‘Sentencing was dealt with in a procedurally confused manner’

Brendan Grehan, prosecuting, said that there was a question mark over a trial court’s jurisdiction to grant bail pending appeal.

He said that the effect of Section 31 of Criminal Procedure Act 2010 was to give a person an automatic right of appeal and to repeal section 31 of the Courts of Justice Act, 1934.

He said that bail was granted to O’Brien on a contingency basis which might not come to pass and that an intention to appeal is not an appeal in itself. Bail was unenforceable if there was no appeal in place.

Mr Justice Paul Carney responded: “I am prepared absolutely to accept that this sentencing was dealt with in a procedurally confused manner.

“I was fully aware of the gravity of this case and I set that out in the opening words of the sentence. An issue raised by the defence in relation to the state of health of the accused man.

“He’s on constant oxygen which he carries around with him and he is under nine consultants for various serious disorders and diseases which he suffers. That issued raised, I had to deal with it.

“It is part of our jurisprudence from the Court of Criminal Appeal and the Supreme Court that the sentencing judge has not to only sentence in terms of the offence, but in also in relation to that particular offender…

“Having designed the sentence, I was concerned as to whether I might be giving too much weight to the health situation and was anxious for an immediate involvement in the case of other judges…

“The sentence was designed to ensure that nobody would be able to say the accused walked but of course, people were able to say that. The practice over many decades is where an appeal is certified it attracts bail. It was that practice I was averting to in fixing bail and had in mind that it would be short term.

“I accept that to follow that precedent was inappropriate and something I shouldn’t have done. The procedure I adopted was not appropriate. It was insensitive.

“I have absolutely no doubt or hesitation or difficulty in saying that — I set aside the certification which I gave and accordingly, the bail falls.”