Seems nowadays the garda over here are above the law
A SECOND serving garda faces an assault trial next month.
The case -- which involves the Garda Ombudsman Commission (GOC) -- follows the controversy last week over how off-duty garda Dean Foley (25) received a six-month jail term for a vicious assault only to have the sentence altered within 24 hours.
The Foley case was the first time a serving garda was jailed since the GOC was established four years ago.
The two garda cases are totally unrelated and involve different Munster counties.
The second garda vehemently denies the charge which the Sunday Independent has learned is set to come before the Circuit Criminal Court early next month.
Both legal experts and prosecutors have insisted the revised sentence handed down to Dean Foley in Cork last Friday was entirely lawful.
The Bantry-based garda spent just 24 hours in custody after being handed a six-month prison sentence before Cork Circuit Criminal Court last Thursday for a brutal city-centre assault committed while he was off-duty two years before.
The following day his sentence -- 18 months' imprisonment with 12 months suspended -- was revised by Judge Sean O Donnabhain so that all 18 months were suspended.
The sentence was altered after the defence team revealed they had failed to address the court on a key sentencing principle the previous day -- namely, a prison sentence is much tougher for a garda than for others.
The assault victim -- Stephen Gerard Murphy -- suffered a broken nose, two broken cheekbones, several broken teeth as well as bleeding to the brain.
The attack was triggered on September 12, 2009, when Mr Murphy -- who was inebriated -- was walking home and came across Dean Foley, his brother Travis, and a group of friends in Cork city centre.
Mr Murphy heard comments being passed about his clothing. In turn, he said one of Dean Foley's friends was wearing a brightly coloured T-shirt that was "a bit gay".
Judge O Donnabhain said Mr Murphy's intoxicated condition was such that he was clearly a threat to no one but himself. However, the subsequent assault he suffered was so vicious a passing holidaymaker was afraid to even get out of his taxi.
Mr Murphy was left lying unconscious on a city-centre street, and spent two days in Cork University Hospital with bleeding to the brain. Mr Murphy -- who has since made a full recovery -- was not contactable for comment at his Grenagh home yesterday.
Mr Foley has since sold everything he owns to raise €28,000 in compensation -- and offered an apology on Friday for his actions which he described as "one moment of madness that cost me my whole life".
He has resigned from An Garda Siochana with immediate effect. Had he not resigned, he would have faced dismissal proceedings. He has been under suspension for almost two years.
Mr Murphy insisted he held no grudge against the ex-garda for what happened. He previously said: "I bear no ill will. I was only trying to go home that night. I wasn't looking for any trouble. I still cannot remember much. But I don't particularly want to see a prison sentence."
Mr Foley broke down and sobbed when the judge agreed to suspend the remaining portion of his sentence -- meaning he was immediately released from custody. He had admitted to court that being in custody was "terrifying".
His mother collapsed screaming in court last Thursday when her son received a custodial sentence. She subsequently had to receive medical attention.
Judge O Donnabhain was able to change the sentence on Friday because of two key legal principles.
Firstly, the sentence would only have been confirmed if the current sessions of Cork Circuit Criminal Court had concluded. As the sessions were still ongoing the sentence could be revisited by the judge involved.
Secondly, defence counsel Donal O'Sullivan pointed out that the court had not been addressed on a key sentencing issue as outlined in Prof Thomas O'Malley's book on sentencing principles.
Mr O'Sullivan -- who admitted his belated submission was "somewhat unusual" -- said that prison sentences had a greater impact on certain people in society such as foreign nationals, the elderly and the sick, as well as members of An Garda Siochana and the Prison Service.
"It is a far more difficult sentence for him, a garda, than for anyone else," he explained.
He revealed that, in the Midlands Prison, his client would be kept in a special wing, would be segregated from the rest of the prison population for security reasons and would have to spend most of his time in his cell. He would also be subjected to virtually round-the-clock observation.
Judge O Donnabhain was also told that, if he refused the submission, the defence team could not raise it in any appeal process because it had not been raised on Thursday when the initial sentence was imposed. The judge stressed that, had that matter been argued on Thursday, he would most likely have remanded the garda in custody and not imposed a sentence.
"Considering all the matters now raised and particularly in view of the fact that it appears to be agreed by both parties that were I not to listen to Mr O'Sullivan now he might not be able to advance that argument on appeal -- it could be an unfairness," he said.
"We are in a completely different place today than we were yesterday. If a point had to be made then perhaps it has been made," he added.
Mr Foley of Tradean, Knocknasuff, Blarney, Co Cork, wept as he walked free -- and was immediately embraced by his family and girlfriend as he left Cork Courthouse on Washington Street.
His brother Travis, of the same address, has pleaded guilty to the lesser charge of assaulting Mr Murphy at the same date and location.
He is scheduled to be sentenced before the Circuit Criminal Court on June 27.
