A Dublin student has lost his appeal against a two-year sentence for violent disorder arising from an incident outside Club Anabel at the Burlington Hotel in Dublin during which another student, Mr Brian Murphy, was kicked and beaten to death.
The Court of Criminal Appeal yesterday unanimously dismissed on all grounds Seán Mackey's claim that the sentence reflected an error in principle by the sentencing judge.
Lawyers for Mackey (23), South Park, Foxrock, who has been in prison since March 15th, had argued that there was a disparity between his sentence and that of one of his co-accused, Desmond Ryan. It was also submitted that there had been a failure to have regard to the principle of parity between co-offenders. The trial judge erred in law and in principle in taking into account matters which he should not have and in failing to consider other matters.
Ms Justice McGuinness, giving the judgment of the appeal court, said there was evidence during the trial which would sufficiently support the differentiation made by the trial judge between the conduct of Mackey and Ryan.
The appeal court was of the view that the considerations outlined by the sentencing judge, Judge Michael White, in the Circuit Criminal Court adequately justified the disparity in the sentences. Mackey's complaint concerning this disparity, objectively viewed, could not be reasonably entertained. The court believed the trial judge did not err against the principle of parity in imposing the sentences. Ms Justice McGuinness, with Mr Justice Butler and Mr Justice Abbott, said that it seemed that Judge White correctly set out the principles and policies which governed the imposing of a proportionate sentence on the offenders who were before the court.
In Mackey's case, he had carried out his task of analysing and weighing the aggravating and mitigating factors with great care and had reached "a just and fair balance" in imposing sentence. In the court's opinion, he did not err in principle in the sentence and would not interfere with it.
Mackey was sentenced to two years in March when he was convicted of violent disorder. The jury failed to reach a decision on a charge of manslaughter and the DPP indicated later that he would not be proceeding with a retrial on that count.
The charges arose from events outside the Burlington Hotel, Sussex Road, Dublin, early on August 31st, 2000, following the closing of Club Anabel. Young people had gathered around the hotel entrance, waiting for taxis or other forms of transport home or to other forms of entertainment.
Ms Justice McGuinness said it was clear from the evidence that many of those present had consumed a considerable amount of alcohol.
A dispute broke out and Mr Murphy was subjected to a sustained attack by a number of other young men. After an unsuccessful attempt at resuscitation, he was pronounced dead in hospital. Mr Anthony Sammon SC, for Mackey, referred in his submissions to the assaults on Mr Murphy. At the trial, Judge White had identified Ryan's assault as consisting of two punches to Mr Murphy's head at a time when he was being kicked on the ground and was getting up. It was an unprovoked and serious assault.
The assault by Mackey was identified as a kick to the back. While it was not life-threatening, it was a serious assault.
Given that the cause of Mr Murphy's death was identified as resulting from injuries to the head, Ryan's assault may well have been the more serious of the two, Mr Sammon submitted.
It had been conceded that Mackey was struck by Mr Murphy and that Mackey struck back at him. Since the prosecution had conceded that Mackey was not guilty of any offence until others had joined the assault, Judge White should not have taken this preliminary period into account, Mr Sammon had argued.
It was clear Mackey's contribution to the joint assault on Mr Murphy was the kick delivered to the body. There was clear evidence that before that kick, he had stood back from the fray.
Counsel for the DPP argued that the trial judge had taken into account all mitigating factors on Mackey's behalf and in the circumstances, it was not excessive.
Ms Justice McGuinness said the DPP's counsel was correct in that it was open to the trial judge, Judge White, to take into account all of Mackey's participation, despite the fact that it was accepted by the prosecution that he had not committed an offence before the involvement of others.
In sentencing Ryan, the trial judge differentiated his case from Mackey's in that Ryan did not contribute to the earlier escalation of the incident. In addition, Ryan had given immediate assistance to Mr Murphy after the incident.
Judge White also pointed out that Ryan did not put Mr Murphy's character and disposition at issue in the trial.