Sex Offences Sentences I

Cases

 

The People v W.C.

[1994] 1 ILRM 321 Flood J
1.0 Introduction
The accused in this case pleaded guilty on 15 July 1992 to a charge of rape which is set out at count no. 1 on the bill of indictment No. 25C/92.

On that date Sergeant John Tuohy was called as a witness for the prosecution to outline the material facts of the case. He stated that the mother of the complainant in this case made a complaint of rape to him which he investigated.

The material facts are that the complainant and the accused had been seeing each other as boy and girlfriend for a period of approximately five months. On the night of 31 December 1991, being New Year’s Eve, they both attended a local discotheque to celebrate the arrival of the New Year. They did not, in point of fact, arrange to meet on that night but having met at the discotheque spent the evening dancing together and participating in the festivities. During the course of the evening the accused is believed to have consumed approximately five pints of beer.

At approximately 2 o’clock in the morning of 1 January 1992 the complainant and the accused left the discotheque and walked down the town. They stopped adjacent to a local monument and were, for some time, kissing. They then went down to a local bridge for some privacy but found another couple there. Ultimately they went into a derelict mill adjacent to a local river.

On the complainant’s account of events, the accused removed his jacket and placed it on the ground and they then lay together upon it. The weather conditions that evening were cold and damp. This encounter continued for possibly three-quarters of an hour, or more. In that time the complainant and the accused had a romantic encounter and were consensually involved in a high degree of intimacy. The accused became sexually aroused and sought to have sexual intercourse with the complainant. The complainant did not consent to this course and the accused, thereupon, had sexual intercourse with the complainant in the absence of her consent.

The prosecuting garda has sought to characterise the circumstances of this case as a situation where ‘… things got out of hand and … just went too far.’

It would appear that in the immediate aftermath of these events the accused was neither fully aware, nor appreciated, the wrong he had done. At this time the complainant was distressed, upset, and made the true facts of the situation clear to the accused. The accused now appreciated the seriousness of the situation.

The complainant and the accused appear to have discussed, at this time, the prospect of the complainant becoming pregnant. The accused appears to have accepted at this stage that the act of sexual intercourse had taken place without the consent of the complainant.

The accused accompanied the complainant to near her home. While walking they met a local school teacher who is a neighbour of the complainant. The time was approximately 4.00 a.m. The complainant did not alert the school teacher to the fact of the rape, or to the distress of her circumstances.

When the complainant arrived home she told her mother of the events that had transpired. Later in the day the complainant’s mother contacted the gardaí and the investigation was set in train.

1.1 Statute law
Where an accused person pleads guilty to rape, or is convicted of that offence by a jury in the course of a criminal trial, the maximum sentence that a court may impose is a term of penal servitude for life as provided by s. 48 of the Offences Against the Person Act 1861. The policy of the British Parliament of that time, and also of the Oireachtas today, is to lay down in criminal statutes the maximum sentence that may be imposed by a court in respect of a criminal offence. The role of legislation, subject to some exceptions, has been to provide a power to sentence an accused person, and to set the outer limit of its use. The sentence to be imposed on an accused person in a particular case is solely a matter for a trial judge in the independent and impartial exercise of judicial discretion. To suggest otherwise would be to countenance a constitutionally impermissible invasion of judicial independence and the doctrine of the separation of powers as provided by Articles 6 and 34.1 of the Constitution. In the Supreme Court decision of Costello v. Director of Public Prosecutions [1984] IR 436 ([1984] ILRM 413) where the court granted a declaration that s. 62 of the Courts of Justice Act 1936 was repugnant to the Constitution because a statutory power purporting to permit the prosecuting authorities to send a person forward for trial after a judge of the District Court had ordered, at the conclusion of a preliminary examination, that the accused be discharged, was an unconstitutional interference by the executive in the judicial domain. O’Higgins CJ at p. 454 of the report, delivering the Judgment of the Court, states:

The court is satisfied that in conducting the preliminary examination and in determining these questions the [judge] was exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution. (See Articles 6 and 34 of the Constitution, and State (C.) v. Minister for Justice [1967] IR 106). When, in the exercise of such judicial power, there is a determination of these justiciable issues, that determination cannot be set aside or reversed by any other authority. Such action would constitute an invasion of the judicial domain and an attempt to exercise the judicial power of government otherwise than by the organ of State established for this purpose by the Constitution.

This case is a particular example of the general principle of the constitutionally mandated independence of the judicial arm of government in criminal proceedings. This independence operates at all stages of criminal proceedings, from their initiation by way of summons, or charge, to their conclusion ending in a verdict of not guilty, or alternatively conviction and sentence.

1.2 The constitutional setting
The Supreme Court in Deaton v. Attorney General [1963] IR 170 specifically acknowledged the constitutional independence of a judge in the selection of the punishment to be imposed following conviction. In that case the court declared a statutory provision which purported to enable the Revenue Commissioners to select the penalty to be imposed in a customs case to be unconstitutional. In the course of his judgment Ó Dálaigh CJ stated:

Where the legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the executive’s displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the courts in the assessment of punishment as well as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a constitution which is broadly based on the doctrine of separation of powers — and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one — could have intended to place in the hands of the executive the power to select the punishment to be undergone by citizens.

This approach was approved by the Supreme Court in State (O.) v. O’Brien [1973] IR 50 particularly in the judgment of Walsh J.

The Constitution not only protects the independence of a judge in the selection of a particular sentence but, in addition, places on him a constitutional duty to impose a sentence which is appropriate to the degree of guilt, taking into account all relevant circumstances which may arise in that case. This approach was expressly approved by the Supreme Court in State (Healy) v. Donoghue [1976] IR 325 where Henchy J stated at p. 353 of the report:

… a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence, or, where his guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances.

In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality. By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced. It is not open to a judge in a criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy, or to otherwise pre-determine that issue. In Cox v. Ireland [1992] 2 IR 503 the Supreme Court had to consider the provisions of s. 34 of the Offences Against the State Act 1939, which provided that a person convicted of a scheduled offence under that Act was thereupon disqualified from holding any public office or employment for a specific period. The mandatory imposition of this penalty was held by the court to be a failure ‘… as far as practicable to protect the constitutional rights of the citizen and [was], accordingly, impermissibly wide and indiscriminate.’ (See p. 524 of the report). The court was influenced in its determination by the fact that the mandatory nature of the provision excluded any consideration of the manner of commission of a scheduled offence, or the relevant personal circumstances of the person convicted. At p. 523 of the report Finlay CJ states:

A citizen charged with one of the less serious offences coming within a category scheduled at a time when a Special Criminal Court is in existence, and tried for such offence by such court and convicted, if he happens to be the holder of office or employment funded by the State, has no protection against the mandatory imposition of the forfeiture provisions contained in s. 34. This is so even though he might be in a position to establish, not his innocence of the particular offence charged, but the fact that his motive or intention in committing it, or the circumstances under which it was committed, bore no relation at all to any question of the maintenance of public peace and order or the authority or stability of the State.

In my view this decision illustrates the principle of proportionality in operation. The means employed in that provision were clearly disproportionate to objects to be secured.

1.3 The convicted person
Where a person is convicted of a criminal offence or, as in this case, pleads guilty to such offence that person does not thereby forfeit such legal and constitutional rights as he previously enjoyed. The personal liberty of such person may be restricted by the terms attaching to a suspended sentence, or the making of a community service order under the provisions of s. 3 of the Criminal Justice (Community Service) Act 1983, or the imposition of a sentence of imprisonment, but permissible restrictions on elements of the exercise of constitutional rights do not extinguish those rights. In Murray v. Ireland [1985] IR 532, which was a case where the plaintiffs, who were serving life sentences for the murder of a member of An Garda Síochána in addition to robbery and firearms offences, sought a declaration that the failure of the State to provide facilities for married prisoners to procreate contravened Articles 40. 3 and 41 of the Constitution. Costello J states at p. 542 of the report:

When the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including deprivation of the liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those: (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood), or (b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it another way, do not impose unreasonable demands upon it. This accords with the view expressed by the American Supreme Court in Wolff v. McDonnell (1974) 418 US 539, a case dealing with the rights of prisoners in Nebraska to due process in disciplinary proceedings. In the course of the majority judgment the following observations of principle were made at p. 555:

Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system’ …. But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country ….

This approach was approved by the Supreme Court as reported in [1991] ILRM 465.

1.4 The purpose of imposing a sentence
The general principles as to the proper approach of a trial judge in determining a particular sentence have been canvassed in a number of recent Irish authorities. In People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359 of the report Walsh J stated:

The objects of passing sentence are not merely to deter the particular offender from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case — not only in regard to the particular crime but in regard to the particular criminal.

In People (Attorney General) v. Poyning [1972] IR 402 at p. 408 of the report Walsh J stated:

Not only in regard to each crime but in regard to each criminal the court of trial has the right and duty to decide whether to be lenient or severe. It is for these reasons and with those purposes in view that, before passing sentence, the court of trial hears evidence of the antecedents and character of every convicted person.

In State (Stanbridge) v. Mahon [1979] IR 214 at p. 218 of the report Gannon J stated:

The first consideration in determining sentence is the public interest, which is served not merely by punishing the offender and showing a deterrent to others but also by affording a compelling inducement and an opportunity to the offender to reform. The punishment should be appropriate not only to the offence committed but also to the particular offender.

These statements of principle are particular applications of the principles of justice that subsist in our constitutional law.

In State (Healy) v. Donoghue [1976] IR 325 O’Higgins CJ encapsulated the purpose and objective of a trial judge in imposing a sentence when he stated at pp. 347 and 348 of the report:

In my view [the] Preamble makes it clear that the rights given by the Constitution must be considered with the concepts of prudence, justice and charity which may gradually change or develop as society changes and develops and which fall to be determined from time to time in accordance with prevailing ideas … the concept of justice which is specifically referred to in the Preamble in relation to freedom and the dignity of the individual, appears again in the provisions of Article 34 which deals with the courts. It is justice which is to be administered in the courts and this concept of justice must import not only fairness and fair procedures but also regard to the dignity of the individual.

1.5 The crime of rape
The crime of rape is a serious offence. This view is reflected in the provisions of s. 48 of the Offences Against the Person Act 1861 which state:

Whosoever shall be convicted of the crime of rape shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.

The amending provisions of the Criminal Law (Rape) Act 1981 and the Criminal Law (Rape) (Amendment) Act 1990 have not sought to in any way alter the sentencing provisions relating to this offence. The legislation sets the outer limit of the sentence that may be imposed, and vests in the court of trial the duty and the discretion to impose a particular sentence on an individual offender.

The observations of Hutton LCJ, sitting in the Court of Criminal Appeal in Northern Ireland, in R. v. McDonald [1989] NI 37, a decision which reviewed the approach of the Crown Courts of Northern Ireland to sentencing in cases of rape, are instructive. At p. 49 of the report he states:

The proper administration of justice requires that sentencing should be carried out in accordance with principles which have been established by decisions of the appellate courts. There is sometimes public misunderstanding, particularly in cases of rape and other sexual offences, where a court of trial imposes a sentence, or a Court of Appeal reduces a sentence and it is thought that the court is not taking a sufficiently severe view of a particular offence when, in reality, the court is applying well established principles. This court makes it clear that it regards rape as a serious offence which normally carries a heavy sentence of imprisonment, and where there are aggravating factors the sentence should be very heavy. But sentences have to be imposed in accordance with established principles and having regard to the particular circumstances of each case which can greatly vary.

The decision of the Supreme Court in Director of Public Prosecutions v. Tiernan [1988] IR 250 reviewed the approach of the Irish courts in imposing a sentence for the crime of rape. The facts of that case were horrific. The victim was abducted by three men and subjected to what was described as ‘gang rape’, which included multiple acts of rape, violence, and acts of equal perversion. In addition the appellant in that case had previous convictions for serious crimes of violence and gross indecency. The Supreme Court in that case reduced the sentence imposed from a term of 21 to 17 years penal servitude. The Chief Justice at p. 253 of the report states:

The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself.

The judgment then lists some of the variable factual circumstances which may be present in a particular case and concludes with the general principle of judicial sentencing policy in cases of rape where the Chief Justice states:

Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would be wholly exceptional.

The Chief Justice in his judgment makes it clear that the Irish courts, unlike the position of the English Court of Criminal Appeal, do not adopt a formulaic or tariff approach to sentencing a convicted person when he states:

… having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar) and the particular circumstances of the accused I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.

McCarthy J in his judgment in the same case similarly stated:

I do not subscribe to what is apparently the view in England and New Zealand that there should be any particular minimum standard; there is a maximum — penal servitude for life. The trial judge subject to due consideration of the matters specified by the Chief Justice, and taking into account what further matter may properly appear to be relevant in the particular case, should have a true judicial discretion as to the sentence appropriate in any case.

The Chief Justice suggested that an admission of guilt, the circumstances of an admission of guilt, and a plea of guilty are factors which may properly be taken into account in mitigating the sentence which a court might impose. The nature of a complainant’s prior sexual experience or a suggestion that she exposed herself by imprudence to danger are not factors which can properly be advanced in mitigation.

1.6 The complainant in this case
The complainant in this case was undoubtedly subjected to a very serious trauma. On the morning following the incident she attended Dr O’Gorman who took a medical history and conducted a medical examination. The report of the doctor is consistent with the complainant’s statement of events. In the period of time that has elapsed since the incident the complainant has manifested that she is a remarkable and resilient young woman who, fortunately for her own good and rehabilitation, is determined to make a good recovery, though this will clearly take a considerable period of time. In the time between the plea of guilty and today she has attended Dr McCarthy, consultant psychiatrist, to review her state of well-being and the court takes into account the contents of the doctor’s report. It is a matter of some regret that competent independent assessments of the effect of a crime on a particular victim were not part of a legislative scheme available to the court at the time the accused pleaded guilty to this offence. This situation has now been remedied by the provisions of s. 5 of the Criminal Justice Act 1993 and this, in my view, is a timely and welcome addition to the sentencing jurisdiction of criminal courts. Prior to the enactment of the 1993 Act the courts primarily relied on individual members of An Garda Síochána and the probation service to furnish information on the condition of a victim. While this situation may have been appropriate in certain types of cases, it was less than satisfactory when dealing with crimes of serious violence. In this case were it not for the voluntary and spirited co-operation of the complainant such information would not have been available to the court. The court, in dealing with the issue of sentence in this case, has of its own motion obtained an independent assessment of the effect on the complainant of the commission of this crime. In the particular circumstances of this case I regard the obtaining of such report as a proper exercise of the inherent jurisdiction of this Court, and further, that I may properly take the contents of such report into consideration in determining the issue of sentence.

1.7 The accused in this case
The accused in this case is younger than the complainant, and at the date of the commission of the offence was 17 years of age. His parents are small dairy farmers and the accused is the second of three teenage children. The family is respected in the local area, and neither the accused, nor any member of his family has ever come under adverse notice of An Garda Síochána. The accused has no previous convictions, but there was a suggestion of the beginnings of alcohol abuse. He was educated to group certificate level, and has been in continuous employment since October 1990 as an apprentice carpenter. He is a talented sportsman and has distinguished himself at minor level in hurling.

When the accused pleaded guilty to this offence the defence called a number of witnesses in evidence. Since the incident the accused has attended Dr Mooney, consultant psychiatrist, with whom he co-operated and made full disclosure. She expressed the view that he was a genuine young man who was committed to his family and his work, but who suffered to some extent from psychological difficulties. She found him to have poor emotional and social development, and detected a previously undiscovered dyslexia condition. Mrs Connolly, a local teacher, Father Campion, a local curate, Mr Lacey, the secretary of the local hurling club, and Mr Moore, a local builder who employs the accused, all gave evidence. These witnesses knew the accused and his family circumstances from an early age. The consensus of their careful and measured evidence was that the conduct of the accused was out of character and most unlikely to re-occur.

From the earliest stages of this incident the accused has admitted his guilt and accepted the serious harm that was caused by his conduct. When the accused was interviewed by Sergeant Tuohy he admitted his involvement in the offence and indicated a clear desire to plead guilty to any offence with which he might be charged. Subsequent to that interview he made a full written statement to the same effect. He also wrote to the complainant a letter admitting his guilt, acknowledging the wrong he had done to her, and expressing what I am satisfied is real remorse.

When the accused was arraigned on this offence he promptly pleaded guilty. This ensured that the complainant would not have to endure what can, on occasion, be the considerable ordeal of giving evidence in a case of this type. His conduct also ensured that the complainant would know from a very early stage that there was little prospect of her being subjected to such ordeal. In addition the State was saved the expense of what could have been a lengthy trial

1.8 The sentence in this case
In determining the appropriate sentence to be imposed a court of trial must weigh carefully the evidence before it, looking at the manner of commission of the particular crime, the character of the accused, and any other relevant information. The exercise of judicial discretion in sentencing a convicted person should never be formulaic in approach, nor subordinated to fixed policy criteria. I am also of the view that the legal and constitutional criteria that may properly be taken into account by a court of trial in determining the issue of sentence is never closed.

The accused in this case pleaded guilty to the crime of rape which is a serious crime of violence. The complainant suffered a serious trauma, and she is presently in the process of making what appears to be a good recovery.

The accused has been in the continuous care of Dr Mooney, and Ms O’Connell, a senior member of the probation service.

Over the period of the last year the court has had the benefit of two monthly assessment reports on the accused. The practice of the courts has been to treat the contents of all medical and welfare reports submitted for its consideration as confidential excepting the counsel and solicitors directly involved. The conclusions of these reports are very positive for the accused man, and they indicate a clear desire on his part to face up to a situation that he alone brought about.

I am also mindful as to whether, and if so to what extent, the accused in this case may constitute a danger into the future, either to himself or to the public at large. On the basis of the evidence I have heard and the reports I have considered this concern does not arise in this case.

He has shown real and convincing remorse virtually from the moment of commission of the crime. The probation reports confirm the fact and continuance of such remorse together with a manifest intention to seek to rehabilitate himself in society. This approach is, in my view, a condition precedent to a consideration of the possibility of a non-custodial regime of sentencing in a case of this type.

A judge may, in an appropriate case, investigate the prospect of placing an offender under the supervision of the probation service, or designate that he do a fixed number of hours of community service, or assess his suitability for an intensive probation course. These options have been introduced by the Oireachtas in order to promote the rehabilitation of offenders. The imprisonment of an offender, may do little to promote his rehabilitation upon eventual release. It is with regret that I note that there is, at this time, no structured programme for persons convicted of sexual offences in our prisons.

If a court decides to impose a non-custodial regime of sentencing then the conduct of the accused man is kept under constant supervision and his progress is reviewed periodically. Should an accused fail to co-operate in such regime the probation service can have the case re-listed before the court which will then, normally, proceed to impose a custodial sentence.

The category of case where a judge may consider a non-custodial sentencing regime where an accused has pleaded guilty to rape is very rare. I am, however, satisfied that the circumstances of this particular case are within that exceptional category identified by the Chief Justice in Tiernan’s case. The sentencing issue to be resolved in this case is whether the public good requires what on the circumstances of this case would be a largely symbolic exercise of imposing a custodial sentence, or alternatively, permit Dr Mooney and the probation service to continue the already implemented task of seeking to rehabilitate this young man.

Taking all the matters canvassed into careful consideration I have decided to impose a sentence of nine years’ penal servitude on the accused man.

I propose to suspend the entire of that sentence upon his agreeing to entering into a bond to keep the peace and be of good behaviour for a period of six years from today’s date, and I would propose to impose the following conditions on such bond, namely:

(1) that the accused comply with all requirements of the probation service as they may from time to time direct, and

(2) that the accused will continue to attend Dr Mooney or Dr Daly or whatever doctor nominated by the probation and welfare service and submit to such regime as she may direct.

In the event that the accused should breach the bond or any of these two conditions the prosecution are at liberty to re-list this matter, and the accused should clearly understand that this Court will immediately direct that he serve the sentence of nine years’ penal servitude.

The People (Director of Public Prosecutions) v FE

 

(Rape and Assault, Dublin)
S:AP:IE:2018:000067

Supreme Court

6 December 2019

unreported
[2019] IESC 85
Mr. Justice Peter Charleton

December 06, 2019

JUDGMENT
1. This judgment, on an appeal from the Court of Appeal by the Director of Public Prosecutions, concerns sentencing in rape cases in general and in cases where a series of criminal events require a court to consider the interrelatedness of those events in order to arrive at a just result. This requires an analysis of the nature and duration of the facts which constitute a crime, how earlier or later conduct should influence sentencing and, also, the proper approach to concurrent or consecutive sentences where wrongful conduct is reflected in a number of individual convictions. In seeking to reach an appropriate sentence for a group of convictions on this appeal, the most serious of which is rape, the Court must consider the validity of existing judgments and published research on sentencing precedents.

2. A crime may consist of a single event, as where A steals from V. Also a crime can be an event which takes time, as where A falsely imprisons V and subjects her to sexual violence. Sometimes a crime is committed and then is followed by another crime which occurs some time later but is similarly motivated, as where a husband rapes V, his wife, in circumstances of domestic domination and then attacks her weeks later with a view to re-establishing control after V has effectively ended the marriage by leaving the family residence. This last situation is what is in issue here.

Background
3. The accused and the victim married in 2005 and a child was born a few years later. The wife came from Ireland and the accused came from an African country. In the ordinary way, and in circumstances which could never impact on sentencing, unhappy differences emerged in the marriage including issues over absences for work and finance. By early 2014, the wife was actively considering ending the marriage, something with which the husband was not at all content. On 2 May 2014, there was a major row which involved an altercation. The wife moved into her mother’s home, but returned in consequence of an agreement with her husband that they would separate. This led to more arguments, since the husband either claimed never to have agreed or had re-thought the matter. On 25 May a row broke out in the matrimonial kitchen. The husband produced a knife and threatened his wife that he would “cut open” her face. He ordered her upstairs and raped her. He had told her that if she rang the gardaí on her mobile phone that they would not arrive in time to save her. During the night, she pretended reconciliation and so was able to leave in the morning. She went to the family law courts and obtained relevant orders of protection. He rang her and threatened to kill her the next day. A charge of assault was laid in respect of the incident on 2 May 2014, but since, at trial, the jury disagreed, the presumption of innocence was not displaced. As for the events of the day of 25 May, three charges were laid: 1 count of rape, 1 count of threat to cause serious harm, and 1 count of threat to kill. The accused was convicted at trial of all these.

4. Living at her parent’s home, the wife was not free of her husband’s negative attentions; including turning up to her workplace and confronting her at their child’s crèche. There are no specific charges on this. The husband took opportunities to initiate rows when meeting with the child and during the course of phone calls to or about the child. These led to no charges. On 9 June, however, the husband accosted the wife at a shopping centre and told her that the next time she saw him she would not see him coming and that he would be armed with a hammer. This was subject to a separate charge and conviction. Over that time there was constant checking by the husband on the wife’s movements through smartphone technology. On 6 August the husband turned up at the wife’s parents’ home and demanded entry while carrying a paper bag. She refused him entry. The next day there were two visits to the parents’ home where he first spoke to the wife’s mother. On the second occasion he returned carrying a paper bag. Claiming this concealed a present for the child, he gained entry. He produced a hammer and struck the wife several times on the head and also hit her mother on the head with the weapon. Neighbours intervened, one with a dog, and the husband fled, to be arrested by gardaí on a street close by, hiding behind a car. While the injuries from an attack of that kind could have resulted in death or serious injury, the result was multiple injuries to the wife including three deep lacerations and both she and her mother were brought to hospital. The attack was the subject of two charges.

Sentence and appeal
5. Before the trial judge in the Central Criminal Court in June 2016, there were pleas of guilty to the hammer attack, as an attempt to cause serious harm and assault. The rape charges and the various threats to kill were contested but guilty verdicts were returned unanimously on the rape count and on the three threats to kill. One count of threat to kill was directed by the trial judge, Kennedy J.

6. Sentences were imposed: of 14 years on the rape, a headline sentence reduced to 10 years through 2 years reduction in respect of mitigation and 2 years being suspended; of 5 years for the threat to kill on the occasion of the rape; of 3 years for the threat to kill, delivered by phone the day after; of 5 years for the threat to kill at the shopping centre on 9 June; of 7 years and 6 months for the attempt to cause serious harm at the wife’s parents’ home on 7 August; and of 3 years and 6 months for assault causing harm to the wife’s mother on that same day. These sentences were all concurrent. The trial judge also imposed a 5 year post-release supervision order. The accused appealed his conviction unsuccessfully in the Court of Appeal; [2018] IECA 314. However, the accused succeeded in February 2018 in his appeal on sentence; [2018] IECA 53.

7. In the Central Criminal Court, Kennedy J, in her sentencing remarks, considered the aggravating factors for the offences of 25 May. These, she said, were to include “the threat of violence with a weapon, the breach of trust, the violation of the injured party in her own home while her son was asleep, the fear that he instilled in her and the severe effect on his victim.” She correctly approached the sentence by arriving at a headline, that is by, firstly, identifying the severity without taking mitigation into account and then, secondly, by factoring in mitigation in terms of reduction of time served and suspension. The Court of Appeal reduced the headline sentence on the rape to 12 years and took off 2 years for mitigation, the same as the trial judge, and suspended 18 months. Thus the 10 year actual time to be served became 8 years and 6 months. The Court of Appeal did not overturn the sentence of 7 years and 6 months for the assault on the wife with the hammer. On the rape, giving the court’s judgment, Edwards J stated at paragraph 34:

While we accept that the circumstances of the case were egregious, and that it was very serious crime, we also agree with the submission made by counsel for the appellant that, viewed in isolation, the sentence on the rape appears to be somewhat out of kilter with sentences imposed in comparable cases. We have therefore concluded that the sentencing judge was incorrect to have assessed the case as meriting in the first instance a headline sentence of fourteen years. Our conclusion is that while the gravity of the offence, (determined with reference to the appellant’s culpability, and the harm done) certainly merited the imposition of a substantial custodial sentence, it did not merit a headline sentence of that severity. We therefore uphold the first ground of appeal.

8. The Court of Appeal regarded their function only to correct any error as to whether a consecutive sentence should or should not have been imposed. As to whether the sentences were to be consecutive or concurrent, the court considered this to be dependant on whether the Director of Public Prosecutions had appealed on undue leniency. Thus the court required a ground of appeal stating that the sentences in respect of the two main group of incidents, the rape and its attendant circumstances and the events of the assault, should not have been concurrent. At paragraph 35, Edwards J stated:

We would remark at this point that the appellant is perhaps fortunate that the sentencing judge did not decide to make the sentences on Counts Nos. 8 and 10, respectively, concurrent inter se but consecutive to the sentence on Count No 7. If she had chosen to do so, and it was an option that was certainly open to her in the circumstances of the case, while she would have had to reduce the aggregate total considerably to take account of the totality principle, the final result would almost certainly have been a sentence of at least as long as the sentence on Count No 2 now appealed against, and it is far from certain that Court would have been disposed to interfere with such a sentence. However, the sentencing judge did not in fact opt for consecutive sentencing, and her decision in that regard has not been criticised at the hearing before us.

9. This Court granted leave on 15 February 2019 based on the contention by the Director of Public Prosecutions that a point of law of general public importance arose:

The Director’s primary complaint relates to the reference by the Court to “viewing the offence in isolation”. She submits that the rape should have been seen as part of a pattern of violent and abusive behaviour, and the sentence should have reflected the totality of that behaviour. This could have been done by imposing consecutive sentences, and indeed the Court of Appeal observed that if that course had been taken, and the trial judge had come to the figure of twelve years, it might well not have been disturbed. However, the Director’s preferred proposal is that the sentence for the most serious offence should be set at a level reflecting the surrounding circumstances. It is said that this would be particularly appropriate in cases of marital rape, where there may well be a pattern of violence and abuse.

10. Arising from the judgment of the Court of Appeal, the first issue that arises is whether the rape offence should have been “viewed in isolation”. That, in turn requires an analysis of what constitutes the circumstances of a crime for sentencing purposes.

Circumstances of a crime
11. Here, two fundamental principles of sentencing may seem in conflict. A crime cannot be viewed in isolation from its surrounding circumstances. Nor can events entirely separate in time and character in respect of which the accused was either acquitted or never charged be factored into account in order to aggravate a sentence. Those apparently conflicting principles only arise if an unnaturally diffracted analysis is made of the surrounding facts and circumstances of criminal conduct that are essentially part of the sentencing judge’s duty to analyse in coming to a just sentencing result. That difficulty does not arise where a crime is not seen in isolation but is analysed as an event in itself and as one with an aggravating or mitigating background. A crime is an event and, as such, may take place over an instant or over a stretch of time. It should be analysed as such and in the context of its background. What led to the crime, in terms of what tempted the accused, or the pressures he or she was under, is part of that background as are factors which aggravate the seriousness of the crime or mitigate the individual culpability of the criminal. Sentencing is undertaken by judges on behalf of the community and an approach which reflects the ordinary sense of the crimes as they occur over time and the context that led to the events as reflected in the convictions represents the best approach.

12. A person cannot be given a heightened sentence for one crime by taking another crime of which that accused was either acquitted or was never charged into consideration; R v Kidd [1998] 1 WLR 604. In the context of sexual violence by men on women, it frequently happens that a charge of rape is laid against an accused and the jury assess that some element of that offence has not been proven beyond reasonable doubt and, instead, convict of a lesser included offence, or alternative charge if laid in the indictment, of sexual assault. The jury verdict cannot be gainsaid. Hence, the sentence will be on the basis of the lesser offence. But the circumstances of the actual offence must be looked at closely and not naively. Where a man is caught on one occasion in possession of stolen cars, the engine and chassis numbers of which have been erased and replaced by false data, the suspicion of the investigating gardaí may be expressed to the sentencing court that the conduct discovered was the tip of the proverbial iceberg, but the court cannot sentence on the basis of professional receivership stretching over a decade. That may be the suspicion, but it is only the circumstances of the crime as proven, or from which inescapable inferences arise, that a court is entitled to act on. In that instance, even though other offences appear to lurk over the horizon and cannot be taken into account unless the accused admits them and asks for his record to be finalised, it is the counts in respect of which there is a conviction upon which the court will act. But, a crime is an event and the gravity of a criminal event is assessed according to its circumstances. In the example given, the number of stolen cars, the circumstances in which the accused engaged in criminal business, and the professionalism of the concealment of the cars’ identity are part of the matrix of fact which the court must consider. Such a case would be much more serious than that of an accused caught in possession of a single stolen car not in the way of trade but having foolishly purchased it from another person at an undervalue.

13. The principle is as stated by Lord Bingham in R v Kidd, the circumstances matter. At page 607 of the report in that case, he also correctly stated that to take unproven crimes into consideration in sentencing for counts to which the accused has pleaded guilty can amount to a separate conviction which a sentencing court is not entitled to enter. Other events can, of course, be taken into account at the accused’s own request after admission. Otherwise, an accused “may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Reg. v Anderson (Keith) [1978] A C 964.” In The People (DPP) v Gilligan [2004] 3 IR 87, the accused was convicted of 5 counts unlawful importation of drugs for the purpose of sale and supply over a period specified in each count of about half a year, the possession being “on a date unknown”. The sequential timescale of those counts coupled with similarly titrated importation counts showed a course of drug dealing over more than two years. The Special Criminal Court, in convicting the accused, had found as a fact, later upheld on appeal by the Supreme Court, that he was the leader of a drug gang which operated a commercial operation in criminality. McCracken J for the Court of Criminal Appeal stated at page 91 that “quite clearly a sentencing court cannot act in blinkers.” He continued:

While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not be sentenced in respect of offences with which he was neither charged nor convicted and which he has not asked to be taken into account, nevertheless the court in looking at each individual conviction is entitled to, and indeed possibly bound to, take into consideration the facts and circumstances surrounding that conviction.

14. On behalf of the accused, the argument had been made that what was involved in consequence of the verdicts against him were six isolated importations on one occasion and five isolated instances of possession on five individual occasions. For the Director of Public Prosecutions, it was contended that the crime was an event and that the sequence and context of events informed the gravity of offences. The accused’s argument was rejected, and that principle accepted, McCracken J continuing:

Indeed, if that were not so and these were treated as isolated incidents occurring at six month intervals, it might well be that the proper course for the court to adopt would be to impose consecutive sentences. The court does, therefore, accept the basic principle behind the argument of counsel for the Director of Public Prosecutions. However, the court does think it important to emphasise that in many cases there may be a very narrow dividing line between sentencing for offences for which there has been no conviction and taking into account surrounding circumstances, which may include evidence of other offences, in determining the proper sentence for offences of which there has been a conviction. It is important that courts should scrupulously respect this dividing line.

15. In adjusting the sentences, the Court of Criminal Appeal considered that “the facts and circumstances surrounding the commission of the offences” were part of the exercise. These disclosed a concealed and sophisticated operation by organised crime. The facts were a necessary aspect of any rational consideration of the criminal conduct of the accused.

16. Stating the principle that the circumstances of the commission of an offence inform its gravity is so fundamental that it has not been necessary for either the courts or the academic community to debate it. Once offences which have not been admitted are not used to enhance the gravity of what the accused is convicted of, or pleads to, it is beyond argument that background and circumstances require consideration. In Emmins on Sentencing (4th edition, 2001) and in other valuable texts such as O’Malley, Sentencing Law and Practice (3rd edition, 2016) lists of both aggravating and mitigating circumstances to a crime are set out and analysed. Since it is part of mitigation that, for instance, the accused was young or a naïve follower of criminals of experience, it is part of aggravation that the accused was the leader of an organised crime gang and conducted his operations with sophistication and foresight. A court will always ask how serious the offence was. In this context, Emmins unimpeachably states the principles at page 54-5:

It is very difficult to define ‘seriousness’ in the abstract, and no attempt is made to do so in existing sentencing law. It is of great importance, however, for the sentencer to gauge the seriousness of one offence in relation to another, and to distinguish within each offence, for example one case of burglary from another case of burglary. Distinctions also need to be drawn between the respective roles played by co-defendants in a particular case. This is a demanding task for the sentencer, but it is central to the sentencing decision. It is perhaps not so difficult as it might sound. In assessing seriousness, the sentencer should have regard to the immediate circumstances of the offence, and the degree of the offender’s culpability in relation to that offence… In determining the seriousness of the offence, the sentencer must always take into account any aggravating or mitigating factors which impinge upon the question of offence seriousness. Some of the factors apply across a range of offences. An example … is where the offender has committed the offence in ‘breach of trust’. This has relevance in theft and deception offences, for example where a senior employee abuses his position of responsibility to embezzle funds or provide an outside team of offenders with a key to a storeroom. It also has relevance in sexual offences, for example where a schoolteacher or a social worker abuses that position of authority to commit a sexual offence on a child. An example of a general factor which tends to make an offence less serious is where there was provocation immediately before the offence. … There are other factors which are relevant to seriousness in a more restricted range of offending. Thus, if the offence is one involving dishonesty, the court, as well as considering any breach of trust, will also be influenced by matters such as whether the offence was carefully planned or was committed on impulse, the value of the property involved and by whether any, and how much, of it has been recovered. If the offence is one of violence, the court will be influenced by the severity of the injuries caused to the victim, the extent to which the victim has recovered, the offender’s intention (or lack of it) to cause serious injury and the nature of the weapon (if any) which was used. By weighing up factors such as these, the sentencer will be able to reach a view on offence seriousness and hence a provisional view on the appropriate sentence.

