Too lenient or excessively punitive? Controversy over Judge Martin Nolan’s sentencing

“People tend to imagine sentencing is more lenient than it actually is.” That finding, based on international research concerning public perception of sentences, is set out in a report commissioned by judges here who are drafting sentencing guidelines.

Judge Martin Nolan might agree. The Circuit Court judge is no stranger to controversy over some of his sentencing decisions, with some accusing him of being too lenient to some offenders and excessively punitive to others.

A social media storm recently erupted after he gave a teenager a suspended three-year sentence over his role in an incident where a woman was tied up, assaulted and scalded with boiling water, which was poured over her hands and arms by another man, whom the judge labelled the “prime mover” in the assault, and whom he jailed for four years and three months. Social media users have criticised the judge over opting to fine offenders in some cases, including for violent assault, as a condition of suspending sentence.

Several prosecution and defence lawyers dealing with the judge on a regular basis in Dublin Circuit Criminal Court take a more nuanced view. Nolan emerges as a popular and respected judge and, while not endorsing all of his decisions, several lawyers described much of the criticism of him as ill-informed, betraying a lack of understanding of the facts of the particular case, the law, sentencing principles, sentencing guidelines applicable to some offences, and the nature of a judge’s role.

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[ Teen avoids jail for his role in boiling water attack on woman ]

The controversy highlights wider issues, including the huge pressures on Circuit Court lists and the long-identified absence of a sentencing database here, a problem that continues to delay the Judicial Council’s preparation of sentencing guidelines.

“Sentencing is an act of justice, not vengeance,” according to senior counsel Tony McGillicuddy. “That is now being critically misunderstood by sectors of the public.”

Stressing he would not comment on any individual case, McGillicuddy said: “An act of justice means a judge has to look at both sides of the facts and come to a decision that will not necessarily satisfy either the accused or the victim but which is the just and proper result for society.”

“There are sentencing guidelines and parameters and our system requires they have to be operated independently by judges. The aim is to ensure judges are not subject to populist forces.”

“A lot of what I would not even call commentary has lost sight of that,” the barrister believes.

“Lawyers, perhaps over the years, have not done enough to explain and distil sentencing principles for the public.”

The anecdotal evidence from lawyers – and judicial sources – is that Nolan is not often appealed and that any such appeals are seldom successful

“Many accused people are unpopular but they have rights and it is part of a judge’s role to address those rights as well as the rights of society,” said McGillicuddy. “When a judge is considering a sentence, they look at punishment; deterrence, general and personal to the accused; and the potential for rehabilitation. In some cases, they will decide the correct balance requires jail, in other cases, some involving young people who have no previous convictions and who played a lesser role, showed remorse, willingness to change, they will decide on a suspended sentence.”

“Judges are human, they do make mistakes, but Judge Nolan is regarded by the Bar in general as very hard-working and fair; there are no favours. He hears the evidence, makes up his mind and gives clear and understandable reasons for the sentence. The reasons are well understood. If a party has difficulty with them, they can appeal.”

Nolan deals with some 40 sentences a week, out of which perhaps one or two of those would be appealed by an accused and perhaps one, or fewer, by the Director of Public Prosecutions on grounds of leniency, McGillicuddy estimates. Because of the volume of work most Circuit Court judges are required to get through, most of their sentencing decisions are delivered verbally on the day.

There is no available data to establish how often Nolan’s decisions have been appealed to the Court of Appeal, or the success rates of such appeals. The anecdotal evidence from lawyers – and judicial sources – is that Nolan is not often appealed and that any such appeals are seldom successful.

One barrister who has represented clients before Nolan for several years, including clients convicted of possession of child abuse images, said none of Nolan’s sentences concerning those clients have been appealed by the DPP on grounds of leniency.

“If Martin Nolan stopped working tomorrow, the system would grind to a halt. He gets through a huge amount of work. He’s very fair, and he gets it right. His record speaks for itself; he is not regularly appealed.”

A former garda, Nolan served 10 years in the force before opting for a different career. He was called to the Bar in 1989 and worked in a mixed practice including criminal, civil and family law before being appointed a judge in 2004. His busy list in the DCCC ranges from fraud and tax offences involving wealthier members of society, to theft and drugs offences involving the poorest. The mix includes offences of violent assaults and possession of child abuse images, and a more recent phenomenon involves young people engaging in money laundering for criminal gangs.

The latest controversy over his sentencing decisions arose from an assault by a number of men on a woman and her partner in Dublin more than two years ago. The woman was hit with sticks and had boiling water poured over her hand and arms by Paul Clarke, described by Nolan as the “prime mover” of the attack.

Clarke (29), with an address at Clonard Road, Crumlin, Dublin, was jailed for three years and three months after admitting assault causing harm to the woman at the Maltings, Watling Street, Dublin 8, in November 2021. A second count of assault causing harm to the woman’s partner was taken into consideration.

A social media storm centred on Nolan’s imposition of a suspended three-year sentence on a 19-year-old co-accused, Josh Conlon, with an address at Meath Place, Thomas Street, Dublin, who had pleaded guilty to assault causing harm to the woman.

Nolan said it would be unjust to imprison Conlon as he was not the prime mover of the assault. While Conlon had helped in the assault, he probably did not expect that Clarke would scald using boiling water, the judge said. He imposed a three-year sentence but suspended it on condition of Conlon being of good behaviour and being supervised by the probation service for a year.

Many social media posts critical of the suspension failed to acknowledge Conlon had just turned 18 at the time, was not the prime mover, did not pour boiling water over the woman, entered an early plea of guilty, expressed remorse and had no previous convictions, all factors a sentencing judge would take into account.

