
"He has committed three rapes," Mr Justice Carney said. "The appropriate sentence is one of life imprisonment." But because of the ruling in the Kelly case, he felt constrained. "I cannot protect the citizens of the State," he complained.
On Monday he sentenced Hegarty to 13 years in jail and directed that he undergo 10 years of post-release supervision. This was essentially the same sentence that the Court of Criminal Appeal had imposed in the case of Gerard Kelly in July.
On Wednesday of this week the judge was back in the news when the Court of Criminal Appeal changed another of his life sentences. This time it was a case of a paedophile rape.
Philip Sullivan was convicted on multiple counts of sexual assault on an eight-year-old boy and sentenced to concurrent sentences of four years in jail in November 1995. While he was in jail, he was sentenced to a further five-years for the earlier rape of a 23 year-old man on February 5, 1994.
In January 2008 Sullivan pleaded guilty to 11 counts of rape and sexual assault of two young boys from April 2004 to April 2006.
"Under normal circumstances these latest offences would have warranted a 12-year sentence reduced to 10 years on mitigation, but his previous convictions have escalated this case into a whole different category," Mr Justice Carney said.
Believing that Sullivan was likely to reoffend, if ever released from jail, he sentenced him to life in prison on each of the rape charges.
In view of the repeated nature of his offences, the Court of Criminal Appeal recognised that Sullivan "represented a continuing danger to the public". But it still ruled that the Mr Justice Carney had erred in principal by imposing a life sentence.
The principle has been long established that a man who pleads guilty to a crime is entitled to some mitigation for saving the State the trouble of having to prove the case. Mr Justice Carney had previously recognised that principle in the Hegarty case when suspending 18 months of his 10-year sentence in 2000.
The Court of Criminal Appeal therefore reduced the sentence to 15 years in jail with the last two years suspended, but Sullivan must undergo counselling and supervision for 10 years after his release. This was essentially the same sentence imposed on Kelly and Hegarty.
AT A lecture on his experiences during the week, Mr Justice Carney seemed to lash out at what he termed political correctness.
He lauded Det Garda James "Lugs" Brannigan who became famous in the 1960s for giving wayward young lads a boot in the arse and clip on the ear rather than arresting them for minor misbehaviour.
Society may well have been all the better for this, but inevitably other gardaí lacked the necessary sense of proportion. We ended up with allegations of the Heavy Gang in the 1970s, and Lugs would probably be prosecuted for such behaviour these days.
The pendulum has swung too far in the other direction. In a way it is a pity MrJustice Carney brought up "Lugs" Brannigan because this detracted from what should be the debate in relation to serious crime. Surely, public safety should take precedence in sentencing and a guilty plea should only be a factor in any subsequent remission.
In the USA a person can be jailed for life after three felony convictions. Mr Justice Carney would seem to have been on solid ground when he concluded that Kelly, Hegarty and Sullivan would be a danger to society if ever again released.
This should be about protecting society, not facilitating rapists or accommodating prosecutors.
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