17. Depending on the definitional elements of an offence, the duration of a crime may vary from a moment to perhaps several months. To return to Gilligan, importation occurs where a person brings contraband, meaning for instance firearms or explosives or controlled drugs, into the State from outside. Thus, that offence could be analysed as occurring over a single instant, the moment of landing at Dublin Airport for example. Such an approach in defiance of surrounding circumstances would be wrong. In a simple case, a girl may be approached at a foreign airport and asked to bring a package into Ireland. That is one kind of case. In another, as in Gilligan, several criminals may carefully plan a route for the importation of drugs, enticing a person without a criminal record to allow port facilities in Cork to be used, setting up a chain of command and a supply and distribution route and agreeing the counting, the splitting, and the exportation to foreign countries, of profits. Otherwise, in another contrast to the girl in the airport being tempted, a cocaine importation may be carefully organised, with an ocean-going yacht sailing the Atlantic, false documentation and carefully laid plans; The People (DPP) v Wharrie [2017] IESC 47. These two types of situation are clearly very different. An assault can be spontaneous, with mild ill-effects or it can be a planned act of revenge effected by inveigling others into the scheme and with very serious consequences.

18. A crime may be committed in an instant, as where a person in a supermarket takes away a frying pan without paying for it, or it may take time, as where a person steals from a supermarket in the middle of the night by breaking in through the roof with accomplices and stealing cash. Both of these are event crimes, but both differ in circumstance, and circumstance informs gravity. The possession offences in Gilligan were situation crimes. Certainly, to possess contraband a person needs to get it from somewhere or someone, be it drugs or explosives or firearms. But possession can be for a short time, the situation of having an article and passing it to another, or of keeping a stash of drugs long term to supply other dealers, or of keeping ammunition or machine guns in a store to have it available to terrorists. Where crime is organised, possession offences may involve several people and some may keep the contraband for others. The possession is then part of a common design and both the custodian and the person directing the custodian are in possession. Central to a just resolution is a judicial decision as to the degree of responsibility or authority. Situations can be radically different from each other. The event in crime may be importation or it can be manufacture. Thus, while possession of amphetamine in a warehouse is the situation which is the crime, the effort put into a manufacturing operation that led to the drugs being there in the first place and the level of organisation clearly aggravates the circumstances.

19. In that regard, what a court is looking at is the event of the crime. It should not be difficult to say when that begins and when circumstances become so remote as to be beyond the point where a criminal event ends. Thus, for an accused to engage in covering his or her tracks so that the crime is concealed remains part of the circumstances of the crime and its effects; as in The People (DPP) v O’Donoghue (Unreported, Court of Criminal Appeal, 18 October 2006) where a body was hidden after the victim was unlawfully killed. When judges consider the effect of a crime on a victim that analysis still remains, in the words of Macken J in The People (DPP) v Mulhall [2010] IECCA 72, an exercise which involves “scrupulous respect of the dividing line” between offences which are not before the court, because there is no conviction or request by the accused that these be taken into account, and the circumstances and effects of the crime, which self-evidently are. In Mulhall, it was remarked by Macken J that:

It is evident that in all the cases that the issue depends on the particular facts. In each of the cases the court also recognised, in quite different contexts, the difficulties which may arise for a sentencing judge when seeking to delineate between such surrounding circumstances as he may properly have regard to in constructing an appropriate sentence, and those actions or matters in respect of which the accused was not charged or which he had not admitted or asked to have taken into account, as arose for example in the particular circumstances of the Gilligan case supra. It is for the trial judge, when sentencing, to consider whether the actions which could have formed a separate charge bear a close relationship to the events surrounding the charge in suit, or whether these actions are, rather, too remote to be taken into account. It is undoubtedly the case that it may be difficult, in particular circumstances, to ensure that the dividing line … However, it would not be possible to fix a precise “extent” to which such actions are to be considered, a “relevant or aggravating factor”, in all circumstances, as the question seeks to do. The most that can be said is that the closer the actions are related to the events giving rise to the charge in suit, the more evident it is that they can be taken into account in fixing an appropriate sentence. Having regard to the circumstances in which the issue has arisen in cases such as DPP v Gilligan, supra., and in R v Kidd, supra., it must be accepted that if the events are all proximate to the charge in suit, it may well be appropriate to have particular regard to them.

20. Even by mentioning circumstances of mitigation in a plea on behalf of an accused, it becomes accepted that the crime is not of itself all that is relevant to the correct approach to sentencing. Similarly, the event of the crime is not to be isolated from its contingent circumstances and the harm it causes.

21. In the latest version of the sentencing handbook prepared by the Judicial Researchers Office, ‘Rape Sentencing Analysis: The WD Case & Beyond’ written by Katharina Ó Cathaoir in 2012 and updated by Jack Meredith in 2017, and by Caoimhe Hunter Blair in 2019 for the purposes of this judgment, among the factors of mitigation mentioned in relation to rape include strong work record, full admission, early plea of guilty, genuine remorse, substance abuse problems, difficult upbringing, intellectual impairment and prior character. In terms of aggravation, among the factors are prior convictions, the duration of the abuse, attacking a victim in their own home, physical domination, systematic grooming, plying a victim with alcohol and being a family member. In the analysis, all of the individual circumstances of the rape cases considered are set out by the sentencing judges in arriving at the appropriate penalty.

The argument here
22. It is notable that in both the submissions on behalf of the Director of Public Prosecutions, as appellant, and of the accused in response, no attempt is made but to accept that the circumstances of this rape included all that happened in the kitchen, involving the knife threat, and the actual sexual violence itself and the aftermath up to the victim fleeing the house in the morning. Those submissions accord both with the law and with ordinary sense. It is clear that the difficulty that gave rise to this case was not in the approach of the trial judge in the Central Criminal Court but rather in the Court of Appeal “viewing the offence in isolation”; meaning that on appeal the horrible threat in the kitchen was treated as being separate from the violence in the bedroom and from the effective detention of the victim until she could flee. As the case law demonstrates, just because what might ordinarily be called a criminal event is split into two charges, that does not mean that the penalty for each offence should not influence the other. When crimes are proximate to each other, then just like events, it is appropriate to have regard to the overall event in sentencing. That was not done by the Court of Appeal. Hence, it is not correct to say that the rape was isolated from the fact that the unwilling submission of the victim was because of fear in consequence of a separate crime, and that an aggravating circumstance was keeping her trapped overnight and in fear for her child. Good charging practice may involve, as here, a decision being made that events should be divided and that charges, if open, should be founded on each. After all, the jury may not be convinced of one incident, but satisfied of another. In that case, the verdict is to be followed in sentencing. But that was not an issue here. The rape happened because of a horrible threat and the circumstances involved an abuse of the trust which a wife should have in her husband, an abuse in the family home, and the generation of fear to keep the victim in domestic thrall.

23. In order to meet the argument that it may have been appropriate to look at a sequence of events in isolation, and to extract the rape and its circumstances from what occurred in the house that night, the Director of Public Prosecutions has countered with an argument that extended the event of the crime over two months and six weeks so that the aggravating circumstance of the rape in May would include the vicious attack with a hammer in August. While eloquently put, it is impossible to fully accept the argument put in the written submissions of the prosecution that an assault months later was proximate to the rape:

In the present case, the other actions of the Respondent against the complainant were sufficiently proximate to justify their being taken into account for the purpose of sentencing the rape offence. They were proximate, first of all, in the sense that some, at least, were close in time to that offence, but also in the broader, but no less valid, sense that they were closely intertwined as part of a pattern of deliberate, abusive, harmful and intimidatory conduct directed by the Respondent against the complainant. Therefore, in circumstances where concurrent sentences were being imposed, those surrounding circumstances should have been treated as an aggravating factor for the purpose of assessing the gravity of the most serious offence which, in this instance, was rape.

24. Seeking to anticipate a law reform, and ostensibly bypassing Article 15.5.1° of the Constitution, the prosecution also argue that an offence not then in force should serve as the link which binds together the disparate events of the sexual violence and the physical violence months later:

The description of the Respondent’s conduct set out above in Paragraphs (2) to (6) of these submissions provides no more than a flavour of the Respondent’s conduct towards the complainant. The complainant’s experience, as well as that of her young child and her parents, is set out in detail in her victim impact statement which is quoted at length in the judgment of the Court of Appeal, and to which this Court’s attention will be drawn. It is also relevant to note in this context that, since the offences in this case were committed and, indeed, since the appeal was decided, the Istanbul Convention has been ratified (see further below, at paragraph 29) and the Domestic Violence Act 2018 has come into operation. Section 39 of this Act creates a new offence of coercive and controlling behaviour. It provides that a person commits an offence where he or she knowingly and persistently engages in behaviour that (a) is controlling or coercive; (b) has a serious effect on a relevant person and (c) a reasonable person would consider likely to have a serious effect on a “relevant person” (defined to include a spouse or civil partner). The conduct will have a “serious effect” if it causes the relevant person (a) to fear that violence will be used against him or her, or (b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities. Such a charge could not legally have been brought in the present case, because the relevant legislation did not exist at the time, but its present existence is a clear indication of the seriousness with which society and the law view behaviour of this nature on the part of one spouse or partner towards the other. To this extent, it provides further support for the argument that, in a case like the present, other coercive or abuse behaviour should be treated as an aggravating factor when it provides the context within which the relevant offence was committed. Again, it bears repeating that in this case, there is no doubt about the existence of that other behaviour because it has resulted in both charges and convictions.

25. The accused, on the other hand, has confined any argument as to seriousness to the events of the sexual violence and accepted that this runs from the occasion of the threat in the kitchen to the escape from the house the next morning in informing the seriousness of the rape itself.

26. There is no doubt that domestic domination is a serious wrong. The change brought by the Oireachtas in the form of sections 39 and 40 of the Domestic Violence Act 2018 will be measures of protection, particularly to women, in the future. The passing of that law does not mean, however, that a gap was filled in an approach by sentencing judges which lessened the seriousness of rape within a subsisting marriage or that a background circumstance of domestic domination is not to be taken into account in sexual violence cases. Clearly it is. Equally clearly the ‘WD Case and Beyond’ analysis demonstrates that violence in the home, breach of trust, domination and a background of abuse are rightly regarded by the courts as aggravating circumstances.

The events here
27. In so far as a problem in relation to separate crimes and whether these are part of and should inform the same incident, the following may be stated: where the event involves an aggravating factor which is also a crime, the admission of the accused to the event, or conviction on the event, as including the aggravating factor informs the seriousness of the offence. Where a separate crime is charged together with another crime, if the accused is acquitted of one offence, that verdict must be respected. The background and circumstances of the accused may be mitigating. So are the background and circumstances and consequences of the crime in determining its seriousness. In attempting to judge what is the event of the crime, that should be looked at with good sense.

28. Here, the example presents itself of a threat, a rape and of keeping a victim overnight. All of these are the event which the judge will sentence on whether false imprisonment and threat to kill are separately charged. Where separately charged and convictions entered, all these offences inform the seriousness of each other crime. The threat occurred to facilitate rape, the rape occurred because of the threat, the rape was sought to be covered up by the captivity of the victim. Where time passes and the accused decides to commit another crime, such as threatening the wife in the supermarket or the horrible assault months later, these are separate crimes. The accused, after all, had a separate choice as to whether to pursue such crimes. It is of course relevant to sentencing that the accused was attempting to harm his wife so that no prosecution would take place, if that be the case, or that the threats and attacks were part of a violent disposition to dominate women. Where the events are later in time and not proximate to the main charge, these should be separately charged. Even where there is no separate charge, if an accused pleads good character in mitigation, his actions after an offence, but not part of the circumstances of the crime, may undermine that plea.

29. No comment is made on interpreting a verdict where two versions of the seriousness of the offence are put forward by prosecution and defence, and the judge needs to sentence on one or other of these. That was considered in this Court’s judgment in The People (DPP) v Mahon [2019] IESC 24.

Concurrent and consecutive sentences
30. The Director of Public Prosecutions has argued that if the appeal against the reduction of the sentence by the Court of Appeal is not found to be wrong in law that the sentence, in any event, should be increased by making the events of the assault of 6 August through a consecutive sentence to the rape on 25 May. This would have the effect of increasing the time spent by the husband in jail, notwithstanding the adjustment made by the Court of Appeal. The husband asserts that a consecutive sentence in these circumstances would be wrong in principle; despite arguing that the assault on the wife and her mother are not part of the aggravating circumstances of the rape.

31. In many instances, but even still sensibly looked at, a criminal event may consist of several different offences. The accused could be a male burglar who breaks into a house in order to steal. In doing so he will be carrying housebreaking implements, he will criminally damage doors and windows to enter and make good his escape, he will steal, he may threaten to kill the householder if confronted, he may tie her up, thus assaulting and falsely imprisoning her. That may take half an hour. It is still one event. While separate charges may be sensible in case the jury are inclined to reject part of the narrative, such as the threat to kill, each crime informs the seriousness of the others in the set. It would be wrong in principle for a sentencing court faced with four convictions out of the same events to split these up for tariff purposes and make each term consecutive to the other. That would be to act artificially. The event of the crime was clearly very bad and deserves an appropriate sentence. It is not appropriate to treat the events as separate and requiring consecutive sentences. The overall sentence, usually on the most serious of the offences, which would be the imprisonment aggravated by the threat to kill, must fit the event with other smaller sentences running concurrently.

32. These issues are dealt with in the textbooks, including O’Malley on Sentencing Law and Practice at paragraphs 5.27—5.33. While there are some statutory provisions requiring a consecutive sentence, such as offending while on bail contrary to s 22 of the Criminal Justice Act or crimes committed by serving prisoners s 13 of the Criminal Law Act 1976, the choice of concurrent or consecutive sentences is a matter for analysis by the trial judge. In principle, what is stated in Emmins on Sentencing (4th edition, 2001) at pages 150-1 remains accurate:

It is wrong in principle to pass consecutive custodial terms for two or more offences if to do so would, in effect, punish the offender twice for what was really one crime. … Even where … The offender has committed two quite distinct offences, sentences imposed should still be concurrent where the offences arise out of the same set of facts: the ‘same occasion’ or the ‘same transaction’.

33. Some jurisdictions have an approach to sentencing which may result in what the Director of Public Prosecutions refers to in submissions as a “crushing sentence”. Hence, the final sentence should be appropriate for what the accused is guilty of. That can be achieved by reducing the term that is appropriate to consecutive sentences, thus reflecting the overall gravity in the main crime in a series of offences, or the court should arrive at a main sentence for the worst offence, with others concurrent, which reflects the overall gravity of the events. Hence, this following passage in Emmins (page 148-149) reflects current practice in this jurisdiction:

It is well established that sentences must have regard to the total length of the sentence passed, particularly where consecutive sentences have been imposed, to ensure that the sentence properly reflects the overall seriousness of the behaviour. This effect will not be achieved merely by adding the sentences of a multiple vendor together, for this will soon result in a total sentence out of all proportion to the kind of offending which has taken place. This principle, which has its clearest application in relation to custodial sentences has achieved a oblique recognition in the Criminal Justice Act 1991, s. 28(2)(b) which states that nothing shall prevent a court ‘in the case of an offender who was convicted of one or more other offences from mitigating his sentence by applying any rule of law as to the totality of sentences’. … If offences are committed on different occasions, or are not part of the ‘same transaction’, there is no objection to imposing consecutive sentence but this approach should not be regarded as inevitable. … Bearing in mind the totality principle, it may be more convenient for the sentence, particularly when sentencing for a series of similar offences, to pass a proportionate sentence for the most serious offence, coupled with shorter, concurrent terms for the less serious matters. In that way the various terms reflect the relative seriousness of the offences for which they are imposed, but the overall punishment remains in proportion to the overall gravity of the offender’s criminal conduct.

34. Part of a decision in regarding a consecutive sentence as opposed to making all sentences concurrent will be the existence of a gap in time. In The People (DPP) v McKenna (No. 2) [2002] 2 IR 345 there were 31 offences of sexual violence against the accused’s own daughter. On an appeal on leniency, the Court of Criminal Appeal regarded a three year sentence as unduly lenient. A series of the offences had been committed on the return of the father from a six month stint abroad. This latter group were made consecutive to the first, thus doubling the sentence. Where, as in The People (DPP) v Kenneally [2018] IECA as a result of the recurrent problem of constant amendment of the law on sexual violence and the non-codification in one Act of the law on sexual violence a judge thought he was bound by a two year maximum sentence for sexual assault, 10 shorter sentences consecutive to each other, resulting in 170 months, was not regarded as wrong since the overall sentence reflected the gravity of the offending against 10 victims over a period of years. Indeed the principle that should be born in mind where there are several victims is that the courts should, if it is just, reflect the gravity of what happened to each. Were it to be that there was a more serious offence, such as rape or incest, the sentences of the other victims could be partly concurrent and partly consecutive.

35. While there is no obligation to impose consecutive sentences, it may be appropriate to do so by reason of a gap in offending, there being more than one victim, or where the facts are not related. All of this is a matter of good sense and it would not reflect good sense to consider a series of offences over years against the same victim of the same seriousness to each carry a sentence as if that crime were isolated from what came before or after. This might result in a series of offences against the same victim receiving an inappropriate sentence where the human reality was that each offence made recovery from the others increasingly difficult. The totality principle means that the judge should objectively consider the overall impact of the offence on the victim or victims and also the rehabilitative effect of the overall result in light of the final total, and the justice of retribution and the need to mark the harm to the victim or victims. Thus, Street CJ’s description of the principle in R v Holder [1983] 3 NSWLR 245 and in R v MMK (2006) 164 A Crim R 481 at 12 is apposite:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

36. See also, in Canada R v M [1996] 1 SCR 500, paragraph 42 and The People (DPP) v McC [2003] 3 IR 609 at 618. Finally, what should not be lost sight of is that sentencing is about punishing the offender, protecting society and offering the possibility of rehabilitation within the penal system of a violent perpetrator. In prison, offenders have access to counselling, education, training and exercise. More might be wished for, but rehabilitation is up to the offender, starting with a clear self-analysis. While the courts act for society, and while victims have an expectation of redress, this is not to be equated with engaging in retribution or in exacting revenge; The People (DPP) v MS [2000] 2 IR 592, and the approach of Roach JA in R v Warner [1946] OR 808 at 815. These principles were made clear by the Supreme Court in The People (DPP) v M [1994] 3 IR 306 through Denham J at pp 316-8. She pointed out that the “nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing”. This approach she described as “the essence of the discretionary nature of sentencing”.

37. But the function of counsel is also important. Here, it has been stated that because the Director of Public Prosecutions did not look for a consecutive sentence in respect of the vicious assault with the hammer about 10 weeks after the rape, that a court should not do so of its own motion. That is not correct.

Function of counsel in sentencing
38. What sentencing band the Director of Public Prosecutions considers an offender fits within should be the subject of a specific submission by counsel to the sentencing court. Precedents are decisions of law that at least influence subsequent decisions by courts. As a matter of logic, a court is left without a necessary analysis where a party does not reference a point of law but instead chooses to raise an argument based on it on appeal. This is the situation with s 2 of the Criminal Justice Act 1993 which enables an appeal by the prosecution if “it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a person on indictment was unduly lenient” he or she “may apply to the Court of Appeal to review the sentence.” There, the powers to be exercised on appeal are to refuse the application or “quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned”. It may be that the interpretation of cases such as The People (DPP) v FitzGibbon [2014] IECCA 25 and The People (DPP) v Husseyn [2015] IECA 187 has led to a misunderstanding. Given the general wording of s 2 of the 1993 Act, an appellate court is not trammelled by an argument not being made before the sentencing court and on appeal. The duty of the court is more than as between the parties and involves finding the correct sentence as a matter of justice. Thus, while it is not a rule of law, it is a rule of good practice to mention if the view of the prosecution is that some conviction fits within the principle of a possible consecutive sentence. Further, the prosecution, while not demanding a sentence or suggesting it, should make a submission as a matter of law as to the appropriate band. That, after all, is what happens on appeal.

39. A substantial body of sentencing analysis has been conducted by the courts. The most serious crimes have been researched and explained in terms of the relevant sentencing precedents. For instance, this current decision deals with sentencing bands in rape and this Court’s decision in The People (DPP) v Mahon [2019] 24 considered and set out all of the relevant sentencing bands for manslaughter. Both those decisions were based on research carried out internally by the courts through the judicial assistants. The courts have not set out rigid guidelines for sentencing but have clearly stated that reliance on the courts’ own research and on judgments on precedent are both useful and an aid to practice in the administration of justice; The People (DPP) v Adam Keane [2008] 3 IR 177. Internal research done by the Judicial Researchers’ Office is available to the judiciary including: Rape Sentencing Analysis: The WD Case & Beyond; Analysis of Manslaughter Sentencing 2007-2012; Analysis of Sentencing in Robbery; and Analysis of Sentencing for Possession or Importation of Drugs for Sale or Supply. In The People (DPP) v PH [2007] IEHC 335 and The People (DPP) v WD [2008] 1 IR 308 there is an analysis of rape sentencing which has been updated. In The People (DPP) v Fitzgibbon [2014] 2 ILRM 116 and The People (DPP) v Ryan [2014] IECCA 11, the Court of Criminal Appeal produced indicative bands for assault causing serious harm and firearms offences respectively. In The People (DPP) v Z [2014] 1 IR 613, a clear statement was made on the role of counsel for the prosecution in sentencing since the passing of s 2 of the 1993 Act. Most importantly, in The People (DPP) v Fitzgibbon (No 2) [2014] 1 IR 627, Clarke J for the Court of Criminal Appeal emphasised the role of the prosecution in offering assistance as to an appropriate sentence, as opposed to demanding a particular sentence. In this regard precedent sentences are key, as are analyses of relevant bands within which it may be suggested a case might appropriately be placed. In the Ryan case, through Clarke J at paragraphs 3.1 and 3.2, the Court of Criminal Appeal offered the clearest guidance as to the proper approach of the parties at sentencing. This is good practice and of assistance to the sentencing and to the appellate court. Further, in light of such research and of those series of judgments it is not correct to regard the judiciary as acting in the absence of guidance.

Rape sentencing analysis
40. As was affirmed by this Court in The People (DPP) v Mahon [2019] IESC 24, the starting point for a sentence was correctly stated by the Court of Appeal to be the headline tariff, the sentence before any mitigating factors might reduce the sentence or cause any portion of it to be suspended; The People (DPP) v M [1994] 3 IR at 315, The People (Director of Public Prosecutions) v Farrell [2010] IECCA 116, and The People (DPP) v Flynn [2015] IECA 290 where Edwards J stated this principle in emphatic terms. Turning thus to the current revision of ‘Rape Sentencing Analysis: The WD Case & Beyond’ and the case law on which it is based, guidance as to sentencing bands is appropriate. In referencing recent sentences, it should be noted that these are not hereby approved. This exercise is instead pursued in order to find broad patterns with a view to illustrating sentencing bands.

Suspended sentence for rape
41. Before any consideration should be given to any submission by defence counsel that any form of suspended sentence for rape may be appropriate in a given case, the culpability involved in the definitional elements of the crime should be foremost in the court’s mind. In The People (DPP) v CO’R [2016] 3 IR 322 the accused, who was convicted of raping his mother, unsuccessfully appealed against his conviction in the Court of Appeal. On the appeal to this Court central to an appropriate consideration of the case was s 2(2) of the Criminal Law (Rape) Act 1981. This states:

It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

42. Rape occurs where a woman is subjected to sexual intercourse by a man where she does not consent and the man knows or is reckless as to absence of that consent. While this is a subjective test, recklessness in the context of rape was “the taking of a serious and unjustified risk”, where the possibility that a woman was not consenting to sexual intercourse “actually occurred in the mind of the accused”. An accused acts recklessly, within the meaning of the mental element of recklessness under the 1981 Act, where he is aware of the possibility that a woman may not be consenting but decides to “proceed with or continue with intercourse in spite of adverting to that risk”; see paragraph 45. Consent is not present where the woman is so drunk as not to be able to consent, or is asleep. A deliberate turning away from the issue of consent is recklessness since it seems difficult to shut one’s mind to a fact without adverting to the risk of the fact; The People (DPP) v MC [2018] IECA 137 and see now s 9 of the Criminal Law (Rape) (Amendment) Act 1990 as inserted by s 48 of the Criminal Law (Sexual Offences) Act 2017 which places consent on a statutory footing, replicating common law principles.

43. In awareness of the seriousness of the definitional elements of crimes of sexual violence, time and again, since The People (DPP) v. Tiernan [1988] 1 IR 250, it has been unequivocally declared by the courts that rape is a violation in the most serious way of the constitutionally protected rights of women to their bodily integrity and to their physical and mental independence. In The People (DPP) v C [2015] IECA 76 the Court of Appeal acknowledged the long-standing view of the courts that rape and other offences of sexual violence “cause suffering that is profound and long-lasting” impacting on family and children and which “often takes years” to overcome the trauma and to report offences.

44. Accordingly, the analysis in this case and in the work referenced here into precedents elucidates that while there is no absolute rule that a custodial sentence must be imposed regardless of the plea of guilty, a custodial sentence is all but inescapable; The People (DPP) v R O’D [2000] 4 IR 361 at p 363, The People (DPP) v McCormack [2000] 4 IR 356. Hence, rape merits a custodial sentence but the court “must not deprive itself of the possibility of identifying the exceptional case where a custodial sentence may not be warranted”. A non-custodial sentence should be “wholly exceptional” on the Tiernan principles. Since the WD judgment in 2007, the research shows that the circumstances must be so completely exceptional as to “allow the court to approach sentencing for an offence of rape in a way that deviates so completely from the norm established by the case law.” That might happen, perhaps, where a victim has particular and convincing reasons to take a forgiving attitude towards the perpetrator. While the attitude of the victim may be of assistance, it should always be remembered that it is not determinative: a crime is an attack on society, and not simply a private wrong. There is no acceptance in this jurisdiction that any principle derived from the English case of R v Greaves [1999] 1 Cr App R (S) 319 that because “a good deal of sexual intimacy took place short of sexual intercourse” between the parties and the fact intercourse began by consent, could ever be an excuse. It should immediately stop once consent is withdrawn. What is stated in s 9(4) of the Criminal Law (Rape) Act 1990, as substituted by s 48 of the Criminal Law (Sexual Offences) Act 2019 is now, but was also always, the law: “Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.”

45. An example of an extreme case was The People (DPP) v WC [1994] 1 ILRM 321 where the accused pleaded guilty to a charge of raping his then girlfriend after a night of New Year’s Eve celebrations. They had what was described as a consensual and intimate encounter, however when the accused sought to have sexual intercourse with the complainant, she did not consent to this and was raped by the accused. Flood J stated that while it “would appear that in the immediate aftermath” of the event that “the accused was neither fully aware, nor appreciated, the wrong he had done”, he had admitted his guilt promptly thereafter and pleaded guilty to the charge of rape at his arraignment. In imposing a suspended sentence of nine years penal servitude on the accused, Flood J discussed the factors that a judge should take into account when sentencing in rape cases. It should be noted that this case occurred prior to the introduction of victim impact statements under s 5 of the Criminal Justice Act 1993, and the clarification of the fault element, emphasising its gravity, by the courts. On the facts of the case, the accused was younger than the complainant and was aged 17 at the time of the commission of the offence and had no previous convictions, Flood J stated that the evidence was that such conduct from the accused was “most unlikely to re-occur”. The accused was described as having admitted his guilt “[f]rom the earliest stages of this incident” and “accepted the serious harm that was caused by his conduct”, making a full written statement to gardaí expressing a “clear desire to plead guilty to any offence with which he might be charged”, writing a letter to the complainant admitting his guilt, and expressing “real remorse”.

46. It should be noted that Flood J’s sentence was not approved on appeal, since there then was no appeal against leniency. The fault element of the offence might warrant a lower than usual custodial sentence, but it is difficult to see how a wholly suspended sentence would be warranted since what was involved was a deliberate violation. Even in NY [2002] 4 IR 309, another case where fault was analysed as being at a low level, a suspended sentence was only allowed where the accused had spent 7 months in custody. Fault might be at a low level, but that must mean a low level in the context of an offence that is very serious because of what it involves and of the fault of the accused.

47. Thus, while a suspended sentence for rape is possible, since the Oireachtas has enabled it, any such approach should be considered in the context of the gravity of the offence and the effect on the victim as both being very rare and requiring an especial justification. An analysis of the decisions indicates that in two cases the Court of Appeal has corrected what originally were suspended sentences imposed by the Central Criminal Court. In The People (DPP) v Hustveit [2016] IECA 271, there was a conviction on one count of rape and one of sexual assault. The sexual violence happened while the victim was sleeping and in the context of a broken-down relationship. The original sentence of seven years suspended was corrected on appeal to 30 months with 15 months suspended. A wholly suspended sentence was wrong in principle but this was a case regarded as equivalent to a person surrendering to police where otherwise there would be no detection or prosecution. In The People (DPP) v Counihan [2015] IECA 59 and 76 an original sentence of 7 years suspended was corrected to a 10 year sentence on appeal with 7 years suspended; an effective sentence of 36 months. These were two counts of rape against a 13-year-old babysitter and the exceptional circumstances involved the care of two autistic children in the accused’s care with no prior offending and the accused using the gap between offending and charge to rehabilitate his life. These circumstances must be regarded as wholly exceptional but as not meriting a total suspension of a term of imprisonment. In The People (DPP) v JJK (Central Criminal Court, 22 October 2018) a man of 86, clearly very ill, was given a suspended sentence for rape offences. This is the only case which research can uncover that involved a wholly suspended sentence in the last two decades. It will be noted that the accused had in fact served a sentence, albeit for a similar offence on another victim.

Below the norm
48. In the WD case, at paragraphs 18 to 24, about a dozen rape cases were analysed where the penalty fell below the 4 years imprisonment mark. Several of these cases were characterised by the fact that the accused was a young teenager, and so this and other strong mitigating factors pushed the ultimate sentence downwards. Thus in The People (DPP) v JH, noted below, the appellant was aged 15 at the time of the offences. In The People (DPP) v Lukaszewicz [2019] IECA 65, the accused was 16 and the victim was 15 when the offence of rape was committed. This was a, regrettably, not untypical case of partying with inappropriate drinking and the victim being violated while sleeping. Advantage was taken of the victim, who felt unwell and went fast asleep after consuming vodka. She awoke in consequence of the offence taking place. The accused claimed consent. Essentially, an effective sentence of 3 years imprisonment with 2 years suspended resulted from the youth of the offender and the hope of him continuing to rehabilitate in third level education. The People (DPP) v Barry [2017] IECA 171 involved an appellant who was aged between 12 and 14 years at the time of the offences, 2 of rape and 2 of s 4 penetrative rape and 2 of sexual assault, who had only pleaded guilty after the jury had been sworn in for his trial. He had initially pleaded guilty to only the sexual assaults, all the offences taking place in the home of a relative. Here, youth and the fact that the accused suffered from a major depressive illness lowered the sentence below the norm, resulting in an effective sentence of 15 months; 5 years with 3 years and 9 months suspended. In The People (DPP) v MH [2014] IECA 18, the victim and the accused were cousins. There were 9 offences, 1 count of rape and 4 of s 4 rape and 4 of sexual assault. The series of crimes began when both were children, the victim 6 years old and the accused 12. This involved a pattern of escalation from play to touching and escalating to the offences. He pleaded guilty. Originally, the sentence was 9 years with 3 years suspended but this became 4 years effectively, since the court ordered imprisonment for 7 years while continuing the 3 year suspension. While the facts are not similar, the Court of Appeal identified a headline sentence of 8 years in The People (DPP) v JH [2017] IECA 206. This involved 2 counts of rape and 2 counts of sexual assault on an 11-year-old girl. This occurred in the context of games that were turned by the accused into sexual violence. The accused was 15 years old when he committed the offences and the ultimate sentence of 18 months with 6 months suspended was reasoned out on the basis of the accused’s lack of maturity, despite the accused contesting the trial. While the report has the Court of Appeal changing the headline sentence to 2 years and 6 months because of the mitigating factors, the appropriate course is to consider the gravity of the original offence and to then discount, if appropriate, for mitigation.

49. Similar to this was an earlier case. In The People (The Director of Public Prosecutions v O’D [2000] 4 IR. 361, the accused pleaded guilty to several counts of sexual assault on his two sisters between two and three decades earlier. The accused was himself the victim of childhood abuse. Both victims pleaded for leniency. There were 2 counts of rape and 2 of s 4 rape to which he had pleaded guilty. A 5 year sentence with 4 years suspended was varied on appeal so that the accused was released.

50. In The People (DPP) v PH [2007] IEHC 335 the issue was sentencing older men for sexual offences reported after a gap of decades. This case was of a pattern with People (DPP) v Counihan [2015] IECA 59 and 76. It matters that in the interval between the crime and reporting, the accused has led a life of benefit to the community. While wider considerations of family and society can tend to suggest a lenient sentence, an appeal by victims for a suspended or lenient sentence cannot be definitive. A crime is an attack on particular victims but it also involves an attack on society in general. Where crime victims are able to show forgiveness or are able to maintain an offender as part of an extended family, that may help in the rehabilitation of the offender. If the victim had been badly traumatised by a crime, the precedents show that a sentence should take this into account too.

51. This pattern indicates that what was stated at paragraph 26 of the WD case remains correct as regards lenient sentences:

This analysis also indicates that there is no reported case of the Court of Criminal Appeal ever indicating that it was wrong to have imposed a custodial sentence in the case of rape. At the most, the Court of Criminal Appeal has suspended the balance of a sentence after some time has been served in imprisonment, and then only in the most extraordinary circumstances.

Ordinary headline sentence
52. While precise numerical certainty is not possible in this exercise, the precedents in sentencing clearly establish that conviction for rape ordinarily merits a substantial sentence and, further, that consideration should commence in terms of mitigation at a headline sentence of 7 years. These cases of their nature will be ones where coercion or force or other aggravating circumstances were not at a level that would require a more serious sentence.

53. Thus in The People (DPP) v TE [2015] IECA 218, the accused inveigled a person from abroad into his car on a pretext of having cleaning work to offer. She had come here to improve her command of English. She was brought to a house and only there did she realise that the accused would rape her. She submitted, on her testimony as accepted by the jury, because of the intimidating situation and because of his physical bulk. Hence, she was afraid. Despite him running a defence of consent, the jury convicted the accused. The sentence was 7 years and 6 months but mitigation was reflected in 3 years and 6 months being suspended. In the course of things, mitigation factors will vary from case to case but great care should be exercised so that the original fault is not overlooked as would be the harm to the victim. Instead, that harm should be appropriately marked. A sentence of 8 years was imposed in The People (DPP) v TV [2016] IECA 320 where rape occurred after a night of drinking. As can happen, an evening in clubs continued in a private home where the victim fell asleep, awakening to find the accused touching her and penetrating her. Here, a more serious factor was the lack of sexual experience of intercourse by the victim in her 20s. Despite a claim of consent, the jury convicted. In The People (DPP) v PG [2017] IECA 42, the accused was convicted of a count of rape. The victim awoke to find the find the accused penetrating her as she lay asleep with a young child beside her, and assumed he was her husband. As it turned out, it was her uncle, and he was sentenced to 8 years with 1 year suspended.