Another sentence that attracted criticism was Nolan’s conditional suspension of the entirety of a 21-month sentence imposed last November on a man caught with close to 100 files of child abuse material. Paul O’Dowd (37), of Pearse Brothers Park, Ballyboden, Dublin 16, admitted to gardaí the material was found on his mobile phone and said he previously viewed and downloaded images of child abuse but had never sent such images on to other people. O’Dowd pleaded guilty to knowingly possessing images of child pornography at his home on February 12th, 2021.

The absence of a sentencing database here means it is ‘simply not possible’ to say whether Judge Nolan is an ‘outlier’ among other judges when it comes to sentencing

Nolan was asked by defence counsel to give O’Dowd “a chance” given his admissions and lack of relevant previous convictions. The judge accepted it was “by no means the largest number of images” his court had had to deal with and noted O’Dowd would be registered as a sex offender. He sentenced O’Dowd to 21 months, suspended in full on strict conditions, including that O’Dowd engage with the probation services for 12 months.

A much earlier controversy surrounded Nolan’s imposition in 2012 of a six-year sentence on food importer Paul Begley, of Begley Brothers in Blanchardstown, over evading paying €1.6 million tax on more than 1,000 tonnes of garlic by describing it as fruit.

Nolan said it gave him “no joy at all to jail a decent man” but Begley had engaged in a “huge tax evasion scheme”. The sentence was later reduced on appeal to two years.

The Begley sentencing has contributed to a perception in some quarters that Nolan is “tough” on white collar crime but he came in for some criticism over what some perceived as unduly lenient sentences, ranging from two to three-and-a-half years, imposed by him in 2016 on two former Anglo Irish Bank executives – Willie McAteer and John Bowe – and former Irish Life & Permanent CEO Denis Casey – in 2016 for conspiracy to defraud.

An earlier decision by Nolan to place McAteer, Anglo’s former chief risk and finance officer, and another former Anglo executive, Patrick Whelan, the bank’s former head of lending in Ireland, on community service, following their convictions in 2014 of illegal lending to a group of investors known as the Maple 10, was also criticised. The men could have faced up to five years in prison but Nolan ruled state financial regulators had “led them into error and illegality”.

Several high-profile sentencing decisions by the judge have been welcomed, including a three-and-a-half year sentence imposed by him last July on a garda who tortured and terrorised a woman ill with cancer. The garda was sentenced to three years and three months in prison.

Paul Moody, who was stationed at Irishtown Garda station in Dublin but is no longer a member of the force, pleaded guilty to a charge of coercive control of the woman. Nineteen other charges, including assault, theft, criminal damage and a threat to kill the woman, were taken into account. The 42-year-old garda beat, kicked, punched and choked the woman over a two-and-a-half-year period. He also sent her over 31,000 threatening, abusive, degrading and demeaning texts and phone communications, told her he hoped she would “die in pain” and threatened to kill her.

Among a large number of sentences imposed by Nolan last week, he imposed a total six-and-a-half-year prison term on a man who admitted involvement on separate dates in the theft and attempted theft of valuable watches, one worth €47,000, from a number of individuals, including an American tourist in his 80s, while socialising in Dublin city centre. Some of the thefts involved assaults on the victims. Nolan placed the headline sentence at 10 years but imposed the six-and-a-half-years after taking into account factors including the man’s guilty plea.

Dublin Rape Crisis Centre chief executive Noeline Blackwell is aware of criticism of Judge Nolan’s sentences in some cases, including cases involving assaults on women, but says the organisation tries not to comment on individual cases which it has not sat through in court. A qualified solicitor, Blackwell is conscious that media reports of court hearings can only reflect some of the evidence the judge hears.

The absence of a sentencing database here means it is “simply not possible” to say whether Judge Nolan is an “outlier” among other judges when it comes to sentencing, she said.

A data collection system to ensure access to reliable, comprehensive and up to date sentencing data is recommended

The Judicial Council Act 2019 provides for the introduction of a sentencing database and sentencing guidelines but the council’s Sentencing Guidelines & Information Committee (Sgic) has said it is not yet in a position to issue guidelines because of the lack of sentencing data, Blackwell said.

A sentencing database, the rather unfortunately named Irish Sentencing Information System (Isis), started collecting data from judges some years ago but its work was terminated by the financial recession, she noted.

Some judges have continued to send in data but there is a noticeable absence of data from courts outside Dublin, she said. A proper database would be “very valuable” in enabling assessments of whether judges are unduly penalising some offenders or are being unduly lenient.

This week, the Judicial Council will officially launch a 178 report prepared for the SGIC by Irish and international criminal research experts concerning how the dearth of data issue might be addressed. The report stresses that “good guidelines need good data” and notes the SGIC, in the context of preparing sentencing guidelines, cannot draw on any existing source of reliable and comprehensive data on current sentencing practice.

That means the SGIC faces the “unavoidable” challenge of devising a system for the systematic collection and analysis of data for the immediate purpose of developing guidelines and presenting information on current sentencing practice.

The SGIC, the report recommends, should “openly recognise” that current data are profoundly limited and inadequate for its tasks and that this can only be remedied by a “systematic, concerted and properly resourced” effort. A data collection system to ensure access to reliable, comprehensive and up-to-date sentencing data is recommended.

Recent international research concerning public attitudes in other countries to sentencing, the report earlier noted, suggested that the public’s sense of leniency in sentencing for criminal offences is linked to misperceptions and incorrect knowledge or lack of knowledge. The “most grave and least typical” crimes, the research found, tend to figure prominently when people are asked whether they believe sentencing should be more punitive.

*Some of the cases referenced in this piece may be subject to appeal