Not the first time rulings have caused controversy

Mr Justice Paul Carney may have been in confident form when he wrote the following in his contribution to a collection of essays titled Criminal Justice in Ireland back in 2002: “People have been murdering and raping each other from time immemorial and, accordingly, the law in relation to these crimes is well settled.

They are the easiest and most unchallenging cases to try.”

Maybe that is the case for the man who has presided over more rape and murder cases than any of his peers, but his 10 years in the Central Criminal Court before he made those comments and the decade he has been there since have proved they are certainly not the easiest cases to sentence.

The uproar over his handling of rapist Patrick O’Brien this week is not the first time Judge Carney’s courtroom decisions have caused controversy.

The devastation of Fiona Doyle who said she felt she had been let down twice — first by her rapist father and now by the justice system — echoed the cries of Lavinia Kerwick back in 1992 when Judge Carney gave her attacker a susp-ended sentence and she said she felt raped once more.

Throughout the 1990s, he spoke on numerous occasions of being constrained in the sentences he could hand down in rape and sexual assault cases because of his need to be mindful of the higher courts.

Those early tensions with the Court of Criminal Appeal have continued and influenced his decision in the Patrick O’Brien case. The appeal court ruled in 2008 that a nine-month sentence he imposed on 86-year-old James Kennedy for indecent assault was too severe even though Judge Carney said in court at the time its shortness would likely upset the victims.

The appeal court didn’t regard it as short at all given the defendant’s age and poor health and suspended it in its entirety. Because of O’Brien’s age and ill-health, the judge didn’t wait to be told he’d gone too hard on this defendant — if indeed this would have been the appeal court’s view.

Judge Carney’s feelings about the Court of Criminal Appeal have been well-aired. In 2009, he complained while sentencing a repeat sex offe-nder that he felt compelled to impose a more lenient term than was due because he predicted a tougher sentence would be overturned.

Judge Carney described defendant David Hegarty as “particularly predatory and opportunistic” and warned: “This raises inferences in my mind that he will do so again at the first possible opportunity and that the appropriate sentence is one of life imprisonment.”

However, he said he couldn’t impose life because the Court of Criminal Appeal had overturned his previous attempt to give a similar sanction to another offender in a case known as the DPP v GK where a 16-year sentence, with the last three suspended, was substituted for the judge’s life term.

Yet at times the appeal court has found him too lenient. In 2007 he gave a three-year suspended sentence to Clare rapist Adam Keane, much to the distress of his victim, Mary Shannon, and he only activated the sentence after Ms Shannon revealed to media that her attacker had made threatening gestures to her on the train on the way home from court.

The Court of Criminal Appeal later ruled that three years in prison had been too little to begin with and increased the sentence to 10 years.

The previous year Judge Carney attracted criticism when he sentenced Wayne O’Donoghue to four years in jail for the manslaughter of his 11-year-old neighbour, Robert Holohan, and later criticised the schoolboy’s mother’s use of her victim impact statement to try to raise unanswered questions about the prosecution of her child’s killer.

The DPP appealed the sentence on the grounds of leniency but on that occasion, despite plenty of public disquiet, the Court of Criminal Appeal upheld the judge’s decision, ruling four years was sufficient.

However, perhaps his most dramatic overruling by the appeal court followed the Nora Wall case. In 1999, Judge Carney imposed a life sentence on the former nun for repeated rape of a schoolgirl in her care but she had only served four days when the Court of Criminal Appeal quashed the conviction because a key witness had been shown to have lied previously and was never supposed to have been called to give testimony.

Judge Carney’s words outside the courthouse have also grabbed headlines on occasions. At a publicly reported law seminar in 2008 he made comments about the proliferation of stabbings while at the time he was presiding over the trial of the Dumbrell brothers for the stabbing death of another man.

The brothers were convicted but their lawyers argued at the Court of Criminal Appeal in 2010 that the judge’s comments had prejudiced the trial and the jury should have been discharged.

The appeal court agreed, quashed the convictions, ordered a retrial and finally in 2011, five years after the crime, the brothers were once again convicted and received mandatory life sentences.

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