54. Some circumstances will bring the headline sentence above the range of in or around 7 years. In The People (DPP) v ED [2018] IECA 200, the appellant was found guilty of one count of rape. He had forced entry into her flat, forcibly removed her from her residence and raped her in the street. Since there was an escalated form of violence and a violation of the home, a more serious approach was warranted. The court noted mitigating and aggravating factors. The latter being a prior conviction for assault causing harm on his former domestic partner and the former being a very difficult childhood and having two children. The accused was sentenced to 10 years. In The People (DPP) v Stafford [2008] IECCA 15, a prostitute was held against her will, threatened and raped. There, while there were found to be genuine efforts at rehabilitation, arguments based on drinking and substance abuse could not substantially lessen the accused’s culpability notwithstanding a plea of guilty. The sentence was of 9 years imprisonment.

55. The pattern that emerges accords with the original analysis in The People (DPP) v WD [2008] 1 IR 308. There, 42 cases were considered as precedent in the range from 3 years to 8 years, with the majority concluding with sentences of 5 to 7 years. Variability occurred not only by reason of the accused pleading guilty, as opposed to being convicted after the victim was required to recount sexual violence in testimony, but also because of the inherent, but in this category, relatively small, differences in gravity. The large majority of the cases analysed in that judgment involved the offender admitting the offence. Hence, the headline sentence can be seen to be in the order of one quarter to one third, depending on the circumstances, more than the ultimate sentence publicly reported. Further, while the original analysis was conducted from such unreported judgments as were available and from newspaper reports, the updated analysis in ‘The WD Case & Beyond’ derived from either reported judgments on www.beta.courts.ie or the researchers actually listened to an audio recording, on the courts’ Digital Audio Recording system, of the hearing. What emerges is that a consistent pattern in rape sentencing has been maintained over the last decade, and remains as noted at paragraph 36 of WD:

The reports tend to indicate that where a perpetrator pleads guilty to rape in circumstances which involve no additional gratuitous humiliation or violence beyond those ordinarily involved in the offence, the sentence tends towards being one of five years imprisonment. The substantial mitigating factor of a guilty plea, present in such a case, suggests that such cases will attract around six to seven years imprisonment where the factors of early admission and remorse coupled with the early entry of a plea of guilty, are absent.

56. It is to be noted that many of the cases included in the analysis ‘The WD Case & Beyond’ also involve the kind of situation with which the courts are unfortunately familiar of the abuse of children or of multiple counts, perhaps over years. These tend to be more difficult to properly analyse and also are cases where the totality principle comes into play. These are considered in the more serious categories analysed below.

More serious cases
57. There is a category of rape cases which merit a headline sentence of 10 to 15 years imprisonment. What characterises these cases is a more than usual level of degradation of the victim or the use of violence or intimidation beyond that associated with the offence, or the abuse of trust. The Stafford case, would be at the margin of this category.

58. An example is The People (DPP) v Hearn [2019] IECA 137. The appellant pleaded guilty to rape, s 4 rape, false imprisonment, and sexual assault. The victim was volunteering at a convention in a hotel. Whilst setting up for the event the appellant locked the victim into the room, threw her on the grown, tied up her hands, removed her clothes, threatened her with having a knife in his bag, and raped her and only stopped when a third party managed to enter the room and tackle the appellant. The offender suffered from psychiatric disorders, including autism and bipolar disorder. This enabled mitigation of 3 years but the headline sentence was set at 15 years imprisonment. Similar to this is The People (DPP) v Keogh [2017] IECA 210 where the appellant had pleaded not guilty and was convicted of 2 counts of rape, 2 counts of s 4 rape and 1 count of assault causing harm. There, the offender had invited the victim back to his house to do some painting in exchange for money. He dragged her upstairs, raped her, manhandled her across to the bathroom where he showered her, and then raped her again before returning her to the shower. The Court of Appeal acknowledged that the 13 year sentence was significant. However, it was satisfied that this was a case which warranted a significant and severe sentence. The ED case was quite similar but this one involved heightened violence. Another such case was The People (DPP) v MK [2016] IECA 260 where the victim was the accused’s sister who had called to help tidy his residence. There was no plea of guilty and a piece of broken glass was used as a threat. His appeal of a sentence of 12 years was dismissed. The People (DPP) v O’R [2016] IESC is another example. While the appeal was not on sentence, but the mental element in rape, the accused raped his mother after she blacked out and the sentencing court had imposed 12 years and 6 months.

59. Some of these cases may be a sequence of offences. For example in The People (DPP) v BV [2018] IECA 253, the appellant was convicted of 1 count of rape, 1 count of s 4 rape and 27 counts of sexual assault. The victim was the appellant’s stepdaughter, and the offences took place when the victim was between the ages of 10 and 16. The abuse, which culminated in the rape, was progressive and frequent and took place in the family home. The sentencing judge indicated that the offences should be placed at the highest point of the medium scale, or the lowest end of the highest scale. There was no plea of guilty, no expression of remorse nor any effort at rehabilitation. The headline sentence was 14 years, reduced to 12. However, the Court of Appeal thought that the starting sentence was out of line with sentences in comparable cases. There was only one instance of rape and the assaults did not occur again after that offence. Thus the Court of Appeal substituted the starting sentence to 12, to be reduced to 10 years. Another such case was The People (DPP) v FR [2018] IECA 259 where the appellant, granduncle of the victims and living with them, had been convicted of counts of rape and sexual assault against 2 girls who were children and had pleaded guilty to 3 counts of sexual assault relating to the first victim. At trial, the appellant was convicted of 2 counts of rape of the first victim and 3 counts of sexual assault of the second victim. His appeal of a 10 year sentence was dismissed notwithstanding his illiteracy and troubled childhood. In The People (DPP) v PS [2009] IECCA there had been a plea to 11 sample counts, 2 of rape. This attracted a 15 year sentence and 2 years and 6 months were suspended but a 10 year post release order of supervision was made. Another series of cases was involved in The People (DPP) v O’Brien [2015] IECA 1, where the accused was old, had ill-health but had abused his daughter over a 9 year timeframe from when she was 7 until she was 16. He pleaded guilty and had no convictions prior. On appeal, the sentence was 12 years with 3 years suspended. In The People (DPP) v FG [2018] IECA 32, the series of 15 counts of rape and 5 of sexual assault were committed against the daughter of a neighbour. These were repeated offences and gross circumstances. The Court of Appeal regarded the original sentence on a plea of guilty of 8 years to be wrong. Despite a troubled childhood, the grave and gratuitous nature of the crimes required the sentence to be doubled. Overall, the sentence became 14 years. The People (DPP) v MAF [2016] IECA 14 involved another series of offences where the accused was in a relationship with the victims’ mother but exploited her two daughters from the ages of 8 and 11 years. There the original sentence of 15 years, 3 suspended, was reduced to effectively 10 years by suspending 3 out of 13. The mitigation involved the accused being dysfunctional psychologically, indeed he had been convicted of terrorist offences before.

60. Another such case was The People (DPP) v RK [2016] IECA 208, involving a s 4 rape and sexual assault on a girl from age 6 to when she was 9. The guilty plea caused a re-evaluation of the sentence from 18 years, with 5 suspended, to 12 years with 2 suspended.

61. In the original WD case, the High Court had examined about a dozen cases in the 9 to 14 year category. A consistent pattern has been maintained since then. At paragraph 40 this comment was made: “Leaving aside these factors of multiple counts, a number of victims and abuse of trust, there are clearly cases where a sentence of ten years imprisonment can be appropriate for an individual instance of rape. However, a sentence of ten or eleven years imprisonment appears to be unusual, even after a plea of not guilty to rape, unless there are circumstances of unusual violence or pre-meditation.” Examples were given which more recent analysis confirms. At the upper end of this band, thus in or around 14 years, are those cases where, as paragraph 41 states, the “degree to which the perpetrator chooses to violate and humiliate the victim can bring the appropriate sentence into the upper end of the band of nine to fourteen years.”

62. There are many more cases in this category but it is not helpful, in an exercise such as this, to cite every one. It remains the situation, on the run of precedents since the WD analysis, that a series of offences is not an ordinary rape and, on the headline sentence, is not to be punished as if such offences were in that lower band of seriousness. Where there is unusual violence or humiliation or cynical planning, the ordinary category of rape cases is passed and consideration of this higher band should be where the sentencing court starts.

Cases requiring up to life imprisonment
63. On a consideration of recent cases, the comment made at paragraph 49 of the WD case is shown to continue to accord with recent practice:

Reading the reports of these cases indicates that a number of factors are regarded by the courts as aggravating the offence of rape. The courts have placed particular emphasis on the harm that rape does to the victim and where there is a special violence, more than usual humiliation, or where the victim is subjected to additional and gratuitous sexual perversions, these will have a serious effect on the eventual sentence. Abusing a position of trust, as with a person in authority, misusing a dominant position within a family, tricking a victim into a position of vulnerability or abusing a disparity in ages as between perpetrator or victims also emerge as aggravating factors. Abusing a particularly young or vulnerable victim increases the already serious nature of the offence of rape. Coldly engaging in a campaign of rape, shows a particularly remorseless attitude which is not necessarily mitigated by later claims of repentance. Participating in a gang rape involves a terrifying experience for the victim and using death threats and implements of violence for the purpose of wielding authority or sexual perversion are also serious aggravating factors. Attacking the very young or the very old also emerges as an important aggravating factor from these cases.

64. Regrettably, there continue to be very serious examples. These also illustrate how a crime can be an event over time, and how several separate offences should not be isolated from each other but inform the seriousness of the overall circumstances. Two older examples indicate the kind of circumstances which attract headline sentences between 15 years and life imprisonment. The earliest that continues to be relevant is The People (Director of Public Prosecutions) v. Tiernan [1988] 1 IR 250. There, a young man and woman were in the back of a car and intimate. Three men came upon them and attacked the couple. The car was driven to a more solitary place and the boyfriend was shut up in the boot. She was subjected to a vicious rape by two of the men and subjected to sexual assaults.

There was a plea of guilty. Neylon J imposed 21 years. While he did not state a headline sentence, allowing for the plea and whatever ordinary mitigation might be involved, that might be calculated at around 25 years. The Court of Criminal Appeal reduced the 21 year sentence to 17 years in order to hold out the prospect of rehabilitation. A similar case was The People (Director of Public Prosecutions) v Barry, (Unreported, Court of Criminal Appeal, 16th October, 2006, trial finishing on 28 June 2005). This was another courting couple apparently discovered in a car in an isolated location. Once again, the young man was locked in the boot. The accused Barry had thirty six previous convictions and the men were armed. The charges to which he pleaded guilty included rape, assault causing harm, the false imprisonment of two persons, and theft. This was not a case where there could have been much mitigation. Upholding a 20 year prison term, Kearns J stated:

From the victim impact reports it is quite clear that the victims of this crime will never get over what happened to them and it is difficult to see hw such barbaric behaviour could do anything other than leave an indelible imprint on the victims of those crimes who have to live for the rest of their lives with the memory of how they were so humiliated, so frightened and so horribly treated on the night in question. The court has to bear those circumstances in mind when dealing with this case.

65. Clearly, these kinds of offences can be a series. An example of where a life sentence was upheld by the Court of Criminal Appeal is The People (Director of Public Prosecutions) v. John Adams, (Unreported, Court of Criminal Appeal, 21 December, 2004). The trial court, Carney J, had described the offences as constituting “one of the gravest cases to come before the courts in recent times”. At a late stage, pre-trial, the accused pleaded guilty to 6 counts of unlawful carnal knowledge in relation to two victims, and 2 counts of sexual assault on a third victim. The appellant was described as having “a history of sexual offending of a quite alarming type”. Under the pretext of friendship with their family he planned the abuse of young pre-teen girls. His planning involved photography of intercourse. Kearns J upheld a life sentence in the Court of Criminal Appeal, stating:

Here there is a significant and extremely alarming history of sexual offences. Three incredibly young lives were damaged in a very significant way by what happened and the plea of guilty, when it came, came only some seven years down the road, when eventually this matter came before Carney J. in the Central Criminal Court on 28th July, 2003… We would also take the view that a life sentence should only be imposed in these sort of cases in exceptional circumstances, but the factors to which I have adverted and the previous history of the accused and the modus operandi of deceiving and gradually embroiling these young girls in systematic and depraved abuse shows that there are quite exceptional circumstances operating in this case. We are conscious of the age of the appellant but it does not seem to us that we can rule out the possibility that, insofar as any determinate sentence is concerned, that at least for the foreseeable future, that the risk of re-offending might not be present having regard to the past history. … The taking of the photographs has to be seen as an aggravating feature and it is distressing for the court to note … the humiliation and degradation to which [these young children] were subjected.

66. Another case of planning was the original sentencing bands judgment in the English case R v Billam [1986] 1 WLR 349, where the offender embarked on a plan of raping women and thus represented more than the ordinary danger. There the Court of Criminal Appeal indicated that a sentence of 15 years or more may be appropriate. There was a similar case in this jurisdiction, The People (Director of Public Prosecutions) v. King (Unreported, Court of Criminal Appeal, 7th April, 2005), where a plea of insanity failed and a life sentence was imposed and upheld by the Court of Criminal Appeal. The accused had said that he was “empowered by God” to rape not only this victim but all “bad women”.

67. Other cases illustrate that gang rape need not be involved to move sentencing into this highest band. It just may be that the circumstances are really bad. One such case, involving planning, was The People (DPP) v Piotrowski [2014] IECCA 41 where the accused was the former boyfriend of the victim. Acting out of jealousy at a new relationship, he disguised himself, incompetently, planned an attack of a grossly humiliating kind, carried it out and then, pleading not guilty to various forms of rape, would only accept at trial that he had tied up the new boyfriend and assaulted the victim physically. He burst into the house of the couple armed with a knife, overcame the new boyfriend in his sleep using some kind of self-defence spray, trussed him up in a professional way, and proceeded to penetrate the victim in front of him. He then moved to another room, dragging the victim with him, uttering savage threats, and raped her there. With considerable emotional intelligence, the victim persuaded him to leave, promising not to report him. The trial judge set the headline sentences for the rapes at life imprisonment and on appeal, the ultimate sentence was fixed at 18 years with mitigation taken into account. Since he was a Polish national, it was a factor that he expressed the wish to return to his country of origin. This would be facilitated with a determinate sentence under the Transfer of Sentenced Persons Act 1995. In The People (DPP) v O’Neill [2015] IECA 327, the victims, aged 9 and 6, were lured from a playground into the accused’s flat. A life sentence was upheld. Other egregious cases were: The People (DPP) v Anon (2 May 2016, Central Criminal Court), a life sentence for a rape and humiliation of the accused’s girlfriend and then her mother in gross circumstances; The People (DPP) v O’Brien (12 December 2016, Central Criminal Court), the rape of a grandmother having lured her into a caravan, 15 years; The People (DPP) v Kelly (29 July 2011, Central Criminal Court), a sentence of 15 years for the accused raping his aunt in her home with clear breach of trust and using a knife; The People (DPP) v Murray (20 October 2013, Central Criminal Court), a sentence of 15 years on conviction for 2 rapes and other sexual violence with threats to kill the victim’s young son and where the judge could not find any mitigation; and The People (DPP) v Power [2009] IECCA, a life sentence on a late plea of guilty where the facts of two extremely serious sexual assault convictions in the toilet of a fast-food chain led the Court of Criminal Appeal to state that life sentences do not have to be reserved for the worst imaginable cases.

68. Many such sentences in the uppermost band were for a series of offences. In The People (DPP) v McCarton [2010] IECCA 50 the accused pleaded guilty to two attacks on different women in their own homes. He received 20 years with 2 suspended. Clearly, a planned series of offences aggravates the circumstances. As in the WD case, many sentences for a series of offences involve the exploitation of children over time. One such was The People (DPP) v EC [2016] IECA 150 where there were dozens of guilty findings for rape, oral rape and sexual assault over a five year timescale. The victims were the accused’s three daughters and a life sentence was upheld. A sentence of 20 years was upheld in The People (DPP) v Farrell [2010] IECAA 68 which consisted of more than thirty offences against three young victims. Another life sentence was The People (DPP) v R McC [2008] IR 92 upheld for a series of offences against the accused’s daughters and nieces. Use of the victims for child pornography aggravates a sentence; as in The People (DPP) v Anon (Central Criminal Court, 12 December 2016) where the sentence was 20 years and the victim was the accused’s son, who was disabled, but was used for thousands of obscene photographs. In The People (DPP) v Anon (Central Criminal Court, 8 December 2011) the accused’s four daughters were raped and otherwise abused over a span of 18 years. The plea of guilty was entered on the empanelment of the jury. A life sentence was imposed.

Admission as mitigation
69. These cases illustrate that despite a plea of guilty at an early stage, the normal mitigating effect of relieving the victims of being part of a trial may not be enough to reduce the sentence from life imprisonment. These cases are exceptional. A common factor in mitigating offences of rape and serious sexual assault is an early admission of guilt. But this depends on the circumstances. An early admission of guilt may be evidence of a contrite approach to wrongdoing. The later that admission comes, on arraignment, on the day of the trial, or during the trial and after the cross-examination of the victim of the offence, the less effect it ought to have on a sentence. Where an offender is very young, is mentally ill or has been subjected to sexual indignities which leave him with a disorder, these factors can be taken into account while bearing in mind that the purpose of the criminal law is to protect the community through the rehabilitation and punishment of offenders. It is not proposed to attempt to set out a series of indications of what can be mitigation. In the 1996 Law Reform Commission consultation paper on Sentencing, from para. 5.51, several general mitigating factors are set out. But not all such factors are applicable to every offence. How would provocation, for instance, ever fit with an offence of sexual violence since the factor which makes sexual intercourse lawful is consent? Thus, it would be wrong to ever consider that kissing a man, wearing revealing clothing, taking a lift in a car, or accepting an invitation to a flat for refreshments are invitations to rape. They cannot be. The entitlement of a woman to refuse to consent to any or all sexual contact is absolute since her bodily and mental autonomy are fully protected by the definition of the offence of rape and kindred offences. Although the Law Reform Commission have usefully set out mitigating factors, what has been seen as relevant in rape cases includes voluntary attempts to alleviate the effects of the crime, where an offender is very young or very old, or where the offender had reduced mental capacity. Finally, of course the offender’s background and previous convictions have to be taken into account as well as the foregoing factors in aggravation of sentence or in mitigation of guilt.

Ruling in this case
70. On the authorities, there were a number of separate events in this series of crimes. The threats in the kitchen on 25 May 2014 led to the rape and informed the circumstances of this sexual violence. The threats with the knife and rape incident only ended when the victim left the house the next morning. Aggravating that rape offence is the threat of violence, the domestic domination overnight and the presence of a small child nearby and the breach of matrimonial trust. The Court of Appeal was wrong in considering the rape alone and the prior offence of threat alone. The subsequent threats were separate. The violent attack on 6 August can give rise to a consecutive sentence as can the threats after the rape, but the totality principle should be observed as to the justice and rehabilitative effect of the overall sentence.

Remaining issue
71. The Court has agreed to hear final submissions subsequent to this judgment; which hereby clarifies the law and the relevant sentencing precedents. The sentence will be finalised and approved when the final decision as to sentence is come to upon hearing those submissions.

 

People (DPP) v Conroy

[2018] IECA 350
JUDGMENT (Ex tempore) of the Court delivered on 30th October 2018 by Birmingham P.
1. This is an appeal against severity of sentence.

2. The sentence under appeal is one of four years imprisonment with the final 12 months suspended that was imposed on 24th November 2017 in the Dublin Circuit Criminal Court in respect of the offence of defilement of a child under 15 years of age contrary to s. 2 of the Criminal Law (Sexual Offences) Act 2006. The maximum sentence for the offence is life imprisonment and that maximum sentence is to be contrasted with the maximum of 5 years imprisonment for an offence contrary to s. 3 of the Act, that is the offence committed when the child is aged between 15 years and 17 years.

3. The background to the case is to be found in events that occurred on 17th July 2015. On that occasion, the injured party, who was born on 13th November 2000 and so was 14 and a half years at the time, was attending a teenage disco in south Dublin with a few of her friends. Prior to the disco, she consumed a quantity of vodka and coca cola, but once inside the disco, the drink hit her very badly and she ended up sitting on the floor.

4. The original intention had been that the complainant would overnight with a friend, but feeling unwell, she had a change of mind. She did not want to see her mother or be seen by her mother in the state that she was in and so she decided to text the appellant. The injured party and the appellant had never met previously, but they had been friends on Facebook as they had friends in common. It appears the injured party decided to contact the appellant by text because he was the only person she knew that had a car. The appellant’s date of birth was in July 1996 so he had turned 19 some days earlier.

5. The appellant collected the injured party at a garage located near the disco and they drove around for a while before stopping. He took the injured party’s head and put it down into his lap. His trousers and boxer shorts were down and he got her to suck his penis. The injured party felt herself getting sick and pulled away from the appellant’s lap. Having felt nauseous, she vomited. The appellant took her right hand, placed it on his penis, and with his hand moved her hand up and down. They subsequently drove off, they went to a McDonald’s drive-through where they got some food and the injured party was then dropped off near her home. When the injured party got home, she was visibly distressed. She was unable to sleep and she was found crying by her sister she and told her sister what had happened. The following day, she went to her local Garda station and made a complaint.

6. The appellant was arrested some three days later, and when detained, made admissions. He was cooperative with investigating Gardaí, bringing them to various locations relevant to the incident. In the intervening period, between the date of the disco and the date of his arrest, he had sent a text to the complainant apologising for his behaviour.

7. In terms of the appellant’s background and personal circumstances, as indicated, he had just turned 19 years of age at the time of the offence. He had left school aged 14 years and he describes how he had been held back for two years while at school. Having left school, he had worked sporadically, washing cars at a number of venues. The Court heard that he had lost his mother to stroke when he was aged just four years and that, thereafter, he had struggled badly in the educational system. He had a Special Needs Assistant at all stages whom he referred to as a help teacher. The investigating Garda agreed with defence Counsel that the appellant presented as quite a naive individual. The appellant had a speech defect and those speech difficulties developed after the death of his mother. The Court heard that in the aftermath of these events, he had attempted suicide, and one such attempt was prevented by his brother. This occurred approximately one month after the offence.

8. An eloquent and powerful victim impact report was presented to the Court on behalf of the complainant. Dealing with it in the course of her sentencing remarks, the Circuit Court Judge pointed out that the victim impact report conveyed the pain, isolation and emotional turmoil that the complainant had suffered and her loss of trust and her efforts to cope with what occurred. The Judge commented that it was no exaggeration to say that the complainant’s recovery will be a lengthy and difficult one.

9. Defence Counsel, at the sentence hearing, urged the Judge to impose a non-custodial sentence, or at the very least, to consider that as an option. The Judge put the matter back for some period to consider the situation. When the Judge came to pass sentence, she commented that it followed as a matter of logic that the age of a child is a core consideration in assessing where on the scale of seriousness the particular offence lies. The Judge pointed out that the complainant was approaching the upper age limit for an offence under s. 2 as she was 14 and a half years, and that if age was the only consideration, then the offence would fall within the lower end of the scale for a s. 2(1) offence. However, the Judge said that she felt that age was not the only consideration and that there were several aggravating factors present, identifying in particular the fact that the injured party was manifestly intoxicated and unwell from the time that she got into the car, that the injured party was entirely dependent on the accused to get her home and that there was a significant age differential between the parties. The Judge said that the accused took advantage of these factors for his own sexual gratification. The Judge commented that the offence had been described as an opportunistic one, which, she said, undoubtedly it was, but said that she did not regard opportunism as a mitigating factor, adding “quite the contrary”.

10. In the course of this appeal, the Judge is criticised for regarding opportunism as an aggravating factor. The Judge also said that she also regarded the extreme intimacy of the sexual act involved as a further aggravating factor and also had regard to the severe and lasting impact of the offence on the victim. Again, in the course of the appeal hearing, the Judge is criticised for her reference to the intimacy of the sexual act involved. Counsel for the appellant says that the conduct prohibited by the legislation is all intimate and that the Judge was in error in regarding intimacy as an aggravating factor. The Judge observed that the combined effect of the factors that she identified moved the offence towards the middle of the range in terms of severity. She then identified six years as the headline or starting or pre-mitigation figure, reduced that to four years by reason of the appellant’s plea, his previous good character, he had no previous convictions, his admissions and cooperation with the investigation, his remorse, the difficult circumstances of his upbringing, his intellectual limitations and the fact that there was a supportive family. By reference to these factors, she reduced the sentence from six years to four years and then suspended 12 months of this sentence, referring at that stage to the appellant’s age at the time of the offence and immaturity. The DPP says that the starting or headline sentence of six years was an appropriate one and that the reduction therefrom was appropriate, indeed, generous. Indeed, the Director says that on one view, the decision to suspend one year of the sentence could be seen as double discounting.

11. This Court agrees with the Circuit Court Judge that this was a case where there were aggravating factors present. In particular, the fact that the injured party was obviously inebriated and obviously unwell has to be the cause of very serious concern. We agree with the Judge that the factors that were present meant that it was not possible to regard this offence as falling within the low range of section 2(1).

12. However, in a situation where the injured party was close to her 15th birthday, at which stage the maximum sentence available would have been reduced from life to five years, we believe that the Judge would have been wise to take a starting or pre-mitigation sentence of not more than five years, and indeed, might have chosen a pre-mitigation sentence as low as four years.

13. As the Judge correctly identified, there were significant mitigating factors present. There was the apology by text, the admissions and cooperation with the Gardaí, there was the plea, there was the fact that there were no previous convictions and that he was a young man who had never been in any kind of trouble before. There were clear indications of deep remorse and, again, there were a number of factors in his background which merited consideration. The fact that he had left school aged 14 years. This Court sometimes finds itself dealing with early school leavers when the decision to leave school early is taken against a background of disciplinary issues and where often the school leaver is out of control. But here, the decision seems linked to learning difficulties. Dr. Lambe, in the course of his psychologist’s reports, quotes the appellant as saying that he found the work at secondary school “impossible”. Dr. Lambe notes that the appellant’s intellectual abilities would be greater than about 7% of same aged peers.

14. The Court has indicated that despite the very obvious care with which the Circuit Court Judge approached sentencing, that the identification of a pre-mitigation sentence of six years was too high and amounted to an error. The Court will, therefore, intervene and will do so by nominating a pre-mitigation sentence of four years and will then reduce that pre-mitigation sentence to two years to take account of the mitigating factors present to which reference has been made. The sentence will, of course, date from the same day as in the Circuit Court. The Court will hear Counsel on both sides about the desirability or need for post-release supervision. The Court wants to confirm that in resentencing, that in accordance with the established jurisprudence of the Court, it is doing so as of today’s date. In deciding on the sentence, we have regard to updated material that has been made available to us which comprises very positive reports from the Governor, from the educational service in Arbour Hill and from the Chaplain. The Governor, for example, refers to the appellant as a model prisoner and refers to his constructive work with both the educational service in seeking out employment within the prison. The Chaplain comments that since the appellant’s arrival in Arbour Hill, that he has settled in very well and that he was trying to get involved in all the activities on offer. The Chaplain refers to the appellant’s work in the print shop, the fact that he attends school regularly, that he gets on well with staff and fellow prisoners and presents no disciplinary problems and refers to the wonderful family support that he has which was helping him to get through his sentence and motivating him to use his time in prison well.

15. In summary, the Court will quash the sentence of the Circuit Court and will impose a sentence of two years imprisonment to date from the same day as the Circuit Court.

 

The People v Tiernan

[1989] ILRM 149; [1988] IR 250

 

Finlay C.J.
13th May 1988

This is an appeal brought to the Supreme Court by the appellant against the decision of the Court of Criminal Appeal, delivered on the 13th January, 1986, dismissing his application for leave to appeal against a sentence of twenty-one years’ penal servitude imposed on him for rape. It is brought pursuant to a certificate issued by the Attorney General on the 9th March, 1987, pursuant to s. 29 of the Courts of Justice Act, 1924. The grounds upon which the Attorney General certified that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court, were that it involved the guidelines which the courts should apply in relation to sentences for the crime of rape. The grounds of appeal are as follows:
“(a) that the learned trial judge erred in principle in imposing a sentence which was far in excess of any sentence which had heretofore been imposed for the crime of rape or, indeed, any crime except perhaps one incident of kidnapping and false imprisonment,
(b) that the learned trial judge erred in principle in imposing a sentence which was far in excess of the conventional period a person might expect to serve who was sentenced to life imprisonment,
(c) that while the crime of rape was heinous, the Court should have regard to degrees of seriousness, and that this crime lacked any element of premeditation,
(d) that the learned trial judge did not have sufficient regard to the fact that the accused made a statement admitting his guilt in pleading guilty, and
(e) that the learned trial judge did not have sufficient regard to the need that the accused should some day be rehabilitated in society.”
Although the certificate of the Attorney General states that the point of law he certified was the guidelines which the courts should apply in relation to sentences for the crime of rape, having regard to its appellate jurisdiction this Court dealt only with the issues arising under the grounds of appeal submitted in this individual case and did not receive submissions nor reach any decision with regard to questions which might be applicable to cases of rape which had different facts and circumstances surrounding them. As counsel for the Director of Public Prosecutions submitted, the certificate must be read as stating the point of law to be whether on the application of the correct principles this sentence was appropriate.
Many of the considerations, however, which arise for determination on this appeal will hopefully be of assistance to judges having responsibility to decide on sentences appropriate on convictions for rape.
The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In Attorney General v. Conroy [1965] I.R. 411 this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence.
The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration.
In addition to those damaging consequences, rape can distort the victim’s approach to her own sexuality. In many instances, rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease and the possibility of a pregnancy and of a birth, whose innocent issue could inspire a distress and even a loathing utterly alien to motherhood.
Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.
All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment.
Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.
The facts of this case
Unfortunately, the facts of the rape to which this appellant pleaded guilty contain very many aggravating circumstances. They are:
(1) It was a gang rape, having been carried out by three men.
(2) The victim was raped on more than one occasion.
(3) The rape was accompanied by acts of sexual perversion.
(4) Violence was used on the victim in addition to the sexual acts committed against her.
(5) The rape was performed by an act of abduction in that the victim was forcibly removed from a car where she was in company with her boyfriend, and her boyfriend was imprisoned by being forcibly detained in the boot of the car so as to prevent him assisting her in defending herself.
(6) It was established that as a consequence of the psychiatric trauma involved in the rape the victim suffered from a serious nervous disorder which lasted for at least six months and rendered her for that period unfit for work.
(7) The appellant had four previous convictions, being:
(a) for assault occasioning actual bodily harm,
(b) for aggravated burglary associated with a wounding,
(c) for gross indecency, and
(d) for burglary.
Of this criminal record, particularly relevant as an aggravating circumstance to a conviction for rape are the crimes involving violence and the crime involving indecency.
The above summary of the facts surrounding the crime in this case reveals that very many though not all of the most serious aggravating circumstances which can be attached to the crime of rape were present.
The submissions
In the course of the submissions the Court was referred to a number of decisions in the common law jurisdictions namely: R. v. Pui [1978] 2 N.Z.L.R. 193; The People (D.P.P.) v. Carmody [1988] I.L.R.M. 370; R. v. Billam [1986] 1 W.L.R. 349; R. v. McCue [1987] Crim. L.R. 345; R. v. Gibson [1987] Crim. L.R. 346; R. v. Birch [1988] Crim. L.R. 182; R. v. Sullivan [1988] Crim. L.R. 188; R. v. Pawa [1978] 2 N.Z.L.R. 190; R. v. Puru [1984] 2 N.Z.L.R. 248; The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 and R. v. Robert Shaw (1986) 3 Cr. App. R. 77.
In particular, stress was laid upon the decision in England of Lord Lane L.C.J. in R. v. Billam [1986] 1 W.L.R. 349, and in New Zealand by Woodhouse P. of the Court of Appeal in Wellington, in R. v. Puru [1984] 2 N.Z.L.R. 248.
It is necessary to emphasise that these decisions, while very helpful, were delivered in cases in which the structure and matters before the courts were wholly different from the instant appeal. Both the Criminal Division of the Court of Appeal in London, in R. v. Billam , and the Court of Appeal in New Zealand, in R. v. Puru , were dealing with cases where a number of different decisions were brought before them for review or consideration, and where evidence was submitted of overall patterns or tendencies in the imposition of sentences within their jurisdiction for rape. The specific purpose of this form of multiple appeal in the case of R. v. Billam was to seek from the Criminal Division of the Court of Appeal a broad statement on policy, almost amounting to a range or tariff of appropriate sentences for rape of different kinds.
Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.
I would, however, adopt with approval the general propositions that neither a victim’s previous sexual experience nor the fact that she could be considered to have exposed herself by imprudence to the danger of being raped could conceivably be considered as a mitigating circumstance in any rape.
The mitigating circumstances in rape are indeed limited.
It would appear to be suggested under ground (c) of the appeal in this case that the lack of an element of premeditation could be considered in some way to be a mitigating circumstance. It is a relevant circumstance, though one, in my view, of very limited importance, but is better described, in my opinion, as the absence of aggravating circumstance, rather than the existence of a mitigating circumstance.
The only single mitigating circumstance which arises in this case, I am satisfied, is the fact that when interviewed by the Garda Síochána the appellant immediately admitted his complicity in the crime and made a full statement. His attitude at that time was followed by a plea of guilty.
A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of offence, a mitigating circumstance.
I have no doubt, however, that in the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.
Such an admission of guilt may, depending upon the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a judge imposing sentence to have some expectation that if eventually restored to society, even after a lengthy sentence, the accused may possibly be rehabilitated into it.
The necessity for consideration of this possibility has been underlined by the Court of Criminal Appeal in The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351.
Conclusion
With regard to the individual grounds of the appeal submitted, I have come to the following conclusions.
(a) The fact that this sentence was in excess of sentences which have been recorded in respect of the crime of rape, even if satisfactorily established to the Court, is not, in my view, a ground by itself for varying the sentence. For over one hundred years the maximum sentence provided by statute for the crime of rape is penal servitude for life. It must, therefore, follow that the imposition of a sentence of twenty-one years could not of itself be considered wrong in principle.
(b) What is described in this ground as the conventional period a person who has been sentenced to life imprisonment might expect to serve is a matter of a policy pursued by the Executive at given times and subject to variation at the discretion of the Executive. It cannot, therefore, in my view, properly be taken into consideration by a court in imposing sentence.
(c) I have already indicated that insofar as this ground might be considered as an assertion that the lack of any element of premeditation was a mitigating circumstance, it would be incorrect, but if it is directed towards a suggestion that an element of premeditation is an aggravating circumstance which did not apply to this crime, I would accept that it is true.
(d) I have already dealt with the importance which, in my view, exists with regard to a statement admitting guilt and a plea of guilty made by a person charged with rape. I am satisfied that a consideration of the principles enunciated on this ground, coupled with the desirability of contemplating that the accused should some day be rehabilitated into society, mentioned at ground (e), lead to a conclusion that notwithstanding the extraordinarily serious nature of the crime of rape and notwithstanding the multiple aggravating circumstances which surrounded this particular rape, it is possible to conclude that the sentence of twenty-one years imposed in the Circuit Court and affirmed in the Court of Criminal Appeal did not have sufficient regard to the admission of guilt and the plea of guilty. I would have little hesitation in upholding a sentence of twenty-one years on the facts of this case had this appellant put the victim to a trial and to the ordeal of giving evidence. When he did not, under circumstances from which it is possible to infer that he might have had some chance of escaping conviction for want of identification on a trial, it seems to me that the sentence is excessive. I have already emphasised the importance to be attached in a rape case to an early admission of guilt followed by a plea of guilty.
In these circumstances I would allow this appeal on the basis that the appropriate sentence for the offence in this case is seventeen years’ penal servitude. I would therefore reduce the period of penal servitude from twenty-one years to seventeen years, the period having commenced on the 8th October, 1985.

