Prisoner fails in appeal over assault on fellow inmate who was former garda

Prisoner attacked former garda in Midlands Prison Portlaoise with a mug stuffed in a sock

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Midlands Prison PortlaisePicture:  Finbarr O'Rourke

A prisoner who claimed his fellow inmate, an ex-garda, allegedly requested an assault so as to “orchestrate” his early release from prison on safety concerns has lost a sentence appeal.

Gerard Brown (34), with an address at the Midlands Prison, was found guilty by a jury at Portlaoise Circuit Criminal Court of assaulting Mr Stephen Cooper, his fellow inmate, in the Midlands Prison on May 20, 2014.

He was sentenced to three years imprisonment made consecutive to a term already being served.

Brown had an appeal against sentence dismissed on Thursday with the Court of Appeal holding that his sentence could not be regarded as unduly harsh.

Giving judgment, Mr Justice Alan Mahon said Mr Cooper was an ex-Garda who was serving a sentence for fraud, perverting the course of justice and for an offence under section 15 of the Misuse of Drugs Act. As an ex-garda, Mr Cooper was afforded special protection in prison.

On the day in question, as Mr Cooper was being escorted to the prison gym, he was assaulted by Brown when forcefully struck on the head two or three times with a mug concealed in a sock.

Brown admitted that he attacked Mr Cooper in the manner described. He claimed Mr Cooper had consented to being assaulted, having requested Brown to attack him “for the purpose of facilitating or orchestrating” Mr Cooper's early release from prison on the basis that his safety inside the prison was at risk .

Brown alleged that Mr Cooper instructed him “not to hold back” and “just make sure there is blood”. He alleged that Mr Cooper agreed in return to provide him with certain documentation and information as well as €1,000 in cash.

Mr Cooper gave evidence that he had not consented to being assaulted at all and insisted that he had no agreement with Brown.

Counsel for Brown, Conor Devally SC, submitted that the trial judge erred in treating the fact that the offence was committed in prison as an aggravating factor.

Mr Devally said the sentencing judge wrongly enhanced the sentence by calculating it in a manner that amounted to double counting. If it had been a “mass prison riot like something in Brazil,” Mr Devally said, then the situation would be different.

Mr Justice Mahon said the fact the offence was committed in prison should not have been considered an aggravating factor. However it was unclear whether the Circuit Court judge did approach sentencing on that basis .

Furthermore, Mr Justice Mahon said the sentence could not be regarded as unduly harsh having regard to the seriousness of the offence and the totality principle.

Mr Justice Mahon, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, dismissed the appeal.