A garda has walked free after a judge today revised his sentence and suspended the balance of his 18-month prison term for assaulting a man in Cork city almost three years ago.
Dean Foley was sentenced yesterday day to 18 months in jail with 12 months suspended by Judge Seán Ó Donnabháin for assault causing harm to Stephen Murphy in Cork in September 2009.
Judge Ó Donnabháin told Foley yesterday he was concerned about the violence of the assault that left Mr Murphy unconscious and believed a custodial sentence was appropriate.
He effectively jailed him for six months when he suspended the last 12 months of the 18 month term, but today Foley's barrister, Donal O'Sullivan, applied to have the matter revisited in court.
He said it was an unusual step it was appropriate and lawful given that the application was being made in the same sessions of Cork Circuit Criminal Court as when sentence was first imposed..
Mr O'Sullivan said he had failed to raise the issue at sentencing yesterday that there was a recognised principle that a custodial sentence caused greater hardship to gardaí and prison officers.
It was recognised by the courts that convicted gardaí and prison officers suffer greater hardship in prison because they have to be segregated from other prisoners and end up more isolated.
Prison officers had informed him that Foley, who is from Blarney but was stationed in Bantry, would end up in an isolation wing reserved for jailed gardaí and prison officers at the Midlands prison.
Mr O'Sullivan argued that because he failed to raise the issue in making his plea for mitigation during the sentencing yesterday he would not be able to raise it at the Court of Criminal Appeal.
Judge Ó Donnabháin said that had that issue been raised with him yesterday, he would have adjourned sentence to today and remanded Foley in custody for sentence today. He said he believed that if he did not allow Mr O'Sullivan make that argument regarding the principle of gardaí suffering more in prison, an unfairness would occur in any appeal.
Judge Ó Donnabháin said he was affirming his original order of 18 months but that he was suspending the balance of it, effectively reducing Foley's prison time from six months to a day.
There were emotional scenes in court after Judge Ó Donnabháin made his order with Foley's family flooding from the public gallery to embrace him amid tears.
Yesterday, Foley's mother had collapsed in tears and had to receive medical treatment after Judge Ó Donnabháin imposed the 18-month sentence with 12 months suspended.
During yesterday's sentencing hearing, it emerged Foley had paid substantial compensation to Mr Murphy, who wrote to the court saying he did not wish to see his attacker go to jail.
The incident had been investigated by the Garda Ombudsman Commission and was the first case undertaken by the commission to result in a custodial sentence for a garda.
Foley was under suspension from his job in An Garda Síochána pending the case, and today Mr O'Sullivan confirmed his client will lose his job as a result of his conviction for assault.