Walsh J.
I agree.

Henchy J.
I agree.

Griffin J.
I agree.

McCarthy J.
The offence was horrific; I accept the submission of counsel for the Director that the only circumstance omitted from the record of the judge’s consideration was the admission of guilt and the subsequent plea of guilty. I do not accept that Neylon J. did not, in fact, take this into consideration. The address of counsel for the several accused is not on the transcript; it is inconceivable that reliance was not placed upon this factor; it is equally inconceivable that the trial judge, one of great experience and known to give significant value to such a plea of guilty, did not take it into account. Mr. O’Flaherty, on behalf of the appellant, had advanced the other considerations that there was no premeditation as in some other cases of rape, and that the trial judge did not take account of the need for rehabilitation, the opportunity for which would be lost after such a lengthy period of imprisonment. There was no evidence of premeditation; this fact may be regarded as ruling out a possible aggravating feature. As to rehabilitation, in my view when the minimum appropriate sentence has reached a certain level, it is difficult to incorporate an allowance for rehabilitation by way of residual lessening of the total period.
The Court has been referred to a number of decided cases which contain, within themselves, a litany of like offences and the varying sentences imposed in respect of them, in England and in New Zealand. Helpful though any legal principles to be gleaned from these cases are, the sentences themselves in a myriad of single instances are of no guidance. I accept the several propositions advanced by the Chief Justice and identified with those of Lord Lane L.C.J. in R. v. Billam [1986] 1 W.L.R. 349, and I recognise the need to give guidance to trial judges as to the matters to be taken into account when assessing the penalty appropriate in any given case. I do not subscribe to what is apparently the view in England and New Zealand that there should be any particular minimum standard; there is a maximum – penal servitude for life. The trial judge, subject to due consideration of the matters specified by the Chief Justice, and taking into account what further matter may properly appear to be relevant in the particular case, should have a true judicial discretion as to the sentence appropriate in any case.
For my part, I find no error in principle apparent in this appeal; it may well be said that if a sentence is the wrong sentence, then that is an error in principle. Without expressing any view on that question, I am content to say that the penalty imposed, albeit of a severity apparently unknown up to now for offences of this kind within this jurisdiction, is not inappropriate for what the trial judge rightly described as an abominable case.

The People v Byrne, sub nom Director of Public Prosecutions v Byrne

[1995] 1 ILRM 279
O’Flaherty J
This is an application brought on behalf of the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 to review the sentence passed upon the accused, Christopher Byrne, on 19 January 1994 by the Central Criminal Court presided over by the then President of the court, Hamilton P. The sentence was one of ten years’ penal servitude in respect of two counts of rape and a sentence of ten years’ imprisonment on one count of buggery contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. The sentences are to run concurrently. It is sought to say that these sentences are unduly lenient having regard to all the circumstances of the case, the victim impact reports submitted to the court, the medical report on the victims as well as the oral evidence in the case.

S. 2 of the Criminal Justice Act 1993, so far as is relevant provides:

(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the court may either

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.

The court requested counsel for the Director of Public Prosecutions to submit any fact or circumstances which it was alleged on behalf of the director was taken into consideration by the trial judge in imposing the sentences and which was not relevant to the case or to any fact or circumstances which the director could submit was relevant to the case and was not taken into consideration by the trial judge in imposing sentence. In response to that request a submission dated 7 October 1994 was furnished to the court, a copy being supplied to the accused. It is right to say that Mr Haugh SC and Mr O’Hagan arguing the case on behalf of the Director of Public Prosecutions essentially have followed that submission. The submission was as follows:

On 19 October 1993 the respondent affirmed signed pleas of guilty on a number of charges on which he had been sent forward to the Central Criminal Court for sentence, by the District Court. The first charge on which he affirmed his signed plea was that he did between midnight on 11/12 July 1994 and 4.40 a.m. on 12 July 1993 at certain licensed premises rape, who, for convenience and to preserve her anonymity, the first woman.

On 26 November 1993 the facts of the circumstances of that offence were outlined in evidence by Sergeant Leo McGinn to the learned President of the High Court. The offence occurred on the night of the burial of the first woman’s mother. The respondent broke into her house while she was asleep and took her from beside her sleeping husband to the sittingroom of the premises. He had what looked like a white stick in his hand and he was asking for money. After a brief period in the sittingroom the respondent, with his hand over her mouth, brought that woman to what is known as the bar section of the building. He took off her panties and left his stick on the ground and took a knife from his pocket. He then raped her. He then left. The woman then left to raise the alarm by making a phone call from a neighbour’s house and as she did so the respondent grabbed her again as she was crossing the road, put a headlock on her and again brought her back across the road and forced her into her house. He then made good his escape.

The second and third charges on which the accused affirmed his signed pleas of guilty related to the rape and buggery of the second woman in the small hours of the morning on 13 July 1993, some 24 hours after the first offence had occurred. This woman was at the time 77 years of age and a widow and she lived alone in a certain part of the country. Again evidence as to the circumstances of these offences was given by Sergeant McGinn on the same occasion. This woman had retired to bed at about 11.00 p.m. and she was woken by the respondent standing in her room. He asked her for money and for a video. The respondent lay on the bed beside her and began to fondle her breasts. He tore her night attire almost the complete length of the nightdress. He threatened her with a knife. He raped her. He then tied a cloth around her mouth and stuffed part of it into her mouth as well as tying her hands with a belt. He ordered her to lie face down and he again threatened her with a knife. He then buggered her. He hit her a number of blows in the facial area.

The respondent was arrested on 16 July 1993. Whilst detained under the provisions of s. 4 of the Criminal Justice Act 1984 he made confessions to the investigating gardaí. He signed pleas of guilty in the District Court and affirmed those written signed pleas in the Central Criminal Court.

The accused had a previous conviction in 1985 for indecent assault and the circumstances of that offence were also outlined by Sergeant McGinn to the learned President of the High Court on 26 November 1993.

It is not submitted on behalf of the applicant that the sentence of 10 years’ penal servitude in respect of the rape of the first woman was per se unduly lenient having regard to the mitigating factors as properly found by the learned President of the High Court.

It is however submitted on behalf of the applicant that the sentence of 10 years’ penal servitude for the rape of the second woman and the sentence of 10 years’ imprisonment for the rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 (hereinbefore referred to as the buggery charge) were unduly lenient in that all sentences imposed were to run concurrently so that in effect no additional penalty or sanction was imposed in relation to the offences committed against the said second woman. Further or in the alternative it is submitted that those sentences which relate to the offences against the second woman were unduly lenient, having regard to the accused’s previous offence against the first woman and it is submitted that the learned President of the High Court failed to take this aspect properly or adequately into account. It is submitted that the offence against the first woman and the offences against the second woman were totally separate and unconnected and it is accordingly submitted that because no additional sanction or penalty was imposed in relation to the offences against the second woman that those sentences were unduly lenient.

There were prepared victim impact reports in respect of both women by Dr Lyster, who is a consultant psychiatrist. What will be set forth is a brief summary of some of his findings in regard to each case.

To deal now with the first one. This report sets out that this unfortunate woman suffered sleep disturbance with nightmares, the nightmares being of a consistent pattern of being trapped somewhere, with men everywhere and no means of escape. She tends to wake up at the same time each night, approximately 3 a.m., the time at which the incident occurred, sweating and extremely anxious and frightened. She has been taking sleeping tablets since the incident but despite this continues to have disturbed sleep.

Depressed moods since this incident . She complains of feeling depressed and has mood swings. She has lost interest in herself and in life in general.

Anxiety since the incident . This woman has suffered severe anxiety and worries constantly that she will be attacked again. She feels very vulnerable and barricades the doors with a chair or table. She has become obsessed with having doors and windows locked. She has been unable to go out socially since this incident and tends to avoid meeting people. She is unable to relax, unable to get any enjoyment from life.

Personality problems since this incident . This woman has lost confidence in herself, become paranoid, and has guilt feelings over what happened, blaming herself for not being able to prevent the attack but realised that her fear was so intense at the time she was overwhelmed and was unable to think rationally.

Since this attack she has low self esteem and feels dirty and tends to avoid meeting people as a result. She only feels safe with people she knows. Since this incident she has a dislike for men in general except for old fatherly type men and avoids answering the door.

Affect on the family since the incident . This woman states that her relationship with her family has changed and in particular that her ten year old son has been clinging excessively to her and does not want to let her out of sight. In September 1993 this boy did not want to separate from his mother and go to school and became very upset.

Affect of relationship with husband . This woman states that since this assault her relationship with her husband has altered and that she is no longer able to be intimate with him, as close contact with him invokes painful memories of the assault.

Changes in social life since this incident . This woman will not go out alone and always brings a family member with her for support. Prior to this she drove the car regularly into town and did her own shopping etc. Since this incident she has not driven the car and goes by taxi. She tends to avoid meeting people she knows since the assault and has become somewhat paranoid believing they comment about her.

That is a summary of what the doctor found in relation to his examination of the first woman.

The victim impact report on the second woman sets out the history of the actual assault and then the doctor relates that immediately following the assault she felt very shocked and afraid, was shaking all over, her sleep was disrupted but she had no nightmares. At the time of the assault she thought she would be killed, she felt helpless and she thought the accused was going to stick a knife in her and was very frightened. She knew she had no way of saving herself and that if she shouted she would not be heard. She saw that he had a slip in his hand which she believed he would tie over her mouth if she shouted. He then relates the woman’s personal history, that she is a widow, her husband having died seven years before. He then relates that she was a very independent, active woman and did her own shopping, went into town once a week by bus and so forth. His summary in relation to this woman is that she had been severely traumatised but had made a remarkable recovery. She still continues to suffer residual effects of this trauma, being anxious, being fearful of further assaults. The fear is worse in the dark; there is a restriction of social life in consequence of the attack. She has headaches, forgetfulness and loss of confidence in herself. He concludes that the woman was severely traumatised during this incident and she is now suffering the consequences of this assault and is aware of her own vulnerability. She continues to have fears of a further assault and in his opinion this fear will remain with her for the foreseeable future.

One comes then to the statement of the accused. He made this statement immediately after his arrest and it can be summarised by saying that he made a full and frank confession of his involvement in both assaults.

Dr Art O’Connor, the psychiatrist, concluded that the accused had been in and out of prison since around 1987 and his longest sentence was for two years. He finished that sentence in February 1993 and was taken into custody again on the present charge on 16 July 1993. He has over the years abused drugs such as LSD, cannabis and various prescribed sedative drugs which he names. They are all sedative drugs similar to valium. The accused told Dr O’Connor that he did not know the women whom he had assaulted and that he was ‘out of his head’ because of alcohol and tablets. Dr O’Connor concluded that mental state examination reveals no evidence of serious psychiatric illness such as schizophrenia or depression. He is of normal intelligence. He is quiet but he is well able to discuss his problems and his situation. He is very unhappy about his present position and because of what he has done. His family are also quite upset but they seem to be supporting him. He is low in mood from time to time since he has come into prison but he is not suicidal.

Ms Rita McArdle, probation and welfare officer, in a report of 25 November 1993 concluded as follows:

Following assessment of the defendant and his circumstances, a picture emerges of an inadequate young man, with poor social skills and limited intellectual and personal resources. His life to date has been marked by school failure, illiteracy, an absence of any employment experience and an aimless, unstructured existence. These difficulties have been further compounded by chronic alcohol and drug abuse and criminal involvement. The only apparent positive feature in his life is his reported experience of a happy family life. While family members are presently extremely shocked and have not visited him to date in custody, one member states that continued family support will be available to him. He does not appear to have any insight into his behaviour but accepts his guilt in these very serious offences before the court. I believe in his present state he is at risk in the community. He is a man who will require extensive and long-term professional intervention and counselling, if any positive change is to be effected in his life.

The learned trial judge in sentencing the accused concluded that the charges were very serious charges. He went on to say:

I have heard the evidence with regard to the circumstances from the arresting guard and there is no dispute about them. I have had the benefit of reading the psychiatric report prepared by Dr Art O’Connor and in addition I have had the benefit of two reports, one in respect of each of the injured parties, from Dr Lyster, consultant psychiatrist. By virtue of the terms of s. 5 of the Criminal Justice Act 1993, the court is obliged in determining sentence in respect of the offences to which that section applies to take into account any effect whether long-term or otherwise of the offences in respect of whom the offences were committed. This is an obligation placed on the court and is in addition to the other matters which the court is obliged to take into account in determining sentence. These considerations are well settled and there is no need for me to state them in court in any great detail.

I have had regard to the submissions made by Mr Grogan SC for the accused, and I am obliged to take into account also the manner in which the accused has approached this case by signed pleas of guilty in the District Court, he has not sought to change his pleas before this Court as frequently happens, and to that extent he has done everything possible to lessen the effect of the crime on the two ladies concerned; and as I say I am obliged to take that factor into account and I do. The offences, as I say, particularly the offences of rape and buggery are serious offences and this is not in any way to belittle the seriousness of the other offences in respect of which the accused has signed pleas of guilty. I don’t propose in detail, or at all, to set forth in the course of this judgment the circumstances in which the rapes occurred. They are dealt with in the statement made by the accused of which evidence has been given, and also they are set forth in fairly considerable detail in the reports prepared by Dr Lyster to which no exception has been taken by counsel on behalf of the accused.

Were it not for the plea of guilty I would have considered that the appropriate sentence in respect of the rape and buggery cases to be fourteen years’ imprisonment in respect of the buggery and penal servitude in respect of the rape charges, but taking into account, as I do, the way in which the accused has approached the case and conscious of my obligations not only to him but to society and to the victims of these attacks, I would consider that a fair and reasonable sentence to be imposed in respect of the charge of rape of the first woman to be ten years’ penal servitude, and I sentence him to ten years’ penal servitude to date from today. And I have taken into account the fact that he has been in custody since July, and I am sentencing him to ten years’ penal servitude, and I will impose a similar sentence in respect of the rape of the second woman, and I sentence him to ten years’ penal servitude. And in respect of the buggery charge in respect of the second woman, I will sentence him to ten years’ penal servitude. [ recte imprisonment].

The essential submission advanced before us on behalf of the Director of Public Prosecutions is that the accused should serve an additional length of sentence because the court was concerned not with the rape of one woman but of two victims within a short space of time.

What is for resolution before us is whether the sentence imposed in respect of the offences committed against the second woman are in all the circumstances, in the words of the section, ‘unduly lenient’.

Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate.

In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was ‘unduly lenient’.

Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.

Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.

There will be cases where the question to be resolved is whether a monetary penalty, a suspended sentence or a sentence of a short term of imprisonment can be categorised as ‘unduly lenient’ and, it may be, there will be cases in that category which will admit of a ready resolution.

But in the case of Christopher Byrne it has to be observed that by any standard a sentence of ten years’ incarceration is a substantial one. Prima facie it could not be categorised as ‘lenient’, let alone ‘unduly lenient’.

To deal with the circumstances of this case which have already been outlined, while every rape is an evil and horrible act and a gross violation of womanhood, some rapes will have more significant aggravating features than others. Mr Haugh SC has submitted before us, as we think correctly, on any scale the rapes in this case must be in the higher range as having many aggravating factors. There is the fact that the attacks took place in the dwellinghouses of the women at night. That there was the use of a knife as an additional element of force to the actual physical act of rape. The court also has had regard to the age and circumstances of the second woman, and the second offence that was committed against her.

Then one has to assess the accused’s situation. It has already been detailed. This young man, aged 24 years, was very much at the mercy of drink and drugs but the single outstanding matter in his favour is that he confessed to these crimes immediately with, as Mr Grogan has submitted, extraordinary speed. He never departed from that position. He signed pleas of guilty in the District Court and, once again, he did not retreat from that position when he was sent to the Central Criminal Court for sentence.

The women on being asked whether they wished to come to court as is required under the legislation were absolutely clear that they did not want to come to court at all. It is worth reiterating again what the significance of an early confession followed by a plea of guilty is as set forth by Finlay CJ, speaking for the Supreme Court, in the case of People (DPP) v. Tiernan [1988] IR 250; [1989] ILRM 149 and reiterated with increased emphasis in the more recent decision of the Supreme Court in Director of Public Prosecutions v. G. [1994] 1 IR 587, in which the unanimous judgment of the court was delivered by the Chief Justice on 11 November 1993. To recall what was said in Tiernan, the Chief Justice stated (at pp. 255/153):

I have no doubt, however, that in the case of rape, an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.

Here the learned President said that if there had not been a plea of guilty he would have imposed a sentence of 14 years.

Then we are urged to increase the sentence because of the proximity of the attacks on the two women. Having committed the first attack, leaving aside altogether the previous conviction for indecent assault some years before, here he is engaged in a second attack on a second woman. However, the court takes the view that it might have been worse if these attacks had taken place over a substantial interval of time. The case made on behalf of this accused is that he was obviously going through a particularly aberrational period as a result of being engaged in alcohol and drug abuse.

If we were to increase the sentence it would have to be a substantial figure such as the figure mentioned by the learned President, namely 14 years and then one would have to ask: what would the gross figure have been if there had not been the mitigating factor of the confession and the pleas of guilty and one would have to add another four years at least bringing it to the extremely high figure of 18 years.

We are satisfied that the learned trial judge brought all his immense experience to bear on this case. Had he expressly differentiated between the two offences, he might have imposed (as Mr Grogan suggested as a possibility) a sentence of eight years’ imprisonment in respect of the first woman and a sentence of ten years in respect of the second woman. It is difficult to see how this Court could have interfered with such a sentencing policy. It is clear that the learned President gave effect to that differentiation in practice by imposing a sentence of ten years’ imprisonment; he might have done it the other way but we are clear in our minds that he brought all the correct principles to bear to this case. It has not been suggested that he took into consideration anything that he should not have taken into consideration.

In the circumstances the court declines to interfere with the sentence that was imposed in this case and refuses the application of the Director of Public Prosecutions.

People (DPP) v Keane

[2007] I.E.C.C.A. 119

JUDGMENT of the Court delivered by Murray C.J. on the 19th day of December 2007

This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the Respondent in the Central Criminal Court on the 12th March 2007 following his conviction by the jury of the offence of rape. The sentence imposed by the learned trial Judge was one of three years imprisonment suspended on his being of good behaviour in his own bond for €1,000 for a period of five years. (He was also certified as a sex offender and placed on the Sex Offenders Register).
The D.P.P. brings this application as an independent public servant authorised by law to prosecute crimes and offences pursuant to an Act of the Oireachtas adopted in accordance with Article 30.3. of the Constitution which otherwise vested the role of prosecutor in the Attorney General.

As in virtually every country, the Courts established by and in accordance with the Constitution have a hierarchal structure. This permits, inter alia, access to the Courts at first instance and on appeal to a higher Court whose decision is then final and binding. Exceptionally there may be a further appeal to a higher Court again, usually in limited circumstances, in one form or another, such as an appeal from this Court to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924.

Courts of appeal have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process. Legal systems provide for an appeal from Courts of first instance not least because it is not assumed that Courts of first instance are infallible no more than it is assumed Courts of appeal are. There is no human institution that enjoys such a brave assumption. Indeed when the Supreme Court relaxed the doctrine of stare decisis (in AG –v- Ryan Car Hire Limited 1965 I.R. 642) Kingsmill Moore J. noted “If it could be safely assumed that all members of a Supreme Court were perfectly endowed with wisdom and completely familiar with all branches of the law, to treat their judgments as infallible would need but little justification. Judicial modesty has refrained from putting forward such a claim … .” Moreover, an appeal by a party who, rightly or wrongly, is dissatisfied with a decision of a Court of first instance, in addition to providing the party with the benefit of a case being heard or examined a second time by another Court, also brings finality to individual disputes before the Courts which is one of the objects of the administration of justice.

That is the structure which we are constitutionally bound to respect.

As regards sentencing, for a very long time only the convicted person had a right of appeal against the sentence imposed on an accused following conviction on indictment. There were historical policy reasons for this which it is not necessary to consider here. Suffice it to say that, for public policy reasons, the Oireachtas decided in 1993 that the Director of Public Prosecutions should, in the circumstances referred to in s. 2 of that Act have a right to apply to the Court of Criminal Appeal to review the sentence imposed by the trial Court. That is the position in law.

Subsection (1) of that section provides “If it appears to the Director of Public Prosecutions that a sentence imposed by a Court … on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”.

Subsection (3) provides that on such an application this Court may either quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate being a sentence which could have been imposed on the accused by the sentencing Court. Alternatively, it may refuse the application of the D.P.P.

Having imposed sentence in this case the learned trial Judge went on to advise Counsel for the respondent that he should warn his client that “the Director is very trigger happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter.”

The Court considers this reference by the learned trial Judge to have been unfortunate as it may be understood as trivialising or lacking in the respect which is due to the process of appeals designated as appropriate by the Oireachtas. Section 2 of the Act of 1993 established a process of access to a court of appeal on the part of the D.P.P. in respect of sentences imposed by the sentencing Court. A Court should avoid using language that might be taken to suggest the denigration of the exercise of a statutory function of appeal. Moreover no finding was made or any conclusion pointed to which could in any sense justify the use of language suggesting that the right of appeal was being abused, which in any event is essentially an issue for the Court of Criminal Appeal.

On the contrary, the Director’s application in this case far from being an abuse of the process of the Court is, as the Court’s conclusions set out below in this judgment demonstrate, one which is well founded.

Background Facts

The offence of which the respondent was convicted is that he did, at a time unknown on the night of the 29th or 30th May 2005, at a certain address in Ennis, Co. Clare have sexual intercourse with a female person who at the time of the intercourse did not consent to it and at the time he knew that she did not consent to the intercourse or was reckless as to whether she did or did not consent to it, contrary to common law and as provided by s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act, 1981.

It should be noted at this stage that subsequent to the imposition of the suspended sentence by the Court of trial the respondent was brought before that Court again and, after the learned trial Judge had made certain findings of fact adverse to the respondent, he set aside the suspension of the respondent’s sentence and ordered that he serve the term of three years imprisonment. This latter Order of the trial Judge was in turn appealed to this Court by the respondent. That is a separate issue with which the Court is not presently concerned. The sole question before the Court for present purposes is whether the application by the D.P.P. pursuant to s. 2 of the Act of 1993 is well founded.

The essential facts concerning the rape of the victim were not in dispute at the trial although the accused maintained his plea of not guilty throughout. From the outset of the Garda investigation into this offence, shortly after its commission, and throughout the trial the stated position of the respondent was that he had no recollection whatsoever of the events immediately surrounding its commission due to the fact that he had earlier, during the evening prior to the offence committed, consumed a considerable amount of alcohol and also taken some drug described as MDMA and referred to in the trial as being a form of ecstasy. There was in any event cogent evidence from the victim herself as well as expert evidence which showed that the DNA profile derived from a semen sample taken from the victim matched the DNA profile of the respondent.

The victim, Miss Y, was at the time of the offence a 33 year old single woman who lived on her own with three young children on a housing estate in Ennis, Co. Clare. The children were aged about 10, 8 and 4 at the time. At that time Miss Y had been “essentially living with”, as it was put at the trial, her boyfriend Mr. M since September 2004. He had previously been a boyfriend of Miss B. At the time of the offence Miss B’s boyfriend was the respondent. Mr. M was not residing in the victim’s house around the time of the offence because of an argument which had occurred between them. Miss B lived in a house on the same housing estate nearby to Miss Y’s.

Although the respondent and Miss Y knew one another from the locality and mutual friends, especially through Miss B, and he had previously been in her house, there had never been a close or intimate relationship between the two of them.

On the evening of May 29th 2005 the victim, Miss Y, had put the children to bed by 9.30 p.m. and decided to go to bed early herself shortly after that.

She suffered from severe deafness since childhood and always wore a hearing aid but did not do so when she went to bed because it was uncomfortable to wear in bed. She always slept with the light on and had a landing or bathroom light on with the door to her own bedroom left open. Due to her deafness she would not hear the children if they woke up in the middle of the night but if they came out of the room the lights enabled them to readily see her in her bed and they could come straight into her.

The offence was committed between midnight and 1.00 a.m. There was evidence at the trial that Miss Y woke up and was conscious of a male person in her bed who was cuddling up to her and had his arm around her waist. She had had an argument with her boyfriend M. and she thought that “[M] is back that is good”. There was no conversation and she went back to sleep. The next thing which occurred was that she woke up with a man on top of her having sex with her. Initially she assumed it was M but soon realised that it was not, noticing, inter alia, that unlike M the man had tattoos on his arm and he had different hair. She panicked and pushed the man off her and felt his penis sliding out of her. She got out of bed. She found the bedroom door had been closed and on running out of the room she found the lights had also been turned off outside. She turned on the lights and stood in the bedroom doorway and saw the respondent sitting on her bed with no pants on. She screamed at him and said “Adam what are you after doing, I’m telling …(Miss B the respondent’s girlfriend). She also told him she was going to call the Guards. She later told the Guards that he looked dazed and in her evidence said he gave the impression that he felt there was no great problem. Miss Y left the house in a state of panic failing to make contact with Miss B, spoke to another person on the phone and eventually the Gardai arrived. The respondent had left the house by this time. There was also evidence that the lock on the rear door to Miss Y’s house had been broken for some time so that over a period it could be opened at any time from the outside and that this was the manner in which the respondent had gained entry to the house.

After leaving the victim’s house the respondent went to the nearby house of his girlfriend, Miss B. Having woken her up and been admitted to the house he gave no explanation, although asked for one, as to why he had called on her so late and had not gone to his own home. Miss B told him to sleep on the couch, which he did. She thought he was drunk. Not long afterwards three Gardai arrived to interview the respondent. He was asleep and was woken up.

The respondent, who did not give evidence at the trial, told the Gardai in the course of interviews subsequent to his arrest how he had drunk a considerable amount on the Sunday evening but could remember nothing from a time just before he left a bar where he had been drinking to the time when he woke up in his girlfriend’s house with three Gardai present. He said that when drinking he had put a powder into his drink, which he understood to be something called MDMA. When asked about the allegation that he had sexual intercourse with Miss Y without her consent he stated that he had no memory of this. He could not remember. Asked if it was possible he could have done this he stated “Well in my personal opinion, I don’t think it is possible for me to do something like that, because in all my life I never raised my hand to a girl or never been abusive towards a girl either, it goes against everything I stand for.” He told the Gardai that he could not remember because he had blacked out. He had blacked out due to drink many times before. He also told the Gardai that he knew Miss Y and had been to her house a couple of times.

Sentencing

In imposing sentence the learned trial Judge made particular reference to the case of The People (D.P.P.) –v- N.Y. (2002 4 I.R. 309). That was a decision of this Court which imposed a suspended sentence for two offences of rape, in the particular circumstances of that case and in doing so allowed an appeal against the sentence imposed by the learned trial Judge in that case, which is the same trial Judge as in this case.

In imposing sentence in this case the learned trial Judge observed that

“It is the experience of this Court that a surprising number of cases come before it in which a woman, for example, at a party goes to a bedroom to rest and goes asleep and comes to, to find somebody inside her engaging in unlawful sexual congress. In the N.Y. case, which has been referred to, I expressed the view that juries were reluctant to convict in these cases and that was certainly so for a period of time. It does seem to me now that more juries are convicting in these cases. Their frequency is quite surprising and clearly there needs to be substantial protection in place for a predator wandering around the bedrooms at parties and engaging in unlawful sexual congress of this kind and also the other situation would be where somebody through drinks, drugs or a combination, drinks himself into a situation where he does not know what he is doing”.
He then went on to add:
“In the N.Y. case I imposed a sentence of four years imprisonment which Mr. Denis Vaughan Buckley described on behalf of the Prosecution as moderate and was intended by me to be moderate. The Court of Criminal Appeal set aside that sentence in its entirety. It indicated that a trial judge in the case of anal and vaginal rape had to direct his attention in the first instance to a suspended sentence and it also took issue with my having said I sought to be consistent with myself.” (The reference to four years was then corrected to three years which was the sentence imposed in NY, nine months of which was suspended).
In proceeding to impose sentence the learned trial Judge added:
“Having regard to the approach taken by the Court of Criminal Appeal to this type of offence in the N.Y. case, I have to ask myself whether or not I would be comfortable if I imprison this particular accused who is a young man with no previous convictions whose attitude was that he thought what he did was out of character, what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibilities in the matter.”
The learned trial Judge added:
“This accused has no previous convictions, I would think that from his experience in this case he is unlikely to offend again. I think it necessary that it come down clearly from this Court that people cannot wander around the bedrooms and behave in this predatory fashion …”
The learned trial Judge expressed the view that the sentence of 3 years which he imposed in the N.Y. case was a moderate and lenient one and was so described by Counsel for the D.P.P. It was, he noted, set aside in its entirety by the Court of Criminal Appeal.
“I would not be comfortable if I sentenced this man in the light of what happened in the N.Y. case. He is certificated as a sex offender and remains certificated as a sex offender but entirely by reason of the approach taken by the Court of Criminal Appeal I sentence him to 3 years imprisonment suspended on his being of good behaviour in his own bond of €1,000 for a period of 5 years.”
Decision
As is clear from the above the learned trial Judge based his decision on the N.Y. case, and saw that as determining his approach to the sentencing of the accused in this case.

At the trial and in the course of argument in this appeal, Counsel for the D.P.P. had made detailed submissions differentiating the N.Y. case from the facts and circumstances of this case. It was submitted on behalf of the D.P.P. that this case was one which required a custodial sentence.

Counsel for the respondent submitted that the sentence imposed by the learned trial Judge was one which he was entitled to impose having regard to the circumstances in which the offence was committed and the circumstances of the accused. He referred to all the mitigating factors which the learned trial Judge was entitled to take into account. Having done so, it was submitted, the sentence could not in all those circumstances be considered unduly lenient.

Before dealing with these issues the Court considers it appropriate to refer to the general approach which should be applied when imposing a sentence for the crime of rape.

For a very long time the crime of rape has been considered as one of the most serious offences in the criminal calendar. Almost invariably it attracts a substantial custodial sentence. A convenient starting point to the case-law on the gravity of this offence is the oft-cited judgment of Finlay C.J. in The People (at the suit of the D.P.P.) –v- Edward Tiernan [1988] I.R. 250 at 253 when he stated:

“The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In Attorney General –v- Conroy 1965 I.R. 411 this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence.
The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of life long duration.

Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.”

Finlay C.J. went on to reiterate the long standing principle that the offence of rape must normally attract a substantial custodial sentence. He did so in these terms:
“All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment.
Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”

In so stating Finlay C.J., whose judgment was that of the majority of the Court, was acknowledging that the ambit of a Judge’s obligation under the law to impose a sentence which meets the particular circumstances of a case and of the accused person, even for an offence as grave as rape, does not in principle exclude the possibility of a non-custodial sentence in wholly exceptional circumstances. The wholly exceptional circumstances must be such as to justify a departure from the norm of a substantial custodial sentence.
However the Supreme Court in that case did not seek to set out a standard scale of sentences which might be appropriate in cases of rape. Finlay C.J. noted:

“…having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused I would doubt that it is appropriate for an Appellate Court to appear to be laying down any standardisation or tariff of penalty for cases.”
In order to address the issues in this application it is necessary to consider in some detail the judgment in the NY case.
Facts in the NY Case

The judgment of the Court of Criminal Appeal in the N.Y. case discloses that the appellant in that case had been drinking in a pub earlier on the evening of the rape although drink did not play a major role in the offence. He left the pub in the small hours of the morning and from the street noticed that there was a party in an upstairs flat. There was apparently some communication from the street between him and the people in the flat as a result of which he was invited to join the party. It was a small flat and there were a number of young people at the party. Some time after 3.30 a.m. the appellant became engaged in conversation with one of the girls at the party who was also one of the occupants of the flat. They started kissing on a bed in one of the bedrooms. As the Court of Criminal Appeal in its judgment (Fennelly, Lavan and Abbott J.J.) noted

“At this stage, according to the accused several people were “crashed out”. In very unclear and disorganised circumstances the accused and the victim ended up sharing a bed in an extremely small bedroom (probably about 8’ by 8’) with two beds. The accused does not suggest that he and the victim shared that bed in any sense from which consent to sexual intercourse could be inferred. There were people asleep in another bed. The accused removed clothing from the lower part of his body. However, it is clear, on the best account from the point of view of the accused, that the victim, having engaged in kissing with him, fell asleep lying on her stomach. There were other people asleep in the room.
The offences were committed while the victim was asleep. The accused fondled the victim and became sexually aroused. He committed both vaginal and anal rape upon her. He did not ejaculate. He knew she was asleep. There was no question of her consenting to any aspect of this behaviour.

The victim woke up with a jolt, realised what was happening to her, became shocked and distressed and told the accused to go home. She ran from the room and, apparently, confided in her friends.” …”The accused acknowledges that he knew he had gone “too far”. “ …”He found paper and wrote a note saying “sorry to offend but my fault whatever I did”. He did not meet the victim and left the flat.” The Court also recited that “Having been traced and interviewed by the Gardai, the accused made a full statement admitting the facts of the case and his responsibility for them in their entirety. He expressed regret for what he had done. According to the Garda evidence, the accused was very remorseful. When offered the chance of an identification parade, he said it was unnecessary. He accepted his guilt and did not wish to put the victim through further trauma. As already stated he made no attempt to claim that the victim had consented to his behaviour. He has maintained this position at all times. He has fully accepted his entire responsibility for the crimes he committed.”

