A man whose conviction for murdering a defenceless grandfather in his own home was quashed and substituted with a lesser offence has appealed against the severity of his seven-year jail term - which has already been served - because of its impact on his job opportunities.
Court of Appeal President Mr Justice George Birmingham remarked that the notion an employer might look at a sentence rather than at a conviction was "quite unreal".
The victim, Thomas 'Toddy' Dooley, suffered eight blows to his head, which shattered his skull, disfigured his face and left fragments of bone lodged in his brain. Two blows to his torso fractured three of his ribs, while his attackers also tried to set his body on fire after he died.
James Davy along with Mathew Cummins were initially convicted in 2016 of the murder of Mr Dooley (64) at his Co Offaly home, but their convictions were overturned in July 2021, when the Court of Appeal found there was no evidence that the two were involved in a joint enterprise with Sean Davy to murder Mr Dooley.
The court found instead that they were guilty of a "reprehensible" attempt to cover up what had happened by burning the body and disposing of the weapon, with the three judges substituting their murder convictions with convictions for impeding the apprehension of Sean Davy, the murderer.
James Davy (32), of Thornhill Meadows, Celbridge, Co Kildare and Cummins (29), of Churchview Heights, Edenderry, Co Offaly admitted they were in the room when Mr Dooley was murdered on February 12th 2014.
Cummins admitted that he was responsible for the burn marks that were found on Mr Dooley's legs and the armchair in which he was sitting. He had tried to set fire to the body to destroy evidence.
Davy had been re-sentenced to nine years in jail with the final two years suspended by Mr Justice Michael White for his attempt to dispose of the baseball bat after the murder but the sentence was marked as served.
James Davy was released from custody in September 2021 having served his full prison term. He had served six years and nine months' imprisonment by the time he applied for bail in August 2021 and was released in September.
Sean Davy (28) of Clonmullen Drive, Edenderry, has failed in a bid to have his murder conviction overturned and is serving a life sentence.
The trial heard that Mr Dooley was used to having young visitors to his home at Sr Senan Court in Edenderry, Co Offaly, at irregular hours and sat and drank with the intruders before Sean Davy struck Mr Dooley eight times over the head with a baseball bat. Mr Dooley was described during the trial as a "defenceless" elderly man who had done nothing to provoke the attack.
The State had argued that all three men were equally guilty and were involved in a "joint enterprise" to murder Mr Dooley.
At the Court of Appeal, Padraic Dwyer SC, for Davy, said his client was appealing the severity of his sentence even though it had been already served.
Mr Dwyer said that Davy had lost "a number" of job opportunities due to the length of the sentence.
Mr Justice George Birmingham said that the notion that an employer might look at a sentence rather than at a conviction was "quite unreal".
Mr Dwyer said the length of the sentence imposed could have an impression on employers and added that his client had entered an early guilty plea.
Mr Justice Birmingham said that Davy had "no hurry" in getting his appeal on and that he was a "master of his own timetable" when the sentence was quashed, and he was released on the time he had already served.
Mr Dwyer said the length of the sentence had an impact on his client who had "striven to get employment" since his release.
Counsel said that an early plea had been entered in Davy's case regarding the attempted disposal of the bat and that "in principle, the sentence was excessive" as it did not adequately take into account mitigating factors and personal circumstances.
Patrick Treacy SC, for the State, said the DPP's attitude towards the appeal was that it was a "moot" exercise.
Mr Justice John Edwards said a citizen "has a right to due course of law and for it to be proportionate. While it might be moot, he [Davy] has a right to feel vindicated by due process".
Mr Justice Edwards said that the re-sentencing judge made no reference to Davy's remorse, his mental health difficulties, his addiction nor the accused's progress in prison which Davy was "entitled to have taken into account" when being re-sentenced.
"But none of these were even mentioned," said Mr Justice Edwards.
Mr Treacy said that the "very first thing Mr Justice Michael White did was to free him on bail".
Mr Justice Edwards said a person is "entitled to have that censure correctly calibrated". "Surely he is entitled to have a sentence recorded that is proportionate to the offence," added Mr Justice Edwards.
"The trial judge said the headline sentence was set at around ten years, but Mr Davy's point is that he is entitled to mitigation but only got 10% which is simply too low. The offending is egregious but there's no reason not to afford the mitigation a normal person is entitled to. Is he not entitled to an adjustment to reflect the record?" said Mr Justice Edwards.
Mr Treacy said there had been a five-year delay in the bail application because Davy had not pursued his appeal in time and that Mr Justice White had released Davy on "the first day" of the bail application before freeing him the following month.
"We say there has been no error. The judge said he was to mark the seriousness of the offending without extending the appellant's stay in custody. He took the view that it was egregious," said Mr Treacy.
Mr Justice Birmingham said the court would reserve its judgment in the appeal.