As regards the victim the Court noted:
“The victim was aged 19 at the time of this rape. She was a University student. She suffered psychologically rather than physically from the rape. The psychiatric report diagnosed her as suffering from depressive illness, necessitating the taking of anti-depressants, due to the rape, but after a year she had fully recovered. She declined her statutory right to give evidence.”
The Court also had particular regard to statements of the learned trial Judge when imposing sentence and cited from his decision as follows:
“I have indicated in many cases recently that every sentence passed in this court must be consistent with every other sentence passed and that in broad terms the sentences to be imposed should be predictable. I am dealing here with two cases of penetrative rape. The sentence I am going to impose in this case is less than what might be predicted from the document which I term the annual report of this court in which all sentences passed by it are set out.
There have been a significant number of cases coming before this court in which girls, young girls, young women go to sleep at a party and say that when they woke up they found somebody inside them. Juries have been remarkably reluctant to convict in this sort of case and by and large, when this sort of case has gone to trial, it has resulted in an acquittal and this is at the hands of average, evenly sexually mixed juries. It seems to me that if this case had gone to trial and taken the usual course that happens in these cases and resulted in an acquittal, that the trauma of that would probably be more damaging to the victim in this case than anything that happened on the night. The accused in this case immediately regretted his actions and at the scene, left a note behind apologizing, effectively identifying himself. He cooperated to a remarkable degree and took every step he could to spare the victim NY further injury or trauma. This has all to be taken into account. On the other hand, I am nevertheless left in the position that I am dealing with two penetrative offences of rape and that cannot be ignored.

He is of previous good character and no doubt had a great future ahead of him. He was of an enquiring mind, obviously, and a great traveller and the effect of what I have to do will be devastating for him. I certify him as a sex offender, as I am required to do under the Sex Offenders Act, 2001. The prosecution are not in this case seeking a post-release regime under the Sex Offenders Act, 2001, which says a lot in itself. At the end of the day, however, I still have to have regard to the nature of the offences and the penalties imposed in general by this court. Accordingly, on each count I impose a sentence of three years imprisonment to run concurrently. Having regard to the fact that he has taken proactive steps not to occupy a trial date and accordingly left a slot available for the court to deal with another person in which it has a backlog of sixteen months rising, I give him the usual consideration which I give to everybody else in this situation and on that account unconditionally suspend the final nine months of the sentence.”

The first question which the Court of Criminal Appeal addressed in that case was whether there had been an error of principle on the part of the learned trial Judge when imposing sentence. It acknowledged that the crime of rape is one of the most serious crimes in the criminal calendar and that normally the offence called for the imposition of a custodial sentence. The Court then went on to examine, not the period of custody imposed, but the process or approach adopted by the trial Judge to the issue of sentence.
It went on to state:

“Nonetheless, the Court imposing sentence must not deprive itself of the possibility of identifying the exceptional case where a custodial sentence may not be warranted. It is a truism that the Courts must sentence the offender and not the offence.”
The Courts then stated:
“This Court considers that, in this case, the trial Judge may inadvertently have given the impression that he was acting on the constraint of a rule mandating a custodial sentence.”
The Court added:

“The trial Judge attached great weight to the need to be “consistent” and “predictable” and later with the need to “have regard to the penalties imposed in general by this Court. In these passages, he does not appear to acknowledge the possibility that a non-custodial sentence may be warranted.”

Later in its decision the Court went further and stated:
“This Court considers that the trial Judge closed the door even to the possibility of a non-custodial sentence, by insistence on the need for consistency with the sentences imposed in the Central Criminal Court. Thus, he approached the question of sentence in this case without leaving open the possibility that this was an exceptional case which a non-custodial case (sic) could be warranted.”
It is important to note that the Court in that case first of all identified an error of principle in the process of sentencing rather than an error in principle in the actual sentence imposed. That is to say, the closing of the door on even a consideration of the possibility of a non-custodial sentence. It did not conclude that the sentence actually imposed by the trial Judge, three years with nine months suspended, was itself wrong in principle. That was not the ratio of the decision. If the Court of Criminal Appeal in the NY case had concluded that the trial Judge had not committed an error of principle by excluding the possibility of a suspended sentence, but indeed had considered that option in the circumstances, it might well have left stand the sentence imposed as falling within the range of sentence open to a trial Judge to impose within the ambit of his or her discretion. It is long established that a sentence is not wrong in principle simply or only because the Court of Appeal might have imposed a greater or lesser sentence if it was itself acting as a sentencing Court.
That was the approach adopted by the Court in that case. As the Court itself put it “Having reached the conclusion that the trial Judge erred in this way, this Court must now consider the appropriate sentence.” The Court also stated “The Court must in these circumstances impose such sentence as it thinks appropriate at this time.” (emphasis added). That is provided for by s. 3 of the Criminal Procedure Act 1993 which provides that where the Court quashes a sentence it may impose such sentence as it considers appropriate.

Thus, having set aside the sentencing decision of the trial Judge on the basis of an error of principle in the process of sentencing the Court then had to substitute a sentence on the basis of its appreciation of all the particular circumstances of the case at that time. In short it was acting as the sentencing Court as if it was sentencing the accused ab initio but taking into account that he had already served seven months in prison.

In imposing sentence the Court started from the position that the two counts of rape to which the accused had pleaded guilty “would normally unquestionably merit a substantial term of imprisonment”. It took into account that the appellant in that case had in fact served a term of imprisonment of over seven months and that he would bear the stigma of being registered as a sex offender pursuant to the Sex Offenders Act 2001. It then concluded:

“His early, indeed immediate remorse, his exceptionally honest acceptance of responsibility, including his plea of guilty, and his general good character must weigh in the balance in his favour. It is of note that such an experienced trial Judge as Carney J. should pronounce thus: “He co-operated to a remarkable degree and took every step he could to spare the victim any further injury or trauma.” All of these matters persuade the Court that this is an exceptional case in all the circumstances, the Court will not interfere with the length of sentence imposed by the trial Judge, but it will suspend the balance of the sentence on terms to be entered by the accused.”
In the result the sentence served by the accused was 7 months rather than the 27 months envisaged by the trial Court. Accordingly it is clear that the first and central point of the decision, as far as the Court in the NY case was concerned, was that the exceptional circumstances of that case meant that the sentencing Court should not have excluded the possibility of a non-custodial sentence, notwithstanding that the starting point for a sentence for the crime of rape is normally a custodial sentence. Having considered itself bound to set aside the sentencing decision of the trial Judge on that ground the Court was then required to impose a sentence on the basis of its appreciation of the exceptional circumstances of the case as matters stood at the time of the appeal. Having made its own appreciation the Court suspended the remainder of the appellant’s sentence. That represented the Court’s appreciation in that particular case of the exceptional circumstances. Those exceptional circumstances stemmed not from one circumstance but from each and every element of the combined circumstances which the trial Judge himself had identified when imposing a very modest sentence in the court of trial.
In exercising its own appreciation in the NY case the Court did not decide that a custodial sentence of some degree would always be wrong in principle in similar circumstances. The principle in that case was decided in the first part of the judgment namely that the possibility of a suspended sentence, in the wholly exceptional circumstances, should not automatically be excluded at least from consideration.

So far as sentencing generally for the offence of rape is concerned a sentencing Court must have regard not to one individual case but to the range of cases, some of which have been cited here, governing sentences in such cases and then exercise its own discretion having regard to all the circumstances of the case actually before it.

In the present case the trial Judge in the course of sentencing stated that the NY case“indicated that a trial Judge in the case of anal and vaginal rape had to direct its attention in the first instance to a suspended sentence …” and went on to state “Having regard to the approach taken by the Court of Appeal to this type of offence in the N.Y. case …”

It must be said that the NY case, as is patently clear, did not indicate an approach to be taken with regard to a “type of offence” or with regard to rape generally (other than to say that it should normally involve a custodial sentence) but indicated an approach which should be taken with regard to a case of rape in which there are wholly exceptional mitigating circumstances of the nature referred to in that case.

Moreover, this Court, in The People (DPP) –v- G.D. [2004] IECCA 17, in its judgment delivered by McCracken J. (with Gilligan and O’Leary J.J.) found it necessary to refer to a statement during the course of sentencing by the trial Judge in the G.D. case to the following effect:

“The probation officer, who furnished an extensive report, I think proceeded on the basis that this was a case where a non-custodial sentence could not or would not be imposed, but the Court of Criminal Appeal seems to have directed that the starting point of ones consideration as to whether it can be dealt with on that basis or not.”
In the G.D. case the Court, commenting on that observation, stated:
“This Court is satisfied that the Court of Criminal Appeal did not give any such direction in the N.Y. case. In fact, that case emphasised that a custodial sentence should normally be imposed for such a crime.”
In the present case the learned trial Judge appears to have ignored this dictum of the Court.
Neither did the Court in the N.Y. case take issue with the principle that consistency in sentencing is an important part of the sentencing process. What it did conclude is that it should not exclude from consideration by the trial Judge sentencing options related to the particular circumstances of the case. To recall the words of Finlay C.J. in D.P.P. –v- Tiernan:

“…the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, …”
The Court is also satisfied that the facts and circumstances of this case are not, for sentencing purposes, similar to the particular combination of facts and circumstances which arose in the N.Y. case.
Aggravating Circumstances

Without in any sense taking away from the seriousness of an offence of rape committed, in combination with other surrounding circumstances, by anybody who, having consensually gone to bed with a woman at a party, to which he was invited, commits the offence of rape, the offence in this case was committed in wholly different circumstances with different and more aggravating elements.

The victim in this case was a mother of three young children who, having put them to bed on the night in question, herself went to bed in the security and safety of her own family home. If there is one place in everyday life that a person needs to, and is entitled to, feel safe and secure it must be in his or her own home at night. This must be ten times more true for a mother responsible for three young children asleep in bed.

The respondent has been found criminally responsible for invading her family home and raping that young mother in her own bed with her children sleeping nearby.

The respondent had known where she lived, had been in the house before and knew that she was hard of hearing. He, uninvited and illegally, entered the house through a back door, which for some considerable time could not be locked due to a defect in the lock. He climbed upstairs, turned off the landing light, which had been left on to enable the children asleep to have easy access to their mother’s bedroom in the case of need. He surreptitiously entered her bedroom, crept into her bed and raped her. He violated the mother, her home, her family wellbeing and the sense of security which she was entitled to expect for herself and her children in that home.

Thus this was not only a violation of the victim herself, with all the implications referred to at the outset of this judgment, but also the sense of security which citizens feel they have for themselves and their children in the safety of their own home. The fact that the rape took place in these circumstances was to have lasting additional and devastating effects on the victim as well as very negative consequences for her children.

The evidence before the Court of trial concerning the impact of the crime on the victim included the fact that she soon moved to her parent’s house with her children where she remained in bed for six weeks during which time she was distressed by media coverage of the rape. She never returned to the house where the rape occurred, as she would have found it too distressing to do so. She reported that she would never have felt safe there again and that she had lost her independence. That is why she had to go back living with her parents. She eventually left her parent’s house and moved to another rented house but did not feel safe there so she moved again. She now has an alarm in the house which she is living in with two guard dogs and the dogs sleep in the bedroom.

Following the rape she has found it difficult to have an intimate relationship with her partner and that relationship subsequently ended. She is fearful going anywhere on her own. She distrusts men with the exception of her father, brothers and former partner.

She found giving evidence at the trial distressing. She also found being away from her children for the week of the trial distressing. The evidence disclosed that she had difficulty in coping with counselling available to her, as she found it stressful.

There was also evidence that she felt traumatised by the rape and felt her life was ruined. She was in a constant state of alertness and is easily startled. Sometimes she stays in bed because she cannot be bothered to get out of bed and can go for days without eating. She had little energy and media accounts of other sexual cases distress her because they remind her of her own.

She told the Court of trial that the rape “has had a huge impact on my life and my kids’ life”. She and her children had to leave the house which she had lived in for nine years following the rape and she was distressed about that because they had to move to a new area and both she and her children lost the friends they made in that area.

In effect, she and her children were driven out of their own home and neighbourhood by the actions of the respondent. All this seems to have been ignored by the trial Judge.

She has never spoken to her children about what happened and she is particularly worried about her daughter, 12 years of age at the time of the trial, and what she may know about it. In this context she remains distressed that in the panic of events immediately after the rape, she left the house for a short while, leaving her children in the house with the man who had raped her.

As can be seen from this evidence, the rape not only had very serious consequences for the victim but has had continuing serious consequences for her as a mother and her family. In contrast, according to the evidence in the NY case, while the victim had, of course, suffered serious consequences, she had recovered fully from the psychological effects within one year.

Moreover, the respondent in this case, unlike the NY case, did not admit the offence from the outset, but maintained a plea of not guilty to the very end. The trial Judge, when sentencing the respondent, referred positively to the attitude of the respondent, as expressed to the Gardai during interview, “that what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibility in the matter”. The DNA did establish that he had intercourse with the victim, which of course had always been the victim’s own evidence. Whatever not resiling from his responsibility meant, it did not at any stage entail accepting criminal responsibility for the offence of which he was ultimately convicted. Of course the respondent was perfectly entitled to plead not guilty. The fact remains that an immediate admission of responsibility and an early plea of guilty, which would have spared the victim the waiting for and going through a trial, which was available as a mitigating factor in the NY case is not present as a factor in this case. This is not by any means the most significant factor differentiating this case from the NY case but it is one of many factors.

In the view of the Court all of the foregoing circumstances demonstrate that the circumstances of the offence and the consequences which it has had for the victim are wholly different from those which pertained in the NY case and the Court is satisfied that the learned trial Judge was wrong in treating them as somehow similar cases.

Undue Leniency

The task of a sentencing Judge is often a difficult and complex one. The law obliges him or her to have regard to all the salient features of the circumstances in which the offence was committed, the nature of the offence and its impact on the victim and society so as to evaluate its gravity. The sentencing Judge is also obliged to have regard to the particular individual who must be sentenced, his or her personal history and circumstances so that a punishment which is proportionate and just may be imposed. There may be matters which the prosecutors consider to be of prime importance and other matters which the defence considers to be of prime importance but it is for the Judge to adopt an independent evaluation of all factors. Apart from the case of murder it will not be possible to refer to a predetermined term of imprisonment which ought to be imposed. Neither has it ever been the function of the D.P.P. to propose that a specific sentence should be imposed. That is a judicial function and an issue which can only be determined when all relevant factors have been taken into account and evaluated by the sentencing Judge in the exercise of his or her independent judicial functions. Counsel for the D.P.P. is, of course, under a duty to bring to the Court’s attention all law and factors relevant to the sentence which may be imposed. The D.P.P. may also assist the Court, which is a practice with a provenance of long standing, by submitting with reference to specific circumstances that those circumstances are such as to warrant a custodial or a substantial custodial sentence or otherwise for the offence committed.

The sentencing Judge has to decide in each case the appropriate sentence within the general parameters of sentencing depending on the nature and degree of aggravating or mitigating circumstances. Sentences are imposed each year in some 3,000 cases by the Courts on those convicted on indictment, only a small proportion of which are appealed on the grounds of either severity or undue leniency. Of all those appealed only a minority are successful. Of those cases only a small fraction receive media attention, as is inevitable, and they do not always reflect the generally high standard of judgment exercised in the sentencing Courts, including by the trial Judge in this case, in often complex circumstances.

However, it appears to this Court that the trial Judge’s pre-occupation with the decision in the NY case distracted him from the essential particularities of this case. The trial Judge made no reference in his sentencing decision to the impact which the crime had on the victim and her family life nor did he appear to attach sufficient weight to the place and circumstances in which the rape was committed.

The Court is satisfied, having regard to the circumstances of the case, the particular circumstances of the respondent, that the well established principle that a custodial sentence should be imposed for the offence of rape ought to have been followed, there being no facts or circumstances in the case which could justify the exceptional and rare departure from that principle. Accordingly in imposing a suspended sentence in this instance the learned trial Judge erred in principle.

In coming to that conclusion, the Court has taken into account the fact that the respondent had told the Gardai, in the course of their interviews with him, that he could remember nothing of what happened on that night between the time he left the pub and was woken up and interviewed by the Gardai in the early hours of the morning in his girlfriend’s house. He could, according to his own story to the Gardai, recollect events of the evening up to leaving the bar and after his first confrontation with the Gardai but not those in between when the rape occurred. This was due he said, to the consumption of alcohol and a drug at one stage in the evening. He had had, he claimed, blackouts before due to the excess consumption of alcohol when he could not remember what had happened the evening before. Although the respondent did not give evidence himself at any stage concerning this matter before he was sentenced, as indeed was his right, particularly so with regard to the trial, the learned trial Judge appears to have accepted, for the purpose of sentencing that that was the position. This Court has proceeded on that basis. Although at the time when he was woken by the Gardai in his girlfriend’s house he may have had no retrospective recollection of what had occurred for the aforementioned reasons there was no direct evidence as to his state of mind at the time when the offence was committed other than that he was drunk and had also taken a drug with one of the drinks.

On the basis of the totality of evidence before it, including his account to the Gardai regarding his lack of recollection, the Jury convicted the respondent of the rape of Miss Y which the learned trial Judge had properly informed them means a man who “has sexual intercourse with a woman who at the time of the intercourse does not consent to it”, and, “at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it”.

Having regard to the foregoing the Court is satisfied that the suspended sentence of three years imposed by the sentencing Court was unduly lenient, even when all the mitigating factors, referred to below, are taken into account.

It now remains for the Court to consider what sentence it considers appropriate.

Mitigating Factors

The mitigating factors were first of all advanced comprehensively by Counsel for the respondent in the sentencing Court and further fully developed and set out at the hearing of this application in support of the submission of Counsel that the sentence imposed by the trial Judge fell within the ambit of his discretion which had been properly exercised in the circumstances of the case.

One of the factors relied on by Counsel was the age of the respondent at the time of the offence 18½ years and also the fact that he had no previous convictions. He laid a certain emphasis on the co-operative attitude adopted by the respondent as regards the Garda investigation. It is correct to say that he co-operated with the Gardai particularly with regard to the provision of forensic samples. As regards the rape he told the Gardai that he had no recollection of what occurred after he left the bar in which he had been drinking – that he had blanked out after that and it was possible that he had intercourse with the victim in her house. In answer to questions from the Gardai he had also stated “I can’t remember but I don’t believe that I would do something like that, in all my life. I have never raised a hand to a girl. It goes against everything that I believe. I am sure that anyone that knows me would say that as well.” He told the Gardai he did not think he was capable of committing such an offence. At one point he told the Gardai, although not accepting that he had intercourse with the victim, that if he did do so and the blood test support this he would not believe it was rape. Also, as previously mentioned, he stated that if the DNA tests implicated him that he would not resile from his responsibilities. It is also true that at the trial that, although the victim had to give evidence as part of the prosecution case, he did not challenge the veracity of the victim. After conviction Counsel told the Court that the respondent took full responsibility for what occurred and deeply regretted what had happened.

Counsel also emphasised that the respondent lives in a rural area in a rural community where everybody knows everybody else. The case attracted widespread publicity in the local press as well as the national press. All of this coupled with the fact that he must be registered as a sex offender will mean that the respondent will carry the shame of this offence with him, especially locally, for the rest of his life. This means that he has no future in the locality in which he lives and probably no future in Ireland. His father lives in England and it is inevitable in the circumstances that he will have to go there and reside there, (where indeed he had been for a short period after sentence) and work there and continue to live with the obligations that arise from being registered as a sex offender. This means that he has thrown away the bright future he had in Clare and lost the option of residing with the rest of his family there. The burden of the conviction is something which he will carry for the rest of his days in County Clare. It was also submitted that this was a case in which the accused, as the learned trial Judge had found, was unlikely to offend again.

Sentence

The offence of rape is one of the gravest offences against society and the human integrity of the victim. The maximum sentence which can be imposed is life imprisonment. The circumstances which may be attendant on the commission of the offence of rape are multifarious, and aggravating factors, when present, variable and often dissimilar in nature or in their combination. It is one of those offences where it would at least be difficult, or as the Supreme Court put it in the Tiernan case, inappropriate to lay down any general standardisation or tariff of penalties. Nonetheless the starting point for any Court when imposing sentence is, as so often stated, that of a substantial custodial sentence. There are no circumstances in this case, relating to the offence or the accused which the Court considers could in any sense give rise to even the consideration of a sentence other than a custodial sentence.

In The People (D.P.P.) –v- Drought (2007 IEHC 310) the Central Criminal Court reserved judgment in order to ascertain the features or factors which tended to place those convicted for the offence of rape into particular ranges of sentencing from lenient, to ordinary, to serious to meriting condign punishment. In doing so reliance was placed on reported decisions of our Courts and these are the only relevant precedents for sentencing purposes. Assistance was also obtained from cases as reported in the media. Reference to the latter group of cases was, quite properly, qualified because as they did not report all the facts and circumstances of the case and they cannot be regarded as a source of legal precedent. Nonetheless, with that qualification in mind, they did provide some useful indicators for the purpose of the broad exercise involved in that case. The judgment did not purport to set standard sentences or tariffs but is a valuable reference point in ascertaining the wide variety of factors, as mentioned above, which can influence sentencing in rape cases. The incidents of aggravation and mitigation of offences can be so variable that no Court should consider itself bound by precedent on a rigid basis and due weight should be given to considerations that at times can be unique to the features of a particular case. As this Court stated in The People (D.P.P.) –v- R (C.C.A. Unreported 15th March 1999):

“As there are no universal standards applicable in determining penalties for rape or any other offence one must approach reported cases and the analysis of the sentences imposed therein with considerable caution.”
While the offence of rape consists, by definition, of a grave physical assault on the victim it is true that the offence in this case was not aggravated by additional or vicious physical assaults accompanying the rape which is often the case. However, the offence is aggravated by the fact that the victim, a mother of three young children, was raped in her own bed in her own home in close proximity to her children by the man who had illegally entered it in the dark in the early hours of the morning.
That had important and emotional as well as psychological consequences for the victim, which have already been referred to, and the mother and the young children had to move out of the home and neighbourhood which they had enjoyed for nine years. They were removed from the proximity of friends and neighbours which they knew locally. There were three occasions on which they moved house before moving into the house which they were at the time of the trial. It is perfectly understandable that the mother in question would become a nervous mother fearful for her safety in her own home. This cannot have but some negative consequences for the children also.

The fact that the respondent took drinks and some drugs so that he could not remember afterwards what had occurred does not absolve him from criminal responsibility as the Jury correctly concluded in their verdict.

Any idea that a man can trespass by stealth into a home at night and rape a woman, and mother, taking advantage of the fact that she was asleep in her own bed, can be treated as other than an aggravated form of rape should be set at nought. A crime of this nature in these circumstances although directed against an individual tends to make others feel unsafe.

It is indeed unfortunate to say the least that a young man in his late teens with no previous criminal record should damage, in these circumstances, not only the life of the victim and her family but that of his own family and himself. The fact that drink and drugs played a part in the evening in question does not absolve him from his answerability to the law and society.

While his young age, the fact that he has no previous convictions and may be unlikely to offend again along with other matters are factors to be taken into account it is nonetheless a serious offence with particular aggravating circumstances and effects. But for these mitigating factors a higher sentence than that which the Court proposes to impose would be warranted.

In the circumstances the Court is of the view that the appropriate sentence which should be imposed in this case is one of ten years imprisonment.

With a view to encouraging the rehabilitation of this young man and in all the circumstances of the case the Court will suspend three years of that term of imprisonment on his undertaking to enter into a bond to keep the peace and be of good behaviour towards all the people of Ireland during that time, and undertaking to co-operate with his supervision by a probation and welfare officer during the post release supervisory period referred to below. The bond is to be in the sum of €500.

Furthermore, the Court is of the view that when the respondent is released on completion of his sentence he should be subject to post release supervision in the interests of further rehabilitation. Accordingly the Court considers, having regard to the provisions of section 29(1) of the Sex Offenders Act 2001 that the respondent, on being released from his term of imprisonment, should for a period of one year commencing on the date of his release be under the supervision of a probation and welfare officer.

For the purpose of s. 31 of the Sex Offenders Act the respondent should note that in the event of a further offence being committed by him during the suspended three year period of his sentence he will be required to serve that three year period together with any further consecutive sentence imposed for that offence. Section 33 of the Act of 2001 provides that should he fail, without reasonable excuse, to comply with any of the supervision period conditions he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1900 or imprisonment for a term not exceeding twelve months or both. Such imprisonment, if it should happen, suspends the period of supervision and it will continue until it expires when he is released from prison. Under the provisions of the Act of 2001 the respondent may apply to vary or discharge any of the conditions relating to his post release supervision.

In short, the respondent is sentenced to a term of ten years imprisonment with three years suspended on he entering into the aforementioned bond and he will be subject to a period of one year post release supervision pursuant to the provisions of the Sex Offenders Act 2001. Against the background of the serious circumstances of the offences in this case the Court has not considered what was found by the learned trial Judge to have occurred subsequent to the trial as affecting the sentence now imposed. The sentence reflects the gravity of the offence itself in the circumstances in which it was committed by this respondent. The sentence is to date from May 11th 2007, being the date when he went into custody

The Court will also make the consequential order of placing the respondent on the register of sex offenders.

With regard to the outstanding appeal in the separate matter concerning the decision to remove the suspension of the original three year sentence, referred to at the outset, the Court, as a consequence of this judgment, will make the appropriate order setting aside that decision.

 

 

[1989] ILRM 149; [1988] IR 250

 

Finlay C.J.
13th May 1988

This is an appeal brought to the Supreme Court by the appellant against the decision of the Court of Criminal Appeal, delivered on the 13th January, 1986, dismissing his application for leave to appeal against a sentence of twenty-one years’ penal servitude imposed on him for rape. It is brought pursuant to a certificate issued by the Attorney General on the 9th March, 1987, pursuant to s. 29 of the Courts of Justice Act, 1924. The grounds upon which the Attorney General certified that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court, were that it involved the guidelines which the courts should apply in relation to sentences for the crime of rape. The grounds of appeal are as follows:
“(a) that the learned trial judge erred in principle in imposing a sentence which was far in excess of any sentence which had heretofore been imposed for the crime of rape or, indeed, any crime except perhaps one incident of kidnapping and false imprisonment,
(b) that the learned trial judge erred in principle in imposing a sentence which was far in excess of the conventional period a person might expect to serve who was sentenced to life imprisonment,
(c) that while the crime of rape was heinous, the Court should have regard to degrees of seriousness, and that this crime lacked any element of premeditation,
(d) that the learned trial judge did not have sufficient regard to the fact that the accused made a statement admitting his guilt in pleading guilty, and
(e) that the learned trial judge did not have sufficient regard to the need that the accused should some day be rehabilitated in society.”
Although the certificate of the Attorney General states that the point of law he certified was the guidelines which the courts should apply in relation to sentences for the crime of rape, having regard to its appellate jurisdiction this Court dealt only with the issues arising under the grounds of appeal submitted in this individual case and did not receive submissions nor reach any decision with regard to questions which might be applicable to cases of rape which had different facts and circumstances surrounding them. As counsel for the Director of Public Prosecutions submitted, the certificate must be read as stating the point of law to be whether on the application of the correct principles this sentence was appropriate.
Many of the considerations, however, which arise for determination on this appeal will hopefully be of assistance to judges having responsibility to decide on sentences appropriate on convictions for rape.
The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In Attorney General v. Conroy [1965] I.R. 411 this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence.
The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration.
In addition to those damaging consequences, rape can distort the victim’s approach to her own sexuality. In many instances, rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease and the possibility of a pregnancy and of a birth, whose innocent issue could inspire a distress and even a loathing utterly alien to motherhood.
Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.
All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment.
Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.
The facts of this case
Unfortunately, the facts of the rape to which this appellant pleaded guilty contain very many aggravating circumstances. They are:
(1) It was a gang rape, having been carried out by three men.
(2) The victim was raped on more than one occasion.
(3) The rape was accompanied by acts of sexual perversion.
(4) Violence was used on the victim in addition to the sexual acts committed against her.
(5) The rape was performed by an act of abduction in that the victim was forcibly removed from a car where she was in company with her boyfriend, and her boyfriend was imprisoned by being forcibly detained in the boot of the car so as to prevent him assisting her in defending herself.
(6) It was established that as a consequence of the psychiatric trauma involved in the rape the victim suffered from a serious nervous disorder which lasted for at least six months and rendered her for that period unfit for work.
(7) The appellant had four previous convictions, being:
(a) for assault occasioning actual bodily harm,
(b) for aggravated burglary associated with a wounding,
(c) for gross indecency, and
(d) for burglary.
Of this criminal record, particularly relevant as an aggravating circumstance to a conviction for rape are the crimes involving violence and the crime involving indecency.
The above summary of the facts surrounding the crime in this case reveals that very many though not all of the most serious aggravating circumstances which can be attached to the crime of rape were present.
The submissions
In the course of the submissions the Court was referred to a number of decisions in the common law jurisdictions namely: R. v. Pui [1978] 2 N.Z.L.R. 193; The People (D.P.P.) v. Carmody [1988] I.L.R.M. 370; R. v. Billam [1986] 1 W.L.R. 349; R. v. McCue [1987] Crim. L.R. 345; R. v. Gibson [1987] Crim. L.R. 346; R. v. Birch [1988] Crim. L.R. 182; R. v. Sullivan [1988] Crim. L.R. 188; R. v. Pawa [1978] 2 N.Z.L.R. 190; R. v. Puru [1984] 2 N.Z.L.R. 248; The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 and R. v. Robert Shaw (1986) 3 Cr. App. R. 77.
In particular, stress was laid upon the decision in England of Lord Lane L.C.J. in R. v. Billam [1986] 1 W.L.R. 349, and in New Zealand by Woodhouse P. of the Court of Appeal in Wellington, in R. v. Puru [1984] 2 N.Z.L.R. 248.
It is necessary to emphasise that these decisions, while very helpful, were delivered in cases in which the structure and matters before the courts were wholly different from the instant appeal. Both the Criminal Division of the Court of Appeal in London, in R. v. Billam , and the Court of Appeal in New Zealand, in R. v. Puru , were dealing with cases where a number of different decisions were brought before them for review or consideration, and where evidence was submitted of overall patterns or tendencies in the imposition of sentences within their jurisdiction for rape. The specific purpose of this form of multiple appeal in the case of R. v. Billam was to seek from the Criminal Division of the Court of Appeal a broad statement on policy, almost amounting to a range or tariff of appropriate sentences for rape of different kinds.
Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.
I would, however, adopt with approval the general propositions that neither a victim’s previous sexual experience nor the fact that she could be considered to have exposed herself by imprudence to the danger of being raped could conceivably be considered as a mitigating circumstance in any rape.
The mitigating circumstances in rape are indeed limited.
It would appear to be suggested under ground (c) of the appeal in this case that the lack of an element of premeditation could be considered in some way to be a mitigating circumstance. It is a relevant circumstance, though one, in my view, of very limited importance, but is better described, in my opinion, as the absence of aggravating circumstance, rather than the existence of a mitigating circumstance.
The only single mitigating circumstance which arises in this case, I am satisfied, is the fact that when interviewed by the Garda Síochána the appellant immediately admitted his complicity in the crime and made a full statement. His attitude at that time was followed by a plea of guilty.
A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of offence, a mitigating circumstance.
I have no doubt, however, that in the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.
Such an admission of guilt may, depending upon the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a judge imposing sentence to have some expectation that if eventually restored to society, even after a lengthy sentence, the accused may possibly be rehabilitated into it.
The necessity for consideration of this possibility has been underlined by the Court of Criminal Appeal in The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351.
Conclusion
With regard to the individual grounds of the appeal submitted, I have come to the following conclusions.
(a) The fact that this sentence was in excess of sentences which have been recorded in respect of the crime of rape, even if satisfactorily established to the Court, is not, in my view, a ground by itself for varying the sentence. For over one hundred years the maximum sentence provided by statute for the crime of rape is penal servitude for life. It must, therefore, follow that the imposition of a sentence of twenty-one years could not of itself be considered wrong in principle.
(b) What is described in this ground as the conventional period a person who has been sentenced to life imprisonment might expect to serve is a matter of a policy pursued by the Executive at given times and subject to variation at the discretion of the Executive. It cannot, therefore, in my view, properly be taken into consideration by a court in imposing sentence.
(c) I have already indicated that insofar as this ground might be considered as an assertion that the lack of any element of premeditation was a mitigating circumstance, it would be incorrect, but if it is directed towards a suggestion that an element of premeditation is an aggravating circumstance which did not apply to this crime, I would accept that it is true.
(d) I have already dealt with the importance which, in my view, exists with regard to a statement admitting guilt and a plea of guilty made by a person charged with rape. I am satisfied that a consideration of the principles enunciated on this ground, coupled with the desirability of contemplating that the accused should some day be rehabilitated into society, mentioned at ground (e), lead to a conclusion that notwithstanding the extraordinarily serious nature of the crime of rape and notwithstanding the multiple aggravating circumstances which surrounded this particular rape, it is possible to conclude that the sentence of twenty-one years imposed in the Circuit Court and affirmed in the Court of Criminal Appeal did not have sufficient regard to the admission of guilt and the plea of guilty. I would have little hesitation in upholding a sentence of twenty-one years on the facts of this case had this appellant put the victim to a trial and to the ordeal of giving evidence. When he did not, under circumstances from which it is possible to infer that he might have had some chance of escaping conviction for want of identification on a trial, it seems to me that the sentence is excessive. I have already emphasised the importance to be attached in a rape case to an early admission of guilt followed by a plea of guilty.
In these circumstances I would allow this appeal on the basis that the appropriate sentence for the offence in this case is seventeen years’ penal servitude. I would therefore reduce the period of penal servitude from twenty-one years to seventeen years, the period having commenced on the 8th October, 1985.

Walsh J.
I agree.

Henchy J.
I agree.

Griffin J.
I agree.

McCarthy J.
The offence was horrific; I accept the submission of counsel for the Director that the only circumstance omitted from the record of the judge’s consideration was the admission of guilt and the subsequent plea of guilty. I do not accept that Neylon J. did not, in fact, take this into consideration. The address of counsel for the several accused is not on the transcript; it is inconceivable that reliance was not placed upon this factor; it is equally inconceivable that the trial judge, one of great experience and known to give significant value to such a plea of guilty, did not take it into account. Mr. O’Flaherty, on behalf of the appellant, had advanced the other considerations that there was no premeditation as in some other cases of rape, and that the trial judge did not take account of the need for rehabilitation, the opportunity for which would be lost after such a lengthy period of imprisonment. There was no evidence of premeditation; this fact may be regarded as ruling out a possible aggravating feature. As to rehabilitation, in my view when the minimum appropriate sentence has reached a certain level, it is difficult to incorporate an allowance for rehabilitation by way of residual lessening of the total period.
The Court has been referred to a number of decided cases which contain, within themselves, a litany of like offences and the varying sentences imposed in respect of them, in England and in New Zealand. Helpful though any legal principles to be gleaned from these cases are, the sentences themselves in a myriad of single instances are of no guidance. I accept the several propositions advanced by the Chief Justice and identified with those of Lord Lane L.C.J. in R. v. Billam [1986] 1 W.L.R. 349, and I recognise the need to give guidance to trial judges as to the matters to be taken into account when assessing the penalty appropriate in any given case. I do not subscribe to what is apparently the view in England and New Zealand that there should be any particular minimum standard; there is a maximum – penal servitude for life. The trial judge, subject to due consideration of the matters specified by the Chief Justice, and taking into account what further matter may properly appear to be relevant in the particular case, should have a true judicial discretion as to the sentence appropriate in any case.
For my part, I find no error in principle apparent in this appeal; it may well be said that if a sentence is the wrong sentence, then that is an error in principle. Without expressing any view on that question, I am content to say that the penalty imposed, albeit of a severity apparently unknown up to now for offences of this kind within this jurisdiction, is not inappropriate for what the trial judge rightly described as an abominable case.

The People v Byrne, sub nom Director of Public Prosecutions v Byrne

[1995] 1 ILRM 279
O’Flaherty J
This is an application brought on behalf of the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 to review the sentence passed upon the accused, Christopher Byrne, on 19 January 1994 by the Central Criminal Court presided over by the then President of the court, Hamilton P. The sentence was one of ten years’ penal servitude in respect of two counts of rape and a sentence of ten years’ imprisonment on one count of buggery contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. The sentences are to run concurrently. It is sought to say that these sentences are unduly lenient having regard to all the circumstances of the case, the victim impact reports submitted to the court, the medical report on the victims as well as the oral evidence in the case.

S. 2 of the Criminal Justice Act 1993, so far as is relevant provides:

(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the court may either

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.

The court requested counsel for the Director of Public Prosecutions to submit any fact or circumstances which it was alleged on behalf of the director was taken into consideration by the trial judge in imposing the sentences and which was not relevant to the case or to any fact or circumstances which the director could submit was relevant to the case and was not taken into consideration by the trial judge in imposing sentence. In response to that request a submission dated 7 October 1994 was furnished to the court, a copy being supplied to the accused. It is right to say that Mr Haugh SC and Mr O’Hagan arguing the case on behalf of the Director of Public Prosecutions essentially have followed that submission. The submission was as follows:

On 19 October 1993 the respondent affirmed signed pleas of guilty on a number of charges on which he had been sent forward to the Central Criminal Court for sentence, by the District Court. The first charge on which he affirmed his signed plea was that he did between midnight on 11/12 July 1994 and 4.40 a.m. on 12 July 1993 at certain licensed premises rape, who, for convenience and to preserve her anonymity, the first woman.

On 26 November 1993 the facts of the circumstances of that offence were outlined in evidence by Sergeant Leo McGinn to the learned President of the High Court. The offence occurred on the night of the burial of the first woman’s mother. The respondent broke into her house while she was asleep and took her from beside her sleeping husband to the sittingroom of the premises. He had what looked like a white stick in his hand and he was asking for money. After a brief period in the sittingroom the respondent, with his hand over her mouth, brought that woman to what is known as the bar section of the building. He took off her panties and left his stick on the ground and took a knife from his pocket. He then raped her. He then left. The woman then left to raise the alarm by making a phone call from a neighbour’s house and as she did so the respondent grabbed her again as she was crossing the road, put a headlock on her and again brought her back across the road and forced her into her house. He then made good his escape.

The second and third charges on which the accused affirmed his signed pleas of guilty related to the rape and buggery of the second woman in the small hours of the morning on 13 July 1993, some 24 hours after the first offence had occurred. This woman was at the time 77 years of age and a widow and she lived alone in a certain part of the country. Again evidence as to the circumstances of these offences was given by Sergeant McGinn on the same occasion. This woman had retired to bed at about 11.00 p.m. and she was woken by the respondent standing in her room. He asked her for money and for a video. The respondent lay on the bed beside her and began to fondle her breasts. He tore her night attire almost the complete length of the nightdress. He threatened her with a knife. He raped her. He then tied a cloth around her mouth and stuffed part of it into her mouth as well as tying her hands with a belt. He ordered her to lie face down and he again threatened her with a knife. He then buggered her. He hit her a number of blows in the facial area.

The respondent was arrested on 16 July 1993. Whilst detained under the provisions of s. 4 of the Criminal Justice Act 1984 he made confessions to the investigating gardaí. He signed pleas of guilty in the District Court and affirmed those written signed pleas in the Central Criminal Court.

The accused had a previous conviction in 1985 for indecent assault and the circumstances of that offence were also outlined by Sergeant McGinn to the learned President of the High Court on 26 November 1993.

It is not submitted on behalf of the applicant that the sentence of 10 years’ penal servitude in respect of the rape of the first woman was per se unduly lenient having regard to the mitigating factors as properly found by the learned President of the High Court.

It is however submitted on behalf of the applicant that the sentence of 10 years’ penal servitude for the rape of the second woman and the sentence of 10 years’ imprisonment for the rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 (hereinbefore referred to as the buggery charge) were unduly lenient in that all sentences imposed were to run concurrently so that in effect no additional penalty or sanction was imposed in relation to the offences committed against the said second woman. Further or in the alternative it is submitted that those sentences which relate to the offences against the second woman were unduly lenient, having regard to the accused’s previous offence against the first woman and it is submitted that the learned President of the High Court failed to take this aspect properly or adequately into account. It is submitted that the offence against the first woman and the offences against the second woman were totally separate and unconnected and it is accordingly submitted that because no additional sanction or penalty was imposed in relation to the offences against the second woman that those sentences were unduly lenient.

There were prepared victim impact reports in respect of both women by Dr Lyster, who is a consultant psychiatrist. What will be set forth is a brief summary of some of his findings in regard to each case.

To deal now with the first one. This report sets out that this unfortunate woman suffered sleep disturbance with nightmares, the nightmares being of a consistent pattern of being trapped somewhere, with men everywhere and no means of escape. She tends to wake up at the same time each night, approximately 3 a.m., the time at which the incident occurred, sweating and extremely anxious and frightened. She has been taking sleeping tablets since the incident but despite this continues to have disturbed sleep.

Depressed moods since this incident . She complains of feeling depressed and has mood swings. She has lost interest in herself and in life in general.

Anxiety since the incident . This woman has suffered severe anxiety and worries constantly that she will be attacked again. She feels very vulnerable and barricades the doors with a chair or table. She has become obsessed with having doors and windows locked. She has been unable to go out socially since this incident and tends to avoid meeting people. She is unable to relax, unable to get any enjoyment from life.

Personality problems since this incident . This woman has lost confidence in herself, become paranoid, and has guilt feelings over what happened, blaming herself for not being able to prevent the attack but realised that her fear was so intense at the time she was overwhelmed and was unable to think rationally.

Since this attack she has low self esteem and feels dirty and tends to avoid meeting people as a result. She only feels safe with people she knows. Since this incident she has a dislike for men in general except for old fatherly type men and avoids answering the door.

Affect on the family since the incident . This woman states that her relationship with her family has changed and in particular that her ten year old son has been clinging excessively to her and does not want to let her out of sight. In September 1993 this boy did not want to separate from his mother and go to school and became very upset.

Affect of relationship with husband . This woman states that since this assault her relationship with her husband has altered and that she is no longer able to be intimate with him, as close contact with him invokes painful memories of the assault.

Changes in social life since this incident . This woman will not go out alone and always brings a family member with her for support. Prior to this she drove the car regularly into town and did her own shopping etc. Since this incident she has not driven the car and goes by taxi. She tends to avoid meeting people she knows since the assault and has become somewhat paranoid believing they comment about her.

That is a summary of what the doctor found in relation to his examination of the first woman.

The victim impact report on the second woman sets out the history of the actual assault and then the doctor relates that immediately following the assault she felt very shocked and afraid, was shaking all over, her sleep was disrupted but she had no nightmares. At the time of the assault she thought she would be killed, she felt helpless and she thought the accused was going to stick a knife in her and was very frightened. She knew she had no way of saving herself and that if she shouted she would not be heard. She saw that he had a slip in his hand which she believed he would tie over her mouth if she shouted. He then relates the woman’s personal history, that she is a widow, her husband having died seven years before. He then relates that she was a very independent, active woman and did her own shopping, went into town once a week by bus and so forth. His summary in relation to this woman is that she had been severely traumatised but had made a remarkable recovery. She still continues to suffer residual effects of this trauma, being anxious, being fearful of further assaults. The fear is worse in the dark; there is a restriction of social life in consequence of the attack. She has headaches, forgetfulness and loss of confidence in herself. He concludes that the woman was severely traumatised during this incident and she is now suffering the consequences of this assault and is aware of her own vulnerability. She continues to have fears of a further assault and in his opinion this fear will remain with her for the foreseeable future.

One comes then to the statement of the accused. He made this statement immediately after his arrest and it can be summarised by saying that he made a full and frank confession of his involvement in both assaults.

Dr Art O’Connor, the psychiatrist, concluded that the accused had been in and out of prison since around 1987 and his longest sentence was for two years. He finished that sentence in February 1993 and was taken into custody again on the present charge on 16 July 1993. He has over the years abused drugs such as LSD, cannabis and various prescribed sedative drugs which he names. They are all sedative drugs similar to valium. The accused told Dr O’Connor that he did not know the women whom he had assaulted and that he was ‘out of his head’ because of alcohol and tablets. Dr O’Connor concluded that mental state examination reveals no evidence of serious psychiatric illness such as schizophrenia or depression. He is of normal intelligence. He is quiet but he is well able to discuss his problems and his situation. He is very unhappy about his present position and because of what he has done. His family are also quite upset but they seem to be supporting him. He is low in mood from time to time since he has come into prison but he is not suicidal.

Ms Rita McArdle, probation and welfare officer, in a report of 25 November 1993 concluded as follows:

Following assessment of the defendant and his circumstances, a picture emerges of an inadequate young man, with poor social skills and limited intellectual and personal resources. His life to date has been marked by school failure, illiteracy, an absence of any employment experience and an aimless, unstructured existence. These difficulties have been further compounded by chronic alcohol and drug abuse and criminal involvement. The only apparent positive feature in his life is his reported experience of a happy family life. While family members are presently extremely shocked and have not visited him to date in custody, one member states that continued family support will be available to him. He does not appear to have any insight into his behaviour but accepts his guilt in these very serious offences before the court. I believe in his present state he is at risk in the community. He is a man who will require extensive and long-term professional intervention and counselling, if any positive change is to be effected in his life.

The learned trial judge in sentencing the accused concluded that the charges were very serious charges. He went on to say:

I have heard the evidence with regard to the circumstances from the arresting guard and there is no dispute about them. I have had the benefit of reading the psychiatric report prepared by Dr Art O’Connor and in addition I have had the benefit of two reports, one in respect of each of the injured parties, from Dr Lyster, consultant psychiatrist. By virtue of the terms of s. 5 of the Criminal Justice Act 1993, the court is obliged in determining sentence in respect of the offences to which that section applies to take into account any effect whether long-term or otherwise of the offences in respect of whom the offences were committed. This is an obligation placed on the court and is in addition to the other matters which the court is obliged to take into account in determining sentence. These considerations are well settled and there is no need for me to state them in court in any great detail.

I have had regard to the submissions made by Mr Grogan SC for the accused, and I am obliged to take into account also the manner in which the accused has approached this case by signed pleas of guilty in the District Court, he has not sought to change his pleas before this Court as frequently happens, and to that extent he has done everything possible to lessen the effect of the crime on the two ladies concerned; and as I say I am obliged to take that factor into account and I do. The offences, as I say, particularly the offences of rape and buggery are serious offences and this is not in any way to belittle the seriousness of the other offences in respect of which the accused has signed pleas of guilty. I don’t propose in detail, or at all, to set forth in the course of this judgment the circumstances in which the rapes occurred. They are dealt with in the statement made by the accused of which evidence has been given, and also they are set forth in fairly considerable detail in the reports prepared by Dr Lyster to which no exception has been taken by counsel on behalf of the accused.

Were it not for the plea of guilty I would have considered that the appropriate sentence in respect of the rape and buggery cases to be fourteen years’ imprisonment in respect of the buggery and penal servitude in respect of the rape charges, but taking into account, as I do, the way in which the accused has approached the case and conscious of my obligations not only to him but to society and to the victims of these attacks, I would consider that a fair and reasonable sentence to be imposed in respect of the charge of rape of the first woman to be ten years’ penal servitude, and I sentence him to ten years’ penal servitude to date from today. And I have taken into account the fact that he has been in custody since July, and I am sentencing him to ten years’ penal servitude, and I will impose a similar sentence in respect of the rape of the second woman, and I sentence him to ten years’ penal servitude. And in respect of the buggery charge in respect of the second woman, I will sentence him to ten years’ penal servitude. [ recte imprisonment].

The essential submission advanced before us on behalf of the Director of Public Prosecutions is that the accused should serve an additional length of sentence because the court was concerned not with the rape of one woman but of two victims within a short space of time.

What is for resolution before us is whether the sentence imposed in respect of the offences committed against the second woman are in all the circumstances, in the words of the section, ‘unduly lenient’.

Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate.

In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was ‘unduly lenient’.

Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.

Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.

There will be cases where the question to be resolved is whether a monetary penalty, a suspended sentence or a sentence of a short term of imprisonment can be categorised as ‘unduly lenient’ and, it may be, there will be cases in that category which will admit of a ready resolution.

But in the case of Christopher Byrne it has to be observed that by any standard a sentence of ten years’ incarceration is a substantial one. Prima facie it could not be categorised as ‘lenient’, let alone ‘unduly lenient’.

To deal with the circumstances of this case which have already been outlined, while every rape is an evil and horrible act and a gross violation of womanhood, some rapes will have more significant aggravating features than others. Mr Haugh SC has submitted before us, as we think correctly, on any scale the rapes in this case must be in the higher range as having many aggravating factors. There is the fact that the attacks took place in the dwellinghouses of the women at night. That there was the use of a knife as an additional element of force to the actual physical act of rape. The court also has had regard to the age and circumstances of the second woman, and the second offence that was committed against her.

Then one has to assess the accused’s situation. It has already been detailed. This young man, aged 24 years, was very much at the mercy of drink and drugs but the single outstanding matter in his favour is that he confessed to these crimes immediately with, as Mr Grogan has submitted, extraordinary speed. He never departed from that position. He signed pleas of guilty in the District Court and, once again, he did not retreat from that position when he was sent to the Central Criminal Court for sentence.

The women on being asked whether they wished to come to court as is required under the legislation were absolutely clear that they did not want to come to court at all. It is worth reiterating again what the significance of an early confession followed by a plea of guilty is as set forth by Finlay CJ, speaking for the Supreme Court, in the case of People (DPP) v. Tiernan [1988] IR 250; [1989] ILRM 149 and reiterated with increased emphasis in the more recent decision of the Supreme Court in Director of Public Prosecutions v. G. [1994] 1 IR 587, in which the unanimous judgment of the court was delivered by the Chief Justice on 11 November 1993. To recall what was said in Tiernan, the Chief Justice stated (at pp. 255/153):

I have no doubt, however, that in the case of rape, an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.

Here the learned President said that if there had not been a plea of guilty he would have imposed a sentence of 14 years.

Then we are urged to increase the sentence because of the proximity of the attacks on the two women. Having committed the first attack, leaving aside altogether the previous conviction for indecent assault some years before, here he is engaged in a second attack on a second woman. However, the court takes the view that it might have been worse if these attacks had taken place over a substantial interval of time. The case made on behalf of this accused is that he was obviously going through a particularly aberrational period as a result of being engaged in alcohol and drug abuse.

If we were to increase the sentence it would have to be a substantial figure such as the figure mentioned by the learned President, namely 14 years and then one would have to ask: what would the gross figure have been if there had not been the mitigating factor of the confession and the pleas of guilty and one would have to add another four years at least bringing it to the extremely high figure of 18 years.

We are satisfied that the learned trial judge brought all his immense experience to bear on this case. Had he expressly differentiated between the two offences, he might have imposed (as Mr Grogan suggested as a possibility) a sentence of eight years’ imprisonment in respect of the first woman and a sentence of ten years in respect of the second woman. It is difficult to see how this Court could have interfered with such a sentencing policy. It is clear that the learned President gave effect to that differentiation in practice by imposing a sentence of ten years’ imprisonment; he might have done it the other way but we are clear in our minds that he brought all the correct principles to bear to this case. It has not been suggested that he took into consideration anything that he should not have taken into consideration.

In the circumstances the court declines to interfere with the sentence that was imposed in this case and refuses the application of the Director of Public Prosecutions.

People (DPP) v Keane

[2007] I.E.C.C.A. 119

JUDGMENT of the Court delivered by Murray C.J. on the 19th day of December 2007

This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the Respondent in the Central Criminal Court on the 12th March 2007 following his conviction by the jury of the offence of rape. The sentence imposed by the learned trial Judge was one of three years imprisonment suspended on his being of good behaviour in his own bond for €1,000 for a period of five years. (He was also certified as a sex offender and placed on the Sex Offenders Register).
The D.P.P. brings this application as an independent public servant authorised by law to prosecute crimes and offences pursuant to an Act of the Oireachtas adopted in accordance with Article 30.3. of the Constitution which otherwise vested the role of prosecutor in the Attorney General.

As in virtually every country, the Courts established by and in accordance with the Constitution have a hierarchal structure. This permits, inter alia, access to the Courts at first instance and on appeal to a higher Court whose decision is then final and binding. Exceptionally there may be a further appeal to a higher Court again, usually in limited circumstances, in one form or another, such as an appeal from this Court to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924.

Courts of appeal have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process. Legal systems provide for an appeal from Courts of first instance not least because it is not assumed that Courts of first instance are infallible no more than it is assumed Courts of appeal are. There is no human institution that enjoys such a brave assumption. Indeed when the Supreme Court relaxed the doctrine of stare decisis (in AG –v- Ryan Car Hire Limited 1965 I.R. 642) Kingsmill Moore J. noted “If it could be safely assumed that all members of a Supreme Court were perfectly endowed with wisdom and completely familiar with all branches of the law, to treat their judgments as infallible would need but little justification. Judicial modesty has refrained from putting forward such a claim … .” Moreover, an appeal by a party who, rightly or wrongly, is dissatisfied with a decision of a Court of first instance, in addition to providing the party with the benefit of a case being heard or examined a second time by another Court, also brings finality to individual disputes before the Courts which is one of the objects of the administration of justice.

That is the structure which we are constitutionally bound to respect.

As regards sentencing, for a very long time only the convicted person had a right of appeal against the sentence imposed on an accused following conviction on indictment. There were historical policy reasons for this which it is not necessary to consider here. Suffice it to say that, for public policy reasons, the Oireachtas decided in 1993 that the Director of Public Prosecutions should, in the circumstances referred to in s. 2 of that Act have a right to apply to the Court of Criminal Appeal to review the sentence imposed by the trial Court. That is the position in law.

Subsection (1) of that section provides “If it appears to the Director of Public Prosecutions that a sentence imposed by a Court … on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”.

Subsection (3) provides that on such an application this Court may either quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate being a sentence which could have been imposed on the accused by the sentencing Court. Alternatively, it may refuse the application of the D.P.P.

Having imposed sentence in this case the learned trial Judge went on to advise Counsel for the respondent that he should warn his client that “the Director is very trigger happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter.”

The Court considers this reference by the learned trial Judge to have been unfortunate as it may be understood as trivialising or lacking in the respect which is due to the process of appeals designated as appropriate by the Oireachtas. Section 2 of the Act of 1993 established a process of access to a court of appeal on the part of the D.P.P. in respect of sentences imposed by the sentencing Court. A Court should avoid using language that might be taken to suggest the denigration of the exercise of a statutory function of appeal. Moreover no finding was made or any conclusion pointed to which could in any sense justify the use of language suggesting that the right of appeal was being abused, which in any event is essentially an issue for the Court of Criminal Appeal.

On the contrary, the Director’s application in this case far from being an abuse of the process of the Court is, as the Court’s conclusions set out below in this judgment demonstrate, one which is well founded.

Background Facts

The offence of which the respondent was convicted is that he did, at a time unknown on the night of the 29th or 30th May 2005, at a certain address in Ennis, Co. Clare have sexual intercourse with a female person who at the time of the intercourse did not consent to it and at the time he knew that she did not consent to the intercourse or was reckless as to whether she did or did not consent to it, contrary to common law and as provided by s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act, 1981.

It should be noted at this stage that subsequent to the imposition of the suspended sentence by the Court of trial the respondent was brought before that Court again and, after the learned trial Judge had made certain findings of fact adverse to the respondent, he set aside the suspension of the respondent’s sentence and ordered that he serve the term of three years imprisonment. This latter Order of the trial Judge was in turn appealed to this Court by the respondent. That is a separate issue with which the Court is not presently concerned. The sole question before the Court for present purposes is whether the application by the D.P.P. pursuant to s. 2 of the Act of 1993 is well founded.

The essential facts concerning the rape of the victim were not in dispute at the trial although the accused maintained his plea of not guilty throughout. From the outset of the Garda investigation into this offence, shortly after its commission, and throughout the trial the stated position of the respondent was that he had no recollection whatsoever of the events immediately surrounding its commission due to the fact that he had earlier, during the evening prior to the offence committed, consumed a considerable amount of alcohol and also taken some drug described as MDMA and referred to in the trial as being a form of ecstasy. There was in any event cogent evidence from the victim herself as well as expert evidence which showed that the DNA profile derived from a semen sample taken from the victim matched the DNA profile of the respondent.

The victim, Miss Y, was at the time of the offence a 33 year old single woman who lived on her own with three young children on a housing estate in Ennis, Co. Clare. The children were aged about 10, 8 and 4 at the time. At that time Miss Y had been “essentially living with”, as it was put at the trial, her boyfriend Mr. M since September 2004. He had previously been a boyfriend of Miss B. At the time of the offence Miss B’s boyfriend was the respondent. Mr. M was not residing in the victim’s house around the time of the offence because of an argument which had occurred between them. Miss B lived in a house on the same housing estate nearby to Miss Y’s.

Although the respondent and Miss Y knew one another from the locality and mutual friends, especially through Miss B, and he had previously been in her house, there had never been a close or intimate relationship between the two of them.

On the evening of May 29th 2005 the victim, Miss Y, had put the children to bed by 9.30 p.m. and decided to go to bed early herself shortly after that.

She suffered from severe deafness since childhood and always wore a hearing aid but did not do so when she went to bed because it was uncomfortable to wear in bed. She always slept with the light on and had a landing or bathroom light on with the door to her own bedroom left open. Due to her deafness she would not hear the children if they woke up in the middle of the night but if they came out of the room the lights enabled them to readily see her in her bed and they could come straight into her.

The offence was committed between midnight and 1.00 a.m. There was evidence at the trial that Miss Y woke up and was conscious of a male person in her bed who was cuddling up to her and had his arm around her waist. She had had an argument with her boyfriend M. and she thought that “[M] is back that is good”. There was no conversation and she went back to sleep. The next thing which occurred was that she woke up with a man on top of her having sex with her. Initially she assumed it was M but soon realised that it was not, noticing, inter alia, that unlike M the man had tattoos on his arm and he had different hair. She panicked and pushed the man off her and felt his penis sliding out of her. She got out of bed. She found the bedroom door had been closed and on running out of the room she found the lights had also been turned off outside. She turned on the lights and stood in the bedroom doorway and saw the respondent sitting on her bed with no pants on. She screamed at him and said “Adam what are you after doing, I’m telling …(Miss B the respondent’s girlfriend). She also told him she was going to call the Guards. She later told the Guards that he looked dazed and in her evidence said he gave the impression that he felt there was no great problem. Miss Y left the house in a state of panic failing to make contact with Miss B, spoke to another person on the phone and eventually the Gardai arrived. The respondent had left the house by this time. There was also evidence that the lock on the rear door to Miss Y’s house had been broken for some time so that over a period it could be opened at any time from the outside and that this was the manner in which the respondent had gained entry to the house.

After leaving the victim’s house the respondent went to the nearby house of his girlfriend, Miss B. Having woken her up and been admitted to the house he gave no explanation, although asked for one, as to why he had called on her so late and had not gone to his own home. Miss B told him to sleep on the couch, which he did. She thought he was drunk. Not long afterwards three Gardai arrived to interview the respondent. He was asleep and was woken up.

The respondent, who did not give evidence at the trial, told the Gardai in the course of interviews subsequent to his arrest how he had drunk a considerable amount on the Sunday evening but could remember nothing from a time just before he left a bar where he had been drinking to the time when he woke up in his girlfriend’s house with three Gardai present. He said that when drinking he had put a powder into his drink, which he understood to be something called MDMA. When asked about the allegation that he had sexual intercourse with Miss Y without her consent he stated that he had no memory of this. He could not remember. Asked if it was possible he could have done this he stated “Well in my personal opinion, I don’t think it is possible for me to do something like that, because in all my life I never raised my hand to a girl or never been abusive towards a girl either, it goes against everything I stand for.” He told the Gardai that he could not remember because he had blacked out. He had blacked out due to drink many times before. He also told the Gardai that he knew Miss Y and had been to her house a couple of times.

Sentencing

In imposing sentence the learned trial Judge made particular reference to the case of The People (D.P.P.) –v- N.Y. (2002 4 I.R. 309). That was a decision of this Court which imposed a suspended sentence for two offences of rape, in the particular circumstances of that case and in doing so allowed an appeal against the sentence imposed by the learned trial Judge in that case, which is the same trial Judge as in this case.

In imposing sentence in this case the learned trial Judge observed that

“It is the experience of this Court that a surprising number of cases come before it in which a woman, for example, at a party goes to a bedroom to rest and goes asleep and comes to, to find somebody inside her engaging in unlawful sexual congress. In the N.Y. case, which has been referred to, I expressed the view that juries were reluctant to convict in these cases and that was certainly so for a period of time. It does seem to me now that more juries are convicting in these cases. Their frequency is quite surprising and clearly there needs to be substantial protection in place for a predator wandering around the bedrooms at parties and engaging in unlawful sexual congress of this kind and also the other situation would be where somebody through drinks, drugs or a combination, drinks himself into a situation where he does not know what he is doing”.
He then went on to add:
“In the N.Y. case I imposed a sentence of four years imprisonment which Mr. Denis Vaughan Buckley described on behalf of the Prosecution as moderate and was intended by me to be moderate. The Court of Criminal Appeal set aside that sentence in its entirety. It indicated that a trial judge in the case of anal and vaginal rape had to direct his attention in the first instance to a suspended sentence and it also took issue with my having said I sought to be consistent with myself.” (The reference to four years was then corrected to three years which was the sentence imposed in NY, nine months of which was suspended).
In proceeding to impose sentence the learned trial Judge added:
“Having regard to the approach taken by the Court of Criminal Appeal to this type of offence in the N.Y. case, I have to ask myself whether or not I would be comfortable if I imprison this particular accused who is a young man with no previous convictions whose attitude was that he thought what he did was out of character, what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibilities in the matter.”
The learned trial Judge added:
“This accused has no previous convictions, I would think that from his experience in this case he is unlikely to offend again. I think it necessary that it come down clearly from this Court that people cannot wander around the bedrooms and behave in this predatory fashion …”
The learned trial Judge expressed the view that the sentence of 3 years which he imposed in the N.Y. case was a moderate and lenient one and was so described by Counsel for the D.P.P. It was, he noted, set aside in its entirety by the Court of Criminal Appeal.
“I would not be comfortable if I sentenced this man in the light of what happened in the N.Y. case. He is certificated as a sex offender and remains certificated as a sex offender but entirely by reason of the approach taken by the Court of Criminal Appeal I sentence him to 3 years imprisonment suspended on his being of good behaviour in his own bond of €1,000 for a period of 5 years.”
Decision
As is clear from the above the learned trial Judge based his decision on the N.Y. case, and saw that as determining his approach to the sentencing of the accused in this case.

At the trial and in the course of argument in this appeal, Counsel for the D.P.P. had made detailed submissions differentiating the N.Y. case from the facts and circumstances of this case. It was submitted on behalf of the D.P.P. that this case was one which required a custodial sentence.

Counsel for the respondent submitted that the sentence imposed by the learned trial Judge was one which he was entitled to impose having regard to the circumstances in which the offence was committed and the circumstances of the accused. He referred to all the mitigating factors which the learned trial Judge was entitled to take into account. Having done so, it was submitted, the sentence could not in all those circumstances be considered unduly lenient.

Before dealing with these issues the Court considers it appropriate to refer to the general approach which should be applied when imposing a sentence for the crime of rape.

For a very long time the crime of rape has been considered as one of the most serious offences in the criminal calendar. Almost invariably it attracts a substantial custodial sentence. A convenient starting point to the case-law on the gravity of this offence is the oft-cited judgment of Finlay C.J. in The People (at the suit of the D.P.P.) –v- Edward Tiernan [1988] I.R. 250 at 253 when he stated:

“The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In Attorney General –v- Conroy 1965 I.R. 411 this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence.
The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of life long duration.

Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.”

Finlay C.J. went on to reiterate the long standing principle that the offence of rape must normally attract a substantial custodial sentence. He did so in these terms:
“All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment.
Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”

In so stating Finlay C.J., whose judgment was that of the majority of the Court, was acknowledging that the ambit of a Judge’s obligation under the law to impose a sentence which meets the particular circumstances of a case and of the accused person, even for an offence as grave as rape, does not in principle exclude the possibility of a non-custodial sentence in wholly exceptional circumstances. The wholly exceptional circumstances must be such as to justify a departure from the norm of a substantial custodial sentence.
However the Supreme Court in that case did not seek to set out a standard scale of sentences which might be appropriate in cases of rape. Finlay C.J. noted:

“…having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused I would doubt that it is appropriate for an Appellate Court to appear to be laying down any standardisation or tariff of penalty for cases.”
In order to address the issues in this application it is necessary to consider in some detail the judgment in the NY case.
Facts in the NY Case

The judgment of the Court of Criminal Appeal in the N.Y. case discloses that the appellant in that case had been drinking in a pub earlier on the evening of the rape although drink did not play a major role in the offence. He left the pub in the small hours of the morning and from the street noticed that there was a party in an upstairs flat. There was apparently some communication from the street between him and the people in the flat as a result of which he was invited to join the party. It was a small flat and there were a number of young people at the party. Some time after 3.30 a.m. the appellant became engaged in conversation with one of the girls at the party who was also one of the occupants of the flat. They started kissing on a bed in one of the bedrooms. As the Court of Criminal Appeal in its judgment (Fennelly, Lavan and Abbott J.J.) noted

“At this stage, according to the accused several people were “crashed out”. In very unclear and disorganised circumstances the accused and the victim ended up sharing a bed in an extremely small bedroom (probably about 8’ by 8’) with two beds. The accused does not suggest that he and the victim shared that bed in any sense from which consent to sexual intercourse could be inferred. There were people asleep in another bed. The accused removed clothing from the lower part of his body. However, it is clear, on the best account from the point of view of the accused, that the victim, having engaged in kissing with him, fell asleep lying on her stomach. There were other people asleep in the room.
The offences were committed while the victim was asleep. The accused fondled the victim and became sexually aroused. He committed both vaginal and anal rape upon her. He did not ejaculate. He knew she was asleep. There was no question of her consenting to any aspect of this behaviour.

The victim woke up with a jolt, realised what was happening to her, became shocked and distressed and told the accused to go home. She ran from the room and, apparently, confided in her friends.” …”The accused acknowledges that he knew he had gone “too far”. “ …”He found paper and wrote a note saying “sorry to offend but my fault whatever I did”. He did not meet the victim and left the flat.” The Court also recited that “Having been traced and interviewed by the Gardai, the accused made a full statement admitting the facts of the case and his responsibility for them in their entirety. He expressed regret for what he had done. According to the Garda evidence, the accused was very remorseful. When offered the chance of an identification parade, he said it was unnecessary. He accepted his guilt and did not wish to put the victim through further trauma. As already stated he made no attempt to claim that the victim had consented to his behaviour. He has maintained this position at all times. He has fully accepted his entire responsibility for the crimes he committed.”

As regards the victim the Court noted:
“The victim was aged 19 at the time of this rape. She was a University student. She suffered psychologically rather than physically from the rape. The psychiatric report diagnosed her as suffering from depressive illness, necessitating the taking of anti-depressants, due to the rape, but after a year she had fully recovered. She declined her statutory right to give evidence.”
The Court also had particular regard to statements of the learned trial Judge when imposing sentence and cited from his decision as follows:
“I have indicated in many cases recently that every sentence passed in this court must be consistent with every other sentence passed and that in broad terms the sentences to be imposed should be predictable. I am dealing here with two cases of penetrative rape. The sentence I am going to impose in this case is less than what might be predicted from the document which I term the annual report of this court in which all sentences passed by it are set out.
There have been a significant number of cases coming before this court in which girls, young girls, young women go to sleep at a party and say that when they woke up they found somebody inside them. Juries have been remarkably reluctant to convict in this sort of case and by and large, when this sort of case has gone to trial, it has resulted in an acquittal and this is at the hands of average, evenly sexually mixed juries. It seems to me that if this case had gone to trial and taken the usual course that happens in these cases and resulted in an acquittal, that the trauma of that would probably be more damaging to the victim in this case than anything that happened on the night. The accused in this case immediately regretted his actions and at the scene, left a note behind apologizing, effectively identifying himself. He cooperated to a remarkable degree and took every step he could to spare the victim NY further injury or trauma. This has all to be taken into account. On the other hand, I am nevertheless left in the position that I am dealing with two penetrative offences of rape and that cannot be ignored.

He is of previous good character and no doubt had a great future ahead of him. He was of an enquiring mind, obviously, and a great traveller and the effect of what I have to do will be devastating for him. I certify him as a sex offender, as I am required to do under the Sex Offenders Act, 2001. The prosecution are not in this case seeking a post-release regime under the Sex Offenders Act, 2001, which says a lot in itself. At the end of the day, however, I still have to have regard to the nature of the offences and the penalties imposed in general by this court. Accordingly, on each count I impose a sentence of three years imprisonment to run concurrently. Having regard to the fact that he has taken proactive steps not to occupy a trial date and accordingly left a slot available for the court to deal with another person in which it has a backlog of sixteen months rising, I give him the usual consideration which I give to everybody else in this situation and on that account unconditionally suspend the final nine months of the sentence.”

The first question which the Court of Criminal Appeal addressed in that case was whether there had been an error of principle on the part of the learned trial Judge when imposing sentence. It acknowledged that the crime of rape is one of the most serious crimes in the criminal calendar and that normally the offence called for the imposition of a custodial sentence. The Court then went on to examine, not the period of custody imposed, but the process or approach adopted by the trial Judge to the issue of sentence.
It went on to state:

“Nonetheless, the Court imposing sentence must not deprive itself of the possibility of identifying the exceptional case where a custodial sentence may not be warranted. It is a truism that the Courts must sentence the offender and not the offence.”
The Courts then stated:
“This Court considers that, in this case, the trial Judge may inadvertently have given the impression that he was acting on the constraint of a rule mandating a custodial sentence.”
The Court added:

“The trial Judge attached great weight to the need to be “consistent” and “predictable” and later with the need to “have regard to the penalties imposed in general by this Court. In these passages, he does not appear to acknowledge the possibility that a non-custodial sentence may be warranted.”

Later in its decision the Court went further and stated:
“This Court considers that the trial Judge closed the door even to the possibility of a non-custodial sentence, by insistence on the need for consistency with the sentences imposed in the Central Criminal Court. Thus, he approached the question of sentence in this case without leaving open the possibility that this was an exceptional case which a non-custodial case (sic) could be warranted.”
It is important to note that the Court in that case first of all identified an error of principle in the process of sentencing rather than an error in principle in the actual sentence imposed. That is to say, the closing of the door on even a consideration of the possibility of a non-custodial sentence. It did not conclude that the sentence actually imposed by the trial Judge, three years with nine months suspended, was itself wrong in principle. That was not the ratio of the decision. If the Court of Criminal Appeal in the NY case had concluded that the trial Judge had not committed an error of principle by excluding the possibility of a suspended sentence, but indeed had considered that option in the circumstances, it might well have left stand the sentence imposed as falling within the range of sentence open to a trial Judge to impose within the ambit of his or her discretion. It is long established that a sentence is not wrong in principle simply or only because the Court of Appeal might have imposed a greater or lesser sentence if it was itself acting as a sentencing Court.
That was the approach adopted by the Court in that case. As the Court itself put it “Having reached the conclusion that the trial Judge erred in this way, this Court must now consider the appropriate sentence.” The Court also stated “The Court must in these circumstances impose such sentence as it thinks appropriate at this time.” (emphasis added). That is provided for by s. 3 of the Criminal Procedure Act 1993 which provides that where the Court quashes a sentence it may impose such sentence as it considers appropriate.

Thus, having set aside the sentencing decision of the trial Judge on the basis of an error of principle in the process of sentencing the Court then had to substitute a sentence on the basis of its appreciation of all the particular circumstances of the case at that time. In short it was acting as the sentencing Court as if it was sentencing the accused ab initio but taking into account that he had already served seven months in prison.

In imposing sentence the Court started from the position that the two counts of rape to which the accused had pleaded guilty “would normally unquestionably merit a substantial term of imprisonment”. It took into account that the appellant in that case had in fact served a term of imprisonment of over seven months and that he would bear the stigma of being registered as a sex offender pursuant to the Sex Offenders Act 2001. It then concluded:

“His early, indeed immediate remorse, his exceptionally honest acceptance of responsibility, including his plea of guilty, and his general good character must weigh in the balance in his favour. It is of note that such an experienced trial Judge as Carney J. should pronounce thus: “He co-operated to a remarkable degree and took every step he could to spare the victim any further injury or trauma.” All of these matters persuade the Court that this is an exceptional case in all the circumstances, the Court will not interfere with the length of sentence imposed by the trial Judge, but it will suspend the balance of the sentence on terms to be entered by the accused.”
In the result the sentence served by the accused was 7 months rather than the 27 months envisaged by the trial Court. Accordingly it is clear that the first and central point of the decision, as far as the Court in the NY case was concerned, was that the exceptional circumstances of that case meant that the sentencing Court should not have excluded the possibility of a non-custodial sentence, notwithstanding that the starting point for a sentence for the crime of rape is normally a custodial sentence. Having considered itself bound to set aside the sentencing decision of the trial Judge on that ground the Court was then required to impose a sentence on the basis of its appreciation of the exceptional circumstances of the case as matters stood at the time of the appeal. Having made its own appreciation the Court suspended the remainder of the appellant’s sentence. That represented the Court’s appreciation in that particular case of the exceptional circumstances. Those exceptional circumstances stemmed not from one circumstance but from each and every element of the combined circumstances which the trial Judge himself had identified when imposing a very modest sentence in the court of trial.
In exercising its own appreciation in the NY case the Court did not decide that a custodial sentence of some degree would always be wrong in principle in similar circumstances. The principle in that case was decided in the first part of the judgment namely that the possibility of a suspended sentence, in the wholly exceptional circumstances, should not automatically be excluded at least from consideration.

So far as sentencing generally for the offence of rape is concerned a sentencing Court must have regard not to one individual case but to the range of cases, some of which have been cited here, governing sentences in such cases and then exercise its own discretion having regard to all the circumstances of the case actually before it.

In the present case the trial Judge in the course of sentencing stated that the NY case“indicated that a trial Judge in the case of anal and vaginal rape had to direct its attention in the first instance to a suspended sentence …” and went on to state “Having regard to the approach taken by the Court of Appeal to this type of offence in the N.Y. case …”

It must be said that the NY case, as is patently clear, did not indicate an approach to be taken with regard to a “type of offence” or with regard to rape generally (other than to say that it should normally involve a custodial sentence) but indicated an approach which should be taken with regard to a case of rape in which there are wholly exceptional mitigating circumstances of the nature referred to in that case.

Moreover, this Court, in The People (DPP) –v- G.D. [2004] IECCA 17, in its judgment delivered by McCracken J. (with Gilligan and O’Leary J.J.) found it necessary to refer to a statement during the course of sentencing by the trial Judge in the G.D. case to the following effect:

“The probation officer, who furnished an extensive report, I think proceeded on the basis that this was a case where a non-custodial sentence could not or would not be imposed, but the Court of Criminal Appeal seems to have directed that the starting point of ones consideration as to whether it can be dealt with on that basis or not.”
In the G.D. case the Court, commenting on that observation, stated:
“This Court is satisfied that the Court of Criminal Appeal did not give any such direction in the N.Y. case. In fact, that case emphasised that a custodial sentence should normally be imposed for such a crime.”
In the present case the learned trial Judge appears to have ignored this dictum of the Court.
Neither did the Court in the N.Y. case take issue with the principle that consistency in sentencing is an important part of the sentencing process. What it did conclude is that it should not exclude from consideration by the trial Judge sentencing options related to the particular circumstances of the case. To recall the words of Finlay C.J. in D.P.P. –v- Tiernan:

“…the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, …”
The Court is also satisfied that the facts and circumstances of this case are not, for sentencing purposes, similar to the particular combination of facts and circumstances which arose in the N.Y. case.
Aggravating Circumstances

Without in any sense taking away from the seriousness of an offence of rape committed, in combination with other surrounding circumstances, by anybody who, having consensually gone to bed with a woman at a party, to which he was invited, commits the offence of rape, the offence in this case was committed in wholly different circumstances with different and more aggravating elements.

The victim in this case was a mother of three young children who, having put them to bed on the night in question, herself went to bed in the security and safety of her own family home. If there is one place in everyday life that a person needs to, and is entitled to, feel safe and secure it must be in his or her own home at night. This must be ten times more true for a mother responsible for three young children asleep in bed.

The respondent has been found criminally responsible for invading her family home and raping that young mother in her own bed with her children sleeping nearby.

The respondent had known where she lived, had been in the house before and knew that she was hard of hearing. He, uninvited and illegally, entered the house through a back door, which for some considerable time could not be locked due to a defect in the lock. He climbed upstairs, turned off the landing light, which had been left on to enable the children asleep to have easy access to their mother’s bedroom in the case of need. He surreptitiously entered her bedroom, crept into her bed and raped her. He violated the mother, her home, her family wellbeing and the sense of security which she was entitled to expect for herself and her children in that home.

Thus this was not only a violation of the victim herself, with all the implications referred to at the outset of this judgment, but also the sense of security which citizens feel they have for themselves and their children in the safety of their own home. The fact that the rape took place in these circumstances was to have lasting additional and devastating effects on the victim as well as very negative consequences for her children.

The evidence before the Court of trial concerning the impact of the crime on the victim included the fact that she soon moved to her parent’s house with her children where she remained in bed for six weeks during which time she was distressed by media coverage of the rape. She never returned to the house where the rape occurred, as she would have found it too distressing to do so. She reported that she would never have felt safe there again and that she had lost her independence. That is why she had to go back living with her parents. She eventually left her parent’s house and moved to another rented house but did not feel safe there so she moved again. She now has an alarm in the house which she is living in with two guard dogs and the dogs sleep in the bedroom.

Following the rape she has found it difficult to have an intimate relationship with her partner and that relationship subsequently ended. She is fearful going anywhere on her own. She distrusts men with the exception of her father, brothers and former partner.

She found giving evidence at the trial distressing. She also found being away from her children for the week of the trial distressing. The evidence disclosed that she had difficulty in coping with counselling available to her, as she found it stressful.

There was also evidence that she felt traumatised by the rape and felt her life was ruined. She was in a constant state of alertness and is easily startled. Sometimes she stays in bed because she cannot be bothered to get out of bed and can go for days without eating. She had little energy and media accounts of other sexual cases distress her because they remind her of her own.

She told the Court of trial that the rape “has had a huge impact on my life and my kids’ life”. She and her children had to leave the house which she had lived in for nine years following the rape and she was distressed about that because they had to move to a new area and both she and her children lost the friends they made in that area.

In effect, she and her children were driven out of their own home and neighbourhood by the actions of the respondent. All this seems to have been ignored by the trial Judge.

She has never spoken to her children about what happened and she is particularly worried about her daughter, 12 years of age at the time of the trial, and what she may know about it. In this context she remains distressed that in the panic of events immediately after the rape, she left the house for a short while, leaving her children in the house with the man who had raped her.

As can be seen from this evidence, the rape not only had very serious consequences for the victim but has had continuing serious consequences for her as a mother and her family. In contrast, according to the evidence in the NY case, while the victim had, of course, suffered serious consequences, she had recovered fully from the psychological effects within one year.

Moreover, the respondent in this case, unlike the NY case, did not admit the offence from the outset, but maintained a plea of not guilty to the very end. The trial Judge, when sentencing the respondent, referred positively to the attitude of the respondent, as expressed to the Gardai during interview, “that what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibility in the matter”. The DNA did establish that he had intercourse with the victim, which of course had always been the victim’s own evidence. Whatever not resiling from his responsibility meant, it did not at any stage entail accepting criminal responsibility for the offence of which he was ultimately convicted. Of course the respondent was perfectly entitled to plead not guilty. The fact remains that an immediate admission of responsibility and an early plea of guilty, which would have spared the victim the waiting for and going through a trial, which was available as a mitigating factor in the NY case is not present as a factor in this case. This is not by any means the most significant factor differentiating this case from the NY case but it is one of many factors.

In the view of the Court all of the foregoing circumstances demonstrate that the circumstances of the offence and the consequences which it has had for the victim are wholly different from those which pertained in the NY case and the Court is satisfied that the learned trial Judge was wrong in treating them as somehow similar cases.

Undue Leniency

The task of a sentencing Judge is often a difficult and complex one. The law obliges him or her to have regard to all the salient features of the circumstances in which the offence was committed, the nature of the offence and its impact on the victim and society so as to evaluate its gravity. The sentencing Judge is also obliged to have regard to the particular individual who must be sentenced, his or her personal history and circumstances so that a punishment which is proportionate and just may be imposed. There may be matters which the prosecutors consider to be of prime importance and other matters which the defence considers to be of prime importance but it is for the Judge to adopt an independent evaluation of all factors. Apart from the case of murder it will not be possible to refer to a predetermined term of imprisonment which ought to be imposed. Neither has it ever been the function of the D.P.P. to propose that a specific sentence should be imposed. That is a judicial function and an issue which can only be determined when all relevant factors have been taken into account and evaluated by the sentencing Judge in the exercise of his or her independent judicial functions. Counsel for the D.P.P. is, of course, under a duty to bring to the Court’s attention all law and factors relevant to the sentence which may be imposed. The D.P.P. may also assist the Court, which is a practice with a provenance of long standing, by submitting with reference to specific circumstances that those circumstances are such as to warrant a custodial or a substantial custodial sentence or otherwise for the offence committed.

The sentencing Judge has to decide in each case the appropriate sentence within the general parameters of sentencing depending on the nature and degree of aggravating or mitigating circumstances. Sentences are imposed each year in some 3,000 cases by the Courts on those convicted on indictment, only a small proportion of which are appealed on the grounds of either severity or undue leniency. Of all those appealed only a minority are successful. Of those cases only a small fraction receive media attention, as is inevitable, and they do not always reflect the generally high standard of judgment exercised in the sentencing Courts, including by the trial Judge in this case, in often complex circumstances.

However, it appears to this Court that the trial Judge’s pre-occupation with the decision in the NY case distracted him from the essential particularities of this case. The trial Judge made no reference in his sentencing decision to the impact which the crime had on the victim and her family life nor did he appear to attach sufficient weight to the place and circumstances in which the rape was committed.

The Court is satisfied, having regard to the circumstances of the case, the particular circumstances of the respondent, that the well established principle that a custodial sentence should be imposed for the offence of rape ought to have been followed, there being no facts or circumstances in the case which could justify the exceptional and rare departure from that principle. Accordingly in imposing a suspended sentence in this instance the learned trial Judge erred in principle.

In coming to that conclusion, the Court has taken into account the fact that the respondent had told the Gardai, in the course of their interviews with him, that he could remember nothing of what happened on that night between the time he left the pub and was woken up and interviewed by the Gardai in the early hours of the morning in his girlfriend’s house. He could, according to his own story to the Gardai, recollect events of the evening up to leaving the bar and after his first confrontation with the Gardai but not those in between when the rape occurred. This was due he said, to the consumption of alcohol and a drug at one stage in the evening. He had had, he claimed, blackouts before due to the excess consumption of alcohol when he could not remember what had happened the evening before. Although the respondent did not give evidence himself at any stage concerning this matter before he was sentenced, as indeed was his right, particularly so with regard to the trial, the learned trial Judge appears to have accepted, for the purpose of sentencing that that was the position. This Court has proceeded on that basis. Although at the time when he was woken by the Gardai in his girlfriend’s house he may have had no retrospective recollection of what had occurred for the aforementioned reasons there was no direct evidence as to his state of mind at the time when the offence was committed other than that he was drunk and had also taken a drug with one of the drinks.

On the basis of the totality of evidence before it, including his account to the Gardai regarding his lack of recollection, the Jury convicted the respondent of the rape of Miss Y which the learned trial Judge had properly informed them means a man who “has sexual intercourse with a woman who at the time of the intercourse does not consent to it”, and, “at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it”.

Having regard to the foregoing the Court is satisfied that the suspended sentence of three years imposed by the sentencing Court was unduly lenient, even when all the mitigating factors, referred to below, are taken into account.

It now remains for the Court to consider what sentence it considers appropriate.

Mitigating Factors

The mitigating factors were first of all advanced comprehensively by Counsel for the respondent in the sentencing Court and further fully developed and set out at the hearing of this application in support of the submission of Counsel that the sentence imposed by the trial Judge fell within the ambit of his discretion which had been properly exercised in the circumstances of the case.

One of the factors relied on by Counsel was the age of the respondent at the time of the offence 18½ years and also the fact that he had no previous convictions. He laid a certain emphasis on the co-operative attitude adopted by the respondent as regards the Garda investigation. It is correct to say that he co-operated with the Gardai particularly with regard to the provision of forensic samples. As regards the rape he told the Gardai that he had no recollection of what occurred after he left the bar in which he had been drinking – that he had blanked out after that and it was possible that he had intercourse with the victim in her house. In answer to questions from the Gardai he had also stated “I can’t remember but I don’t believe that I would do something like that, in all my life. I have never raised a hand to a girl. It goes against everything that I believe. I am sure that anyone that knows me would say that as well.” He told the Gardai he did not think he was capable of committing such an offence. At one point he told the Gardai, although not accepting that he had intercourse with the victim, that if he did do so and the blood test support this he would not believe it was rape. Also, as previously mentioned, he stated that if the DNA tests implicated him that he would not resile from his responsibilities. It is also true that at the trial that, although the victim had to give evidence as part of the prosecution case, he did not challenge the veracity of the victim. After conviction Counsel told the Court that the respondent took full responsibility for what occurred and deeply regretted what had happened.

Counsel also emphasised that the respondent lives in a rural area in a rural community where everybody knows everybody else. The case attracted widespread publicity in the local press as well as the national press. All of this coupled with the fact that he must be registered as a sex offender will mean that the respondent will carry the shame of this offence with him, especially locally, for the rest of his life. This means that he has no future in the locality in which he lives and probably no future in Ireland. His father lives in England and it is inevitable in the circumstances that he will have to go there and reside there, (where indeed he had been for a short period after sentence) and work there and continue to live with the obligations that arise from being registered as a sex offender. This means that he has thrown away the bright future he had in Clare and lost the option of residing with the rest of his family there. The burden of the conviction is something which he will carry for the rest of his days in County Clare. It was also submitted that this was a case in which the accused, as the learned trial Judge had found, was unlikely to offend again.

Sentence

The offence of rape is one of the gravest offences against society and the human integrity of the victim. The maximum sentence which can be imposed is life imprisonment. The circumstances which may be attendant on the commission of the offence of rape are multifarious, and aggravating factors, when present, variable and often dissimilar in nature or in their combination. It is one of those offences where it would at least be difficult, or as the Supreme Court put it in the Tiernan case, inappropriate to lay down any general standardisation or tariff of penalties. Nonetheless the starting point for any Court when imposing sentence is, as so often stated, that of a substantial custodial sentence. There are no circumstances in this case, relating to the offence or the accused which the Court considers could in any sense give rise to even the consideration of a sentence other than a custodial sentence.

In The People (D.P.P.) –v- Drought (2007 IEHC 310) the Central Criminal Court reserved judgment in order to ascertain the features or factors which tended to place those convicted for the offence of rape into particular ranges of sentencing from lenient, to ordinary, to serious to meriting condign punishment. In doing so reliance was placed on reported decisions of our Courts and these are the only relevant precedents for sentencing purposes. Assistance was also obtained from cases as reported in the media. Reference to the latter group of cases was, quite properly, qualified because as they did not report all the facts and circumstances of the case and they cannot be regarded as a source of legal precedent. Nonetheless, with that qualification in mind, they did provide some useful indicators for the purpose of the broad exercise involved in that case. The judgment did not purport to set standard sentences or tariffs but is a valuable reference point in ascertaining the wide variety of factors, as mentioned above, which can influence sentencing in rape cases. The incidents of aggravation and mitigation of offences can be so variable that no Court should consider itself bound by precedent on a rigid basis and due weight should be given to considerations that at times can be unique to the features of a particular case. As this Court stated in The People (D.P.P.) –v- R (C.C.A. Unreported 15th March 1999):

“As there are no universal standards applicable in determining penalties for rape or any other offence one must approach reported cases and the analysis of the sentences imposed therein with considerable caution.”
While the offence of rape consists, by definition, of a grave physical assault on the victim it is true that the offence in this case was not aggravated by additional or vicious physical assaults accompanying the rape which is often the case. However, the offence is aggravated by the fact that the victim, a mother of three young children, was raped in her own bed in her own home in close proximity to her children by the man who had illegally entered it in the dark in the early hours of the morning.
That had important and emotional as well as psychological consequences for the victim, which have already been referred to, and the mother and the young children had to move out of the home and neighbourhood which they had enjoyed for nine years. They were removed from the proximity of friends and neighbours which they knew locally. There were three occasions on which they moved house before moving into the house which they were at the time of the trial. It is perfectly understandable that the mother in question would become a nervous mother fearful for her safety in her own home. This cannot have but some negative consequences for the children also.

The fact that the respondent took drinks and some drugs so that he could not remember afterwards what had occurred does not absolve him from criminal responsibility as the Jury correctly concluded in their verdict.

Any idea that a man can trespass by stealth into a home at night and rape a woman, and mother, taking advantage of the fact that she was asleep in her own bed, can be treated as other than an aggravated form of rape should be set at nought. A crime of this nature in these circumstances although directed against an individual tends to make others feel unsafe.

It is indeed unfortunate to say the least that a young man in his late teens with no previous criminal record should damage, in these circumstances, not only the life of the victim and her family but that of his own family and himself. The fact that drink and drugs played a part in the evening in question does not absolve him from his answerability to the law and society.

While his young age, the fact that he has no previous convictions and may be unlikely to offend again along with other matters are factors to be taken into account it is nonetheless a serious offence with particular aggravating circumstances and effects. But for these mitigating factors a higher sentence than that which the Court proposes to impose would be warranted.

In the circumstances the Court is of the view that the appropriate sentence which should be imposed in this case is one of ten years imprisonment.

With a view to encouraging the rehabilitation of this young man and in all the circumstances of the case the Court will suspend three years of that term of imprisonment on his undertaking to enter into a bond to keep the peace and be of good behaviour towards all the people of Ireland during that time, and undertaking to co-operate with his supervision by a probation and welfare officer during the post release supervisory period referred to below. The bond is to be in the sum of €500.

Furthermore, the Court is of the view that when the respondent is released on completion of his sentence he should be subject to post release supervision in the interests of further rehabilitation. Accordingly the Court considers, having regard to the provisions of section 29(1) of the Sex Offenders Act 2001 that the respondent, on being released from his term of imprisonment, should for a period of one year commencing on the date of his release be under the supervision of a probation and welfare officer.

For the purpose of s. 31 of the Sex Offenders Act the respondent should note that in the event of a further offence being committed by him during the suspended three year period of his sentence he will be required to serve that three year period together with any further consecutive sentence imposed for that offence. Section 33 of the Act of 2001 provides that should he fail, without reasonable excuse, to comply with any of the supervision period conditions he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1900 or imprisonment for a term not exceeding twelve months or both. Such imprisonment, if it should happen, suspends the period of supervision and it will continue until it expires when he is released from prison. Under the provisions of the Act of 2001 the respondent may apply to vary or discharge any of the conditions relating to his post release supervision.

In short, the respondent is sentenced to a term of ten years imprisonment with three years suspended on he entering into the aforementioned bond and he will be subject to a period of one year post release supervision pursuant to the provisions of the Sex Offenders Act 2001. Against the background of the serious circumstances of the offences in this case the Court has not considered what was found by the learned trial Judge to have occurred subsequent to the trial as affecting the sentence now imposed. The sentence reflects the gravity of the offence itself in the circumstances in which it was committed by this respondent. The sentence is to date from May 11th 2007, being the date when he went into custody

The Court will also make the consequential order of placing the respondent on the register of sex offenders.

With regard to the outstanding appeal in the separate matter concerning the decision to remove the suspension of the original three year sentence, referred to at the outset, the Court, as a consequence of this judgment, will make the appropriate order setting aside that decision.

 

DPP v Hussain

[2015] IECA 22
JUDGMENT of the Court delivered on the 16th day of February 2015 by Finlay Geoghegan J.

1. On the 28th March, 2014, following a ten day jury trial, the appellant, Muhammad Hussain, was convicted before the Circuit Court of the offence with which he had been charged on Bill No. CE/24201 namely:

Within the State intentionally meeting, or travelling with the intention of meeting a child, having met or communicated with that child on two or more previous occasions, and doing so for the purpose of doing anything that would constitute sexual exploitation of the child contrary to s. 3(2A) of the Child Trafficking and Pornography Act 1998 (as inserted by s. 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007).
The offence of which the appellant was convicted took place on the 22nd July, 2011.

2. The sentencing hearing took place on 7th April 2014. Prior to that, the trial judge expressly invited counsel for the prosecution to provide assistance to the court in relation to the sentencing of the offence.
3. At the sentencing hearing evidence was adduced by the prosecution of the relevant facts from a Detective Sergeant. In addition the trial judge was given a short note of sentences handed down in cases involving “other types of offence of a similar nature”. The court will return to the oral submissions accompanying them by counsel for the prosecution. Written testimonials were submitted on behalf of the appellant and submissions made. This Court has the full transcript of the sentencing hearing on the 7th April, 2014.

4. On the 11th April, 2014. The trial judge imposed a four year custodial sentence taking into account thirteen weeks which had been served in custody. The Court also has the transcript of the sentencing decision.

5. The appellant appeals against the severity of sentence. The court has had the benefit of written submissions submitted on behalf of the appellant and respondent and oral submissions made.

6. The court was informed that this was the first prosecution of this kind in the State. Given the novelty and intrinsic importance of the issues raised by this appeal, this Court reserved judgment on that appeal and this is now the judgment of the Court.
Section 3(2A) of the Child Trafficking and Pornography Act 1998
7. Section 3(2A) of the 1998 Act (as inserted by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007) provides:

“(2A) Any person who within the State –

(a) intentionally meets, or travels with the intention of meeting, a child, having met or communicated with that child on 2 or more previous occasions, and
(b) does so for the purpose of doing anything that would constitute sexual exploitation of the child,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.”
Section 3(5) of the 1998 Act (as inserted by s. 3(b) of the Criminal Law (Human Trafficking) Act 2008) provides:

“(5) In this section –

‘child’ means a person under the age of 18 years;

‘sexual exploitation’ means, in relation to a child –

(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,
(b) the prostitution of the child or the use of the child for the production of child pornography,

(c) the commission of an offence specified in the schedule to the Sex Offenders Act 2001 against the child; causing another person to commit such an offence against the child; or inviting, inducing or coercing the child to commit such an offence against another person;

(d) inviting, inducing or coercing the child to engage in or participate in any sexual, indecent or obscene act, or

(e) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act for the purpose of corrupting or depraving the child.”
The evidence before the Circuit Court for Sentence
8. The facts before the Circuit Court of which this Court is aware are confined to those given in evidence by the Detective Sergeant at the sentencing hearing on the 7th April, 2014. There were minimal further facts referred to (without objection) by counsel in submission on the same day. With one exception they are the facts referred to by the trial judge in imposing sentence and relevant to this appeal.

9. The accepted evidence is that the appellant met the intended victim (whom we shall describe as “Ms. F”) in the early hours of the 25th May, 2011, in a provincial city. Ms. F was born on the 3rd August 1997 so that at that point she was some two and half months short of her fourteenth birthday. At the time Ms. F was residing in institutional care at a location perhaps some 20kms or distant from the city in question. While she lived in an institutional setting, Ms. F did, however, have frequent contact with her mother.

10. On the evening in question Ms. F and her friend (whom we shall describe as “Ms. H”) had left the residence and got a taxi into the city. Ms. F and Ms. H had spent the evening together in the company of another person, but by the time they met the appellant they were walking along a road on their own. The appellant was travelling in a car with another (male) friend and he stopped at some traffic lights and engaged in conversation with the two girls. It appears that either the appellant or his friend enquired of the two girls as to whether they were prostitutes. At all events the two girls struck up a conversation and they got into the car. Ms. F subsequently explained that the only reason that she got into the car was because a Garda patrol car was coming and she did not want to be caught and taken back to her residence. It was accepted that on that evening both Ms. F and Ms. H told the appellant and his companion that they were nineteen years.

11. Having got into the car the four of them spent the next part of the evening or the early hours of the morning together. It appears that Ms. F was in the front of the car with the appellant and Ms. H was in the back seat with the appellant’s male companion. At the end of the evening the appellant gave his telephone number to Ms. H and Ms. H also gave him a telephone number. Ms. F did not have her mobile telephone because her mother had confiscated it.

12. On the following evening Ms. F used a computer to send a text message to the appellant’s mobile telephone number in which she essentially asked him to meet the two girls again in the village just beside the residence. While the appellant may have travelled that evening, he did not manage to contact Ms. F as she did not have her telephone with her. On the day after that again, the appellant telephoned Ms. F’s number. On this occasion he spoke to her mother who had possession of her daughter’s telephone. When Ms. F’s mother answered the telephone, a brief conversation took place in which she explained that Ms. F did not have her telephone anymore and that the caller could not speak to her.

13. The appellant then subsequently sent a text to Ms. F’s number asking if it was Ms. H. who had just answered the telephone. At this point Ms. F’s mother became concerned, because Ms. H was a new resident at the institution and she accordingly sent a text to the calling number asking that person (i.e., the appellant) to call. Added to her concerns was the fact that Ms. F had absconded that evening and was missing at the time. The appellant then rang again and Ms. F’s mother explained that Ms. F was only thirteen and that she had just gone missing along with her friend, Ms. H. The appellant said that he had only met her the previous night that he did not know where she was and, having learnt of her true age, he then asked no further contact be made. He sent a further text message to the telephone indicating that he did not know where the girls were. It appears shortly afterwards that Ms. F’s older sister, Ms. O, called the appellant’s number and in that conversation she reiterated that Ms. F was only thirteen years old.

14. There was no further contact until the 17th July, 2011. On that occasion Ms. F was visiting her mother and she had taken back possession of her mobile telephone, although her mother was not aware of that fact. When in possession of it, she sent a text to the appellant asking him to make contact. There then followed an exchange of texts and telephone calls. The appellant called Ms. F a total of five times, but one of these conversations was very brief lasting a matter of seconds. There were, it seems, two separate conversations that evening and the appellant reproached Ms. F. for not telling him that she was thirteen when they first met. At the end of the conversation they nevertheless departed on good terms. Ms. F disclosed to her mother that she (Ms. F) had her mobile telephone. Ms. F’s mother then took possession of her daughter’s telephone. She then discovered that there had been contact between Ms. F and the caller whom she now knows to be the appellant.

15. On the 20th July 2011, there were two calls from the appellant to Ms. F’s number which her mother answered. During these calls the mother pretended to be Ms. F and conversed with the appellant as if she were her daughter. In the course of these conversations there was a discussion about meeting and arrangements were made to meet up together. On the 22nd July, Ms. F was in company of her mother and a telephone call was received from the appellant which Ms. F’s mother recorded using her own mobile telephone. This recording was played to the jury and during the course of it, it became clear that the appellant wanted to meet Ms. F and that he was offering to bring her items including alcohol and credit for her mobile telephone. In that telephone call he admitted he was aware of her age.

16. While it appears that there was some discussion about sex and sexual matters in that telephone call, the appellant did not commit himself to anything. The appellant did agree to meet Ms. F that evening and the Gardaí were then contacted by Ms. F and her mother. By this stage the Gardaí had received Ms. F’s mobile phone and could see the level of contact from the appellant. The Gardaí then arranged to be in the general vicinity of the village to which the appellant was scheduled to travel.

17. The appellant then made two calls immediately prior to arriving at the village to Ms. F’s number, but both of these were answered by a female Garda who pretended to be Ms. F. The appellant arrived in his car at the village at about 10.30pm and was then intercepted by Gardaí. The appellant was arrested and brought to a local Garda station. During the course of the interviews he gave an account of having met Ms. F and his ongoing communication with her. He agreed that he wished to meet her in the expectation of some degree of sexual acts being performed. He denied that, by reason of his religious beliefs and the age of Ms. F, he had ever intended to have full sexual intercourse with Ms. F. He nevertheless stated that he had hoped to engage in some form of oral sex or some form of masturbation.

18. The appellant was charged with the offence already set out and pleaded not guilty.

19. The appellant was born in March 1982, so that at the time of the events in question he was aged 29. His only prior convictions in the State arose from one traffic incident in 2010 for which he received a fine and no custodial penalty.
Submissions at Sentence Hearing
20. The submissions made on behalf of the Director at the sentencing hearing are directly relevant to the grounds of appeal. As already indicated, it appears that the trial judge had invited assistance from the Director in accordance with the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Z. [2014] IECCA 13 (Clarke J.). The submissions made on behalf of the Director fell into three parts. Firstly, a submission on the cases in the short note which had been prepared and handed into the trial judge. In doing this, counsel for the Director indicated clearly that they were cases involving “other types of offences of a similar nature” and also submitted that “they do not give any direct guidance”. Nevertheless he then took the trial judge through the cases indicating the nature of the offence, the sentence imposed and in some instances the relevant maximum sentence.

21. The second part of the submissions related to where, in terms of its gravity, the offence created by subs. (2A) of s. 3 of the Child Trafficking and Pornography Act 1998 (as inserted by s. 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007) lay when considered in the context of the other offences created by s. 3 of the 1998 Act. Counsel for the Director submitted:-

“I regret that there is not anything more direct than that, but what I would point the court to is the legislation itself because clearly the Oireachtas has considered where on the scale of offences this should fit and has done that by reference to the maximum sentence. If the court looks as s. 3 of the 1998 Act, as amended, it is clear that the more serious offences involving children carry life imprisonment and that they are under subs. (1) trafficking a child for the purposes of sexual exploitation that carries a maximum sentence of life. Under subs. (2) actually sexually exploiting a child or detaining or restricting the personal liberty of a child for the purpose of sexual exploitation, that again carries a maximum sentence of life imprisonment. Subsection (3) deals with causing another person to commit either of those two offences and again that carries life imprisonment as a maximum term. And subs. (4) deals with an attempt to commit any of those offences and again that carries a maximum sentence of life imprisonment. So where there is actually sexual exploitation or any direct damage of a child or direct impact on a child, then the maximum sentence is at the highest end of the spectrum. Under subs. 3(2A) which we are dealing with where the offence is either meeting or travelling with the intention of meeting the child, having communicated previously and doing it for the purpose of sexual exploitation, the maximum sentence in relation to that has been set at fourteen years. So clearly it is viewed as being of less seriousness than actually impacting on the child or of course actually sexually exploitation of a child, going all the way in relation to that, but then nevertheless, whilst not being a maximum sentence of life imprisonment, it is still gauged at a very serious level of having a maximum sentence of fourteen years, and I hope that that is of some guidance to the court in relation to how to deal with Mr. Hussain. But that is in relation to the offence itself and of course, Mr. Hussain has personal circumstances of mitigation which I am sure Mr. O’Loughlin will go into and that inevitability will have an impact on the court’s decision.”
22. Following that submission the trial judge inquired of counsel for the Director:
“. . . under the Z case where does the Director put it on the scale. . . .”
23. Counsel for the Director clarified that the trial judge intended “on the scale of offences of this nature” and then responded with the following submission:
“It is very difficult to say that in that the —– as I say, this is the first time that it had been prosecuted. But where one looks at the alternative offences, or not so much the alternative, but the more serious offences are covered in the same section, it is difficult to envisage how, if something more serious had happened, a more serious offence would not have been committed and by way of example I am thinking if for example [ Ms. F] had turned up at the meeting and had engaged in a sexual act, then of course Mr. Hussain arguably would have then committed a more serious offence of sexual exploitation. And in those circumstances, at the very least this offence would have to be in the midrange. It perhaps is not at the highest end because [Ms.F] was thirteen years old and was not an infant or a very young child. And the court will of course bear in mind that [Ms. F] herself was a willing participant in the communication, albeit that given her age and vulnerability that derives from her upbringing, that she is the person deserving protection. So it is difficult to know how far her actions mitigate the sentence or mitigate the culpability of Mr. Hussain because it is this kind of contact that the Act, in my submissions is designed to protest victims from. But at the very least the Director would say this is in the midrange of sentencing or midrange of offending, perhaps even towards the upper end of the midrange.”
24. Counsel for Mr. Hussain made submissions on the facts and in relation to a number of written testimonials produced, including a letter from the appellant. Counsel submitted that the sentencing decisions referred to by counsel for the prosecution were of no guidance for the court by reason principally of the difference in the offences. He submitted by reference to the facts of the offence of which the appellant was convicted in the context of what the statute envisaged that it should be considered to be at the lower end of the spectrum. Counsel submitted that Mr. Hussain accepted the verdict of the jury and was not intending to appeal. He was now taking full responsibility for his actions. He also referred to the particular hardship for him of a prison sentence by reason of his not having family in the jurisdiction; the hardship on his family in Pakistan whom he was supporting and the offer of compensation. He also referred to his good work record, lack of any relevant previous convictions and positive testimonials. In an exchange with the trial judge he submitted that she was not entitled to take into account the fact that the defence put the prosecution on proof of all aspects of the case.
Sentence imposed by the Circuit Court
25. The trial judge imposed a four year sentence in a ruling delivered on 11th April, 2014. The trial judge having set out a summary of the relevant facts stated:

“This is a very serious offence. There is no acceptable justification for a man of 29 years making contact with a 13 year old girl or responding to contact in the manner he did. His behaviour and scheduled meeting with her on the 22nd July demonstrate clear meditation and planning and reflects on his culpability. In my view the fact that [Ms. F] was a willing participant and initiated contact in July given her age, her troubled history and circumstances is worthy of little credit to the accused. In my view this is an offence, the gravity of which in the circumstances of this case falls within the middle range that is six to eight years. It is an aggravating factor, in my view, that Mr. Hussain re-established contact with [Ms. F], albeit at her initial instigation, and arranged the meeting and had been told by her mother and sister in May that [Ms. F] was only thirteen years of age, was a troubled child, in and out of the care system and that had been asked to stay away from her because of her vulnerability.
I am not in a position to give any credit to the accused due to the manner in which the matter has proceeded. I am told that the accused is willing to offer compensation, which, in my opinion, is not appropriate in the circumstances of this case. He has offered to leave the jurisdiction and return to Pakistan, which, again, I do not think is just in the circumstances.

His previous conviction which arises out of road traffic incidents bear no relevance to this offence . . . against this I have to take into account the following mitigating factors: the effect of incarceration would have on the accused as a non-national, however, he has been living here since 2003, he is an educated man, articulate and he has fluent English. His co-operation to some extent with the Gardaí and made certain admissions. He is somewhat remorseful. . . . He has not come to the adverse attention of the Gardai since and he has met his bail conditions. I also take into his account his age, his previous character, his work history. Also the fact that he was the sole provider for his family in Pakistan. Prior to being charged with this offence, he was financially supporting them and this sentence will undoubtedly produce certain hardship in this regard. In all the circumstances I am imposing a four year custodial sentence.”

Issues upon Appeal
26. Multiple grounds of appeal were advanced on behalf of the appellant. However these were helpfully grouped and insofar as pursued at the hearing may be summarised as follows:
1. The trial judge erred in law and/or in principle in inviting the prosecution to make submissions in accordance with the judgment of the Court of Criminal Appeal in DPP v. Z. as to the view of the Director in regard both to the level of seriousness of the offence and the appropriate sentencing range in the circumstances of this offence and in particular as it was the first prosecution of such an offence. The further submission was that the trial judge erred in law and principle in having regard to such submissions in determining the sentence.
2. The sentence imposed was excessive and disproportionate. It was submitted that the trial judge erred in principle in her approach and in determining that the gravity of the offence fell within the middle range to which a sentence of six to eight years applied before taking into account mitigating factors.

3. It was also submitted that the trial judge failed to have proper regard to a number of the mitigating factors put forward. Two in particular were advanced which fall for separate consideration:

a. that the trial judge erred in principle in having regard to the manner in which the defence of the trial was conducted on the appellant’s behalf; and
b. the trial judge erred in principle in considering that compensation or an offer of compensation was not appropriate in the circumstances of this case.

Role of Prosecutor
27. The trial judge had sought assistance from counsel for the Director in accordance with the decision of the Court of Criminal Appeal (Clarke, Moriarty and McCarthy JJ) delivered by Clarke J. in (The People (Director of Public Prosecutions) v. Z. [2014] IECCA 13. The judgment in the Z. case was one of three judgments of the Court of Criminal Appeal delivered by Clarke J. on the 18th March, 2014. The other two were The People (Director of Public Prosecutions) v. Kieran Ryan [2014] ICCA 11 (Clarke, McCarthy and Sheehan JJ) and The People (Director of Public Prosecutions) v. Adam Fitzgibbon [2014] IECCA 12 (Clarke, Birmingham and Sheehan JJ). In the case of Z. the appeal was dismissed and there is no further judgment. However in the case of both Ryan and Fitzgibbon the appeals were allowed on the 18th March, there was a further sentence hearing in each, during which submissions were made on questions of principle arising from the Z judgment and further judgments were delivered in Ryan and Fitzgibbon by the Court of Criminal Appeal per Clarke J. on the 17th July, 2014, [2014] IECCA 24 and [2014] IECCA 25.
28. At the time of sentencing the appellant herein in April 2014, the trial judge and counsel did not have the benefit of the clarification given by the Court of Criminal Appeal in its judgment of the 17th July, 2014, in Fitzgibbon in relation to what it said in Z in relation to the guidance or assistance appropriate to be given by the prosecution at a sentence hearing. This Court has had the benefit of the clarification in the July 2014 judgment in Fitzgibbon to what was said in Z and with which it respectively agrees. It is necessary to consider in some detail these judgments.

29. In Z the Court of Criminal Appeal firstly expressed approval of an exchange which had taken place at the sentence hearing between counsel for the Director and the trial judge. The accused had pleaded guilty at a late stage to fourteen sample counts of rape and child cruelty against four of his daughters. On the day prior to his plea he had pleaded not guilty to 271 counts of rape and cruelty. The judgment records that counsel for the Director had submitted at the sentence hearing that the case was “on its facts, at the top end of the range”. The trial judge then sought further assistance from counsel for the Director in relation to the actual range of sentences which might be considered appropriate for a case of this type being one at the top end of the range. Having taken instruction, counsel submitted that the top end of the range, even in cases where there had been a plea of guilty permitted a very lengthy determinative sentence or a life sentence.

30. The Court of Criminal Appeal expressed approval of this exchange. It is important to note that this was a double exchange; firstly as to where the offence lay on what was referred to as the “range” and is sometimes referred to as “the spectrum of severity” or “spectrum of seriousness” and secondly as to either the actual sentence or range of sentences which might be appropriate. The novelty in the Z judgment appears to primarily relate to approval of the latter submission on the sentence.

31. In its judgment, the Court of Criminal Appeal in dealing with the historical position of the prosecution at a sentence hearing at para. 2.3 stated:-

“For many years it was the practice in criminal courts for the prosecution not to offer any view on sentence as such. Clearly evidence was led as to any circumstances material to the exercise of the courts sentencing role, including evidence as to aggregating factors or as to previous convictions. However, it was not the practice for counsel for the prosecution to offer any view to the trial judge as to how the factors present in an individual case ought to convert into an actual sentence or range of sentences.”
32. The Court of Criminal Appeal then explained its reasons for its now different approach in paras. 2.4 to 2.7 as follows:
“2.4 Whatever may have been the merits of such a practice in the past, it seems to this Court that such a practice can no longer be justified, at least since the introduction of a system of appeals, on the basis of undue leniency, which can be taken by the DPP (s. 2 of the Criminal Justice Act 1993). It seems to this Court that it is incongruous that the DPP should be entitled to criticise on appeal, on the basis of undue leniency, a sentence imposed by a sentencing judge without having first suggested to the sentencing judge the sentence or range of sentences which it was submitted ought to be considered appropriate.
2.5 In that context it is also important to note that there have been developments which ought assist, at least in many types of cases, the prosecution in being able to place such guidance before a sentencing judge. First, this Court has endeavoured, in a number of areas, and in appropriate cases, to conduct an analysis of the case law in relation to sentences for particular types of offences and give some general guidance as to the type of sentences which might be appropriate for offences with a particular level of seriousness along the spectrum. An example can be seen in Director of Public Prosecutions v. Carl Loving [2006] 3 IR 355, which sets out a detailed structure in respect of the factors to be taken into account when sentencing for child pornography offences. These factors were recently summarised in Director of Public Prosecutions v. Brian O’Byrne (Unreported, Court of Criminal Appeal, 17th December 2013) (see also Director of Public Prosecutions v. Derrick Stronge [2011] IECCA 79 in relation to the offence of dangerous driving causing death and Director of Public Prosecutions v. Brian Wall [2011] IECCA 45 in relation to undue leniency applications in respect of sentences imposed for offences under s. 15A of the Misuse of Drugs Act 1977). There is no reason why the attention of a sentencing judge should not be drawn to such decisions and submissions made as to where, in the light of the analysis by this Court, the offence in question is said to lie along a spectrum of severity. In many of the cases this Court had endeavoured, as it will do in this case, to identify the principal factors which will ordinarily influence a decision as to where along the spectrum of seriousness of the offence concerned a particular offence might lie. In some cases, this Court may endeavour to provide further guidance as to how such factors may convert into actual sentences. For example, in a judgment delivered today in Director of Public Prosecutions v. Ryan, a formation of this Court (differently constituted in part) sought to give such guidance in relation to sentencing for certain firearms offences. Likewise in a further judgment delivered today in Director of Public Prosecutions v. Fitzgibbon similar guidance is given in respect of assault causing serious harm.

2.6 In addition, there is increasingly information available through the ISIS (Irish Sentencing Information System) project, which provides details as to the range of sentences which are typically imposed by sentencing judges for particular types of offences.”

33. This Court draws attention to what appears to be two separate forms of potential guidance from an appeal court and assistance which might be given by the prosecution envisaged by the Court of Criminal Appeal at para 2.5 in the above. Firstly judgments which analyse factors to be taken into account in sentencing for particular offences upon the basis of which the prosecution may or should make submissions “as to where, in the light of the analysis by [the appeal court], the offence in question is said to lie along a spectrum of severity”. Second those judgments such as Ryan (No.1) and Fitzgibbon (No.2) which give guidance as to how such factors may convert into actual sentences or the range of sentences for such offences.
34. The Court of Criminal Appeal in Z in summarising its approach at the commencement of para. 2.7 stated:

“In this Court’s view, there is now an obligation on the prosecution to draw to the attention of a sentencing judge any guidance, whether arising from an analysis carried out by this Court or from ISIS or otherwise, which touches on the ranges or bands of sentences which may be considered appropriate to any offence under consideration [emphasis added] and the factors which are properly, at least in ordinary cases, to be taken into account. In many cases, this should not impose any significant burden on the prosecution for the sources ought to be easily recognised.”
35. This Court considers that the Court of Criminal Appeal in Z was confining the assistance or guidance of which it approved to analysis carried out by the Court of Criminal Appeal, ISIS or otherwise which related to factors to be taken into account and the ranges or bands of sentence referable to the actual offence under consideration by the sentencing judge. Further as appears below this approach was not changed in the clarification in Fitzgibbon (No.2).
36. In July 2014, in Fitzgibbon (No.2) the Court of Criminal Appeal again per Clarke J. (with Birmingham and Sheehan JJ.) returned to consider the obligation of the prosecution in giving assistance at sentencing hearings. It appears from that judgment that counsel for the Director in the case had raised some practical difficulties in relation to the implementation of certain aspects of what had been said by the Court of Criminal Appeal in Z. In Fitzgibbon (No.2) the Court of Criminal Appeal at para. 2.2 identified amongst the matters to be considered by it:-

“(a) Given that no issue was raised concerning the general obligation on the D.P.P. to bring to the attention of a sentencing judge relevant guidance as to the range of sentences which might properly be imposed in respect of certain offences, an issue arose concerning the parameters of what might properly come within the ambit of such guidance properly so called;
(b) the question of the role of counsel for the D.P.P. in sentencing hearings, involving offences in respect of which no guidance in accordance with (a) is available, was also touched on in the written submission.

(c) . . .”

37. In dealing with the matters identified at paras. (a) and (b) above the Court of Criminal Appeal set out again the traditional position of the very limited role played by the prosecution at a sentence hearing. It also referred to Deaton v. Attorney General, Revenue Commissioners [1963] I.R. 170, which makes clear that sentencing is exclusively a judicial task. The Court of Criminal Appeal expressed agreement with the submission made by counsel that it followed that the sentencing function may not be delegated by a judge. Its attention was also drawn to recent Australian jurisprudence including the judgment of the High Court of Australia in Barbaro v. The Queen [2014] HCA 2 (February 12, 2014) in which it considered an earlier decision of R. v. MacNeil-Brown [2008] 20 VR 677. The Court of Criminal Appeal drew attention in particular to the following extract from the Barbaro judgment of the High Court of Australia:
“29. The practice countenanced by MacNeil-Brown assumes that the prosecution’s proffering a statement of the bounds of the available range of sentences will assist the sentencing judge to come to a fair and proper result. That assumption depends upon the prosecution determining the supposed range dispassionately. It depends upon the prosecution acting not only fairly (as it must) but in the role which Buchanan JA rightly described as that of “a surrogate judge”. That is not the role of the prosecution.

…
33. The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution’s view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.
…

38. If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.”

38. The Court of Criminal Appeal then at para. 3.4 sought to explain further what the Court of Criminal Appeal (in part a different constitution) had said in Z in the following terms:-

“3.4 In the context of those submissions it is, in the Court’s view, important that there be clarity about what this Court said in Z. It is clear that the question of sentencing is purely a judicial matter. It is not for any outside party to give guidance to a sentencing judge as to what the sentence in a particular case should be. But there is a very real difference between guidance, on the one hand, and assistance, on the other. What this Court suggested in Z was that counsel for the D.P.P. should be of assistance in drawing to the attention of the Court, any relevant materials which, it might be suggested, the Court should take into account in imposing sentence. As noted at para. 38 of the decision of the High Court of Australia in Barbaro, the parties are entitled to make submissions about facts, ‘the relevant sentencing principles and comparable sentences’. I do not see anything inconsistent between that passage and what this Court said in Z. It is not for the D.P.P. to suggest that a particular range of sentences is appropriate as such. Rather, it is for the D.P.P. to bring to the attention of a sentencing judge any guidance on sentence which has been given either by this Court or from other relevant sources (an issue to which the Court will return) and to make submissions as to where, in the light of that guidance, the case in question falls.

3.5 It would, indeed, create the very difficulties identified by the High Court of Australia in para. 33 of the judgment in Barbaro, if the D.P.P. were simply to state that the appropriate sentence, in the D.P.P.’s view, for a particular offence was between x and y years. It is, on the other hand, a very different thing for counsel for the D.P.P. to draw the Court’s attention to the fact that this Court has given guidance as to the appropriate ranges of sentences for crimes of a particular type and to submit, on the facts and having regard to appropriate sentencing principles, that the case in question falls into a particular part of that range. In so doing counsel is doing no more than any counsel on any side of any case, whether civil or criminal, is required to do; drawing the Court’s attention to the law and making submissions on what the result should be as a result of applying that law to the facts.
3.6 Finally, before going on to deal with the three specific issues identified earlier, it is necessary to touch on a point made by counsel for the D.P.P. in the course of oral argument. Based on a suggestion that an equal burden should lie on the prosecution and the defence, counsel made the argument that the obligation on prosecuting counsel should not extend beyond the obligation which rests on the defence. The Court does not, however, see that there is any reason why a sentencing judge cannot equally ask defence counsel for submissions as to where the defence submits the offence in question lies on any spectrum of seriousness identified in the jurisprudence of this Court. In particular if defence counsel wishes to argue that either the guidance to which the prosecution has drawn attention is not fully relevant or correct or that the submissions of the prosecution as to where the offence in question lies on any spectrum identified in such guidance is incorrect, then it is for the defence to make its submissions on those issues as part of the sentencing process.”

39. The Court then turned to the specific questions it had identified set out above. Firstly, as to what guidance or assistance comes within the ambit of the prosecutor’s obligation it stated:
“4.1 No point was raised on behalf of the D.P.P. concerning the obligation to bring to the attention of a sentencing judge guidance such as was given by this Court both in this case and in Ryan. The question which did arise was as to whether the obligation of prosecuting counsel went beyond that. In the Court’s view it does. Where there is reliable information as to the range of sentences for particular offences typically imposed by sentencing judges it seems to this Court that the prosecution should draw that information to the attention of the sentencing judge.
4.2 A sentencing judge is not, of course, bound by any such analysis. However, it seems likely that, at least in many cases, a sentencing judge will obtain assistance from having such information, if it exists, drawn to his or her attention. Likewise, it is important to note that an important factor behind the views expressed by this Court in Z is a desire, while recognising the significant range of different factors which may be relevant to the sentencing process in any individual case, to bring about the maximum level of consistency in sentencing which is compatible with giving proper weight to such individual factors. Bringing to the attention of the sentencing judge any reputable analysis of the sentences which are typically imposed in respect of a relevant offence can only be of assistance in bringing about such consistency. For those reasons it is the Court’s view that the obligation on prosecuting counsel extends beyond bringing the sentencing judge’s attention to guidance from this Court, but extends also to any reputable analysis of the sentences typically imposed by sentencing judges for the offence in question.

4.3 In that context it is appropriate to draw attention to the fact that one of the matters specifically identified by the High Court of Australia in Barbaro, as being a matter which the prosecution should bring to the Court’s attention, is the question of ‘comparable sentences’. There is, of course, as has been pointed out in many cases, a real difficulty in attempting to compare with any degree of precision the sentence imposed in one case with another. The range of factors, both those which influence an assessment of the seriousness of the offence and the culpability of the accused and those which derive from the accused’s circumstances, which are properly taken into account, makes it very difficult to draw any great assistance from a single sentence. It is for that very reason that a sentencing judge must be allowed a real margin of appreciation in determining the appropriate sentence. Likewise, drawing to a sentencing judge’s attention a single decision, whether of a sentencing judge in another case or of this Court, is unlikely to be of very great assistance, at least in many situations. However, where there is sufficient information available as to the range of sentences typically imposed, different considerations obviously apply. That leads logically to the second issue raised.”

40. The Court then turned to the situation which pertained before the trial judge in sentencing the appellant herein, namely where there is no guidance of the type referred to from an appeal court or a reputable analysis of the sentences typically imposed by sentencing judges for the offence in question and stated at para. 5.1:-
“It seems to this Court that where there is no guidance of the type referred to in the previous section available, prosecuting counsel should not suggest any range of sentence, for to do so, without such guidance being available, would be to give rise to the very problem identified in Barbaro. It would lead to prosecuting counsel straying into suggesting a sentence as such rather than making an appropriate submission as to where, in the light of the sentencing jurisprudence of this Court or in the light of a proper analysis of sentences typically imposed by sentencing judges, the range for the offence in question lies.”
41. It appears to this Court that the clarification provided by the Court of Criminal Appeal in Fitzgibbon (No.2) to what was stated in Z limits the circumstances in which assistance or guidance may be given by the prosecution and as to the form of that assistance or guidance. However, it is important to note that the Fitzgibbon (No.2) judgment appears to be concerned primarily, if not in substance exclusively with the role of the prosecution in making submissions as to the range of sentence appropriate for the offence in question. In speaking of the range of sentence it appears that the Court was referring to the range in the sense of number of years which might be imposed for the sentence. As pointed out earlier in this judgment, in Z the Court approved of assistance by the prosecution in relation to firstly placing the offence committed at its appropriate point on the spectrum or range of severity and then identifying the appropriate range of sentence. In Fitzgibbon (No.2) the Court did not expressly address the role of the prosecutor in placing the offence on the spectrum of severity. It did make reference to this at para 3.6 in the context of the obligation of defence counsel.
42. Prior to considering the role of the prosecutor in the light of Z and Fitzgibbon (No.2) it must be recalled that the judgment in Fitzgibbon (No.2) was given by a Court of Criminal Appeal two of whose members (Clarke J. and Sheehan J.) were common to the Court of Criminal Appeal which gave judgment in Ryan (No.1) on the 18th March, 2014 and Ryan (No.2) on the on the 17th July, 2014, in which they referred with approval to the principles set out in Fitzgibbon (No.2) and which appear relevant to a full understanding of Z and Fitzgibbon (No.2). In Ryan (No.1), the Court considered the ways of determining an appropriate sentence and stated at paras. 3.1 to 3.3:

“There are, in general terms, two ways in which a determination of the appropriate sentence can be arrived at. First, a sentencing judge, having assessed the gravity of the offence and the culpability of the accused, may seek to place the offence itself at an appropriate point on the spectrum of offences of that type. Offences can typically be divided into lower, middle and upper parts of the range with, perhaps, further refinements such as, for example, “the upper part of the middle range” or the like. There is, of course, no necessary formula of words which must be used. It should also be emphasised, as has already been pointed out, that there may always be exceptional or unusual cases which do not readily fit into any such range or ranges and where the sentencing judge will have to engage in a somewhat novel analysis to come to an appropriate determination as to sentence. However, in most cases, an offence can, by reason of its gravity and the culpability of the accused, be placed somewhere along the appropriate range in the manner just identified.
One possible means of converting such an analysis into an actual sentence involves, as a first step, the sentencing judge determining the appropriate sentence for the offence itself having regard to where the offence lies along that range. The sentencing judge is then required, in accordance with the established jurisprudence, to take into account the circumstances of the individual accused and make such adjustment (if any) as may be appropriate to reflect the individual circumstances of that accused. Where, for example, there are significant mitigating and other personal factors, then a specified reduction in sentence and/or a suspension of sentence in whole or in part may be appropriate to meet those factors. In adopting this methodology, the sentencing judge indicates what the appropriate sentence might be, were it not for the individual circumstances of the accused concerned, and then adjusts the sentence, as appropriate, to reflect those individual circumstances.

However, a sentencing judge does not necessarily have to indicate what sentence would be appropriate for the offence itself. Rather the sentencing judge may determine where it is appropriate to place the offence in the spectrum and then adjust that place to reflect any individual circumstances of the accused so as to determine where the sentence itself should lie along the range of appropriate sentences having regard both to the offence and the circumstances of the accused. It seems to this Court that either of such methodologies is an entirely appropriate way for a sentencing judge to approach the question.”

43. As appears each approach involves as a first step a sentencing judge, placing the offence committed at an appropriate point on the spectrum of severity for offences of that type. In each method a sentencing judge having determined where on the spectrum of severity the offence lies must turn to the second question of determining what is appropriate for the accused for the offence committed. The Court envisaged two permissible approaches to the second question. It also recognised that there may be exceptional cases where judges may need to depart from this approach. It is not necessary to consider the detail of these for the purposes of this judgment.
44. What then is the permitted role of the prosecution in a sentencing hearing following the single judgment in Z and the two judgments in Ryan and Fitzgibbon? At a level of general principle it appears to this Court consistent with all the judgments that the prosecution is entitled to and should give assistance to the sentencing judge in relation both to placing the offence at the appropriate point on the spectrum of severity and in identifying the sentence or where on the range of sentences it is appropriate to place the offence.

45. The permitted assistance and limits on same in relation to the second part of the sentencing exercise, namely the determination of the appropriate sentence or range of sentences for the offence may now be summarised as follows.

a. The prosecution should draw to the attention of the sentencing judge any guidance given by decisions of an appeal court in relation to the sentence to be imposed for the offence in question and any guidance to be obtained from any reputable analysis of the sentences typically imposed by sentencing judges for the offence in question.
b. Where there exists guidance of either type described then it is open to the prosecution to make submissions as to where, in the light of that guidance and the facts admitted or proved the appropriate sentence for the offence in question falls on the range of sentences.

c. Where no guidance from an appeal court or a reputable analysis of sentences typically imposed by sentencing judges for the offence in question exists, it is not appropriate for the prosecution to suggest any sentence or a place on the range of sentence for the offence in question.

46. This Court considers that in identifying the above the Court of Criminal Appeal was not intending, even in cases where no guidance of the type identified exists, that the prosecution should cease the longstanding practice of drawing the sentencing judge’s attention to the maximum and any minimum sentence for the offence in question.
47. What, with respect, is less clear from these judgments is the assistance which may or should be given by the prosecution to a sentencing judge in relation to where on the spectrum of severity for the offence in question the actual offence committed lies. This Court considers that from the judgment in Z and Fitzgibbon (No.2) it follows that even in the absence of guidance of the type described on the appropriate range of sentences the prosecution may and should in some instances give assistance to a sentencing judge in placing the offence committed on the spectrum of severity for the offence in question but not make any further submission as to the appropriate range of sentence for the offence. Whilst in relation to some offences such as where there is a relatively low maximum sentence there may be a direct correlation between the place on the spectrum of severity and a corresponding straight line arithmetic place on range of permissible sentences in others particularly where life is the maximum sentence such a straight line correlation may not exist.

48. One circumstance where such assistance would be appropriate is where there exist judgments of an appellate court which identify the factors to be taken into account when sentencing for a particular offence. It would then be appropriate for the prosecution to draw attention to these judgments and to make submissions as to where in the light of that guidance the offence in question falls on the spectrum of severity. There may be other circumstances in which such assistance is permissible and appropriate. It is only intended to consider that pertaining in the sentencing of the appellant.
Application of principles in Z and Fitzgibbon (No 2) to this appeal
49. What of the position which pertained in sentencing the appellant following a first prosecution of a relatively new statutory offence? Should or may the prosecution do any more than draw the judge’s attention to the maximum sentence and an absence of any minimum? This Court considers that it may and should and that such a position follows in part from the change of approach identified in Z consequent on the right of appeal of the DPP in the case of undue leniency, desirability of consistency and the general principles set out in Z and Fitzgibbon (No.2). Any such additional assistance would depend upon the nature of the offence and must of course observe the limits of being assistance and not being capable of perceived as guidance by the prosecution, in the sense of suggesting a sentence, so as to avoid encroaching on the exclusive judicial function and the problems identified in Barbaro and Fitzgibbon (No.2).

50. The Court recognises that the novelty of this prosecution, the nature of the offence created by s. 3(2A) of the 1998 Act and the decision in Z without the clarification in Fitzgibbon (No. 2) presented considerable difficulties for the trial judge and prosecution and defence teams. Nevertheless the Court considers that certain of the submissions by the prosecution which appear to have been taken into account by the trial judge were impermissible. Firstly, the Court considers that it was not in accordance with the principles set out to submit for consideration sentence decisions on offences other than the offence in question i.e. the offence of which the appellant was convicted. Such decisions do not come within the permitted guidance in relation either to the severity of the offence or the appropriate sentence. Secondly the Court considers that in accordance with the judgments in Z and Fitzgibbon (No. 2) it was not open to the prosecution to make any submission in relation to the appropriate sentence by reason of the absence of any guidance either from decisions of an appeal court or any reputable analysis of the sentences typically imposed by sentencing judges for offences contrary s. 3(2A) of the 1998 Act. Hence it was not permissible to submit as was done that “at the very least the Director would say this is in the mid range of sentencing or mid range of offending, perhaps even towards the upper end of the mid range”. The trial judge erred in principle in considering these submissions.

51. For the reasons already set out, the Court considers that it was both permissible and incumbent on the prosecution to assist the trial judge in the difficult task of placing the offence of which the appellant was convicted at an appropriate point on the spectrum of gravity of the offences included within s. 3(2A) of the 1998 Act. Counsel for the prosecution sought to assist by considering the nature of the offence created by s. 3(2A) as compared with other offences created by other subsections of s. 3 of the 1998 Act. Again the Court does not consider such an exercise appropriate rather what ought to have been considered and analysed was the spectrum of wrong doing encompassed within the offences created by s. 3(2A) and from an identification of the facts constituting the offence of which the appellant was convicted, an objective analysis as to where within the spectrum of wrong doing encompassed by s. 3(2A) of the 1998 Act, the offence of which the appellant was convicted lay.
Severity of Sentence
52. The decision of the trial judge accorded with the view of the Director as communicated that the gravity of the offence fell within the middle range and determined that it required, prior to considering mitigating factors, a sentence in the range of six to eight years. There is no doubt, but that the offence of which the appellant was convicted was an intrinsically serious one. By affecting the changes to the 1998 act which it has in both the 2007 Act and the 2008 Act the Oireachtas clearly recognised that the pre-existing law in relation to contacts between an adult and a child with a view to the sexual exploitation of the child by the adult was inadequate. The new offence contained in 3(2A) of the 1998 Act is accordingly designed to protect young persons against the designs of those who would exploit their youthful innocence and vulnerability.

53. Can, however the offence committed by this particular offender in these particular circumstances be properly characterised as one meriting a sentence in the range of six to eight years as a starting point prior to any questions of mitigation? It is important to note that any offence of this nature involving a purpose of sexual exploitation of a child by a significantly older adult is, by definition, a serious and grave offence. Nothing in this judgment should be taken as detracting from that assessment. It may be helpful to observe that descriptions or labels of particular criminal conduct as being within a “lower range” or “mid range” whether on the spectrum of severity or range of sentences may sometimes give a false or misleading impression, not least in cases of this kind. However, such descriptions are of assistance to sentencing judges and in the interest of achieving consistent sentences. In relation to this offence such description must be understood in the context of what is at any point on the spectrum a serious and grave offence.

54. The essential ingredients of the offence committed contrary to s. 3(2A) of the 1998 Act are:-

a. that the appellant was travelling with the intention of meeting Ms. F. (a child); and
b. that he had met or communicated with Ms. F. on two or more previous occasions; and

c. he travelled to meet for the purpose of doing anything that would constitute sexual exploitation of Ms. F.

55. Any assessment of the gravity of the offence of which the appellant was convicted and the appropriate sentence before taking into account the mitigating factors requires an examination of the admitted facts at the sentencing hearing in relation to the above ingredients of the offence by reference to the spectrum of offences under s. 3(2A) for which the Oireachtas has prescribed a maximum penalty of fourteen years and no minimum penalty. Regrettably no such assessment appears to have been made by the trial judge. Whilst the facts in relation to (a) and (b) above are clear, there appears to be a lack of clarity as to the precise factual ingredients of the offence of which the appellant was convicted in relation to the purpose for which the appellant was travelling to meet Ms. F.
56. The sentence hearing and the trial judge’s subsequent sentence ruling appear to have proceeded on the basis that the purpose of the appellant in travelling to meet Ms. F. was to invite (or perhaps, induce) Ms. F. to engage in a sexual act by either masturbating him or performing some act of oral sex. There was no suggestion, on the facts adduced of an intention by the appellant to coerce Ms. F. to commit or perform such acts. The reason for which we refer to a possible inducement is the evidence of the offer made by the appellant in a phone call with Ms. F. to bring her phone credit and alcohol. However as against that, the trial judge in her sentencing remarks refers to Ms. F as a “willing participant”. There was no analysis or determination of the basis upon which the actual purpose of the appellant in meeting Ms. F. if carried out would have constituted sexual exploitation as defined by s. 3(5) of the 1998 Act. The trial judge referred to the admission made by the appellant in Garda interview of wanting to meet Ms. F. for “a sexual act” and an indication given by him of masturbation and oral sex, but his denial of any intention of full intercourse. This Court is not aware of the evidence or submissions at the trial before the jury. It does not appear from the transcript of the sentence hearing and decision of the trial judge that there was any analysis at that stage of the basis upon which the admissions made or facts proved constituted sexual exploitation as defined by s. 3(5) of the 1998 Act. As the relevant purpose of the meeting would have to have been proved beyond reasonable doubt, in the absence of compelling evidence of an intention to induce Ms. F. to perform a sexual act, it appears that the sentencing of the appellant either did or should have proceeded upon the basis of the relevant purpose being to invite Ms. F. to engage or participate in a sexual act within the meaning of s. 3(5)(d). The commission of such a sexual act even with the consent of the child under the age of fifteen years would also constitute the commission of a sexual assault which is a scheduled offence to the Sex Offenders Act 2001 and hence also come within s. 3(5)(c) of the 1998 Act and thereby sexual exploitation as defined.

57. Notwithstanding that this is as we have already stated an intrinsically serious offence which is gravely wrong, nevertheless its relative gravity ought to have been considered in the context of the wide range of situation which may constitute offences under s. 3(2A) of the 1998 Act and in particular the wide range of purposes which would constitute sexual exploitation of a child within the meaning of s. 3(5). The trial judge erred in failing to do this.

58. A consideration of the wide definition and generality of the term “sexual exploitation” in s. 3(5) of the 1998 Act, makes clear that there are many purposes included therein, which are significantly more morally reprehensible and egregious than the purpose of the meeting in this case and for all of which the Oireachtas has imposed for an offence contrary to s. 3(2A) a maximum sentence of fourteen years. These include, for example, meeting a child for the purpose of coercion to perform any sexual act or coercion to engage in full intercourse, prostitution or coercion into child pornography or for rape or buggery. It is in the context of the wide definition of sexual exploitation for the purposes of offences coming within the scope of s. 3(2A) that the gravity of the particular offence of which the appellant was convicted ought to have been considered.

59. The Court also considers it relevant to take into consideration the circumstances in which the appellant came to be travelling to meet the child in determining the gravity of his offence. This Court considers it relevant to an assessment of the gravity of the offence that the appellant, in May 2011, upon being told the age of the child, did cease contact and that the contact was renewed by Ms. F. and that the arrangements to meet were made during a conversation which the appellant thought he was having with Ms. F. but in fact was having with her mother. These latter circumstances do not excuse the wrongdoing by the appellant and the commission of the offence, but are relevant to take into account in considering the gravity of the offence committed.

60. The Court considers that the trial judge erred in principle in not considering the relative gravity of the offence committed by reference to the facts admitted or proved in the context of the full spectrum of potential offences contrary to s. 3(2A) of 1998 Act, particularly by reference to the wide range of matters defined as constituting sexual exploitation in s. 3(5). Further the Court considers that this error in principle lead her in error to decide that the gravity of this particular offence in the circumstances in which it was committed fell within the mid range of offences contrary to s. 3(2A) such that before consideration of mitigating factors a sentence in the range of six to eight years was appropriate. In this Court’s view this was a disproportionate starting point for the appropriate sentence for the offence committed by the appellant and lead to an unduly severe sentence of four years.

61. Accordingly the Court will allow the appeal and will hear further submissions prior to determining the appropriate sentence.
Mitigating Factors
62. As the appeal is being allowed, and this Court will have to sentence the appellant, it appears appropriate to set out shortly this Court’s view on the grounds of appeal which related to the mitigating factors.

63. The first ground related to the trial judge’s view that the offer of compensation was “not appropriate in the circumstances of this case”. The court considers that the trial judge was correct in her conclusion that this was not an appropriate case in which compensation could or should have played any role so far as the imposition of sentence is concerned.

64. Apart from any other consideration relating to the nature of the offence, the power of the court to direct the payment of compensation in cases of this kind is contained in s. 6 of the Criminal Justice Act 1993. This section provides in relevant part as follows:

“(1) Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a “compensation order”) requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this Act referred to as the “injured party”) who has suffered such injury or loss.
(2) The compensation payable under a compensation order . . . shall be of such amount . . . as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.

(5) In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard –

(a ) to his means . . .
(13) In assessing for the purposes of this section the means of a person, the court shall take into account his financial commitments.”
65. Whilst this was an offence which was tried on indictment and therefore the section prima facie applies the permitted order is one requiring the convicted person to “pay compensation in respect of any personal injury or loss resulting from that offence . . . to any person . . . who has suffered such injury or loss”. The offence of which the appellant was convicted was one of travelling to meet for a particular purpose. The meeting never took place. On the admitted facts upon which the sentencing hearing was based, there was happily no evidence of any personal injury or loss to Ms. F. resulting from the offence.

66. Accordingly this Court considers, apart from any other reason for which compensation may not have been appropriate, s. 6 did not apply to the admitted facts.

67. The final ground pursued, was that the trial judge in her sentencing remarks indicated that she was in effect penalising the appellant for having pleaded not guilty and requiring every aspect of the case against him be proved. This submission arose by reason of an exchange with counsel at the sentencing hearing as to whether the trial judge could have regard to “the manner in which the trial was run and the putting on proof of every garda witness in the case” and her statement in her decision on sentence “I am not in a position to give any credit for the accused due the manner in which the matter has proceeded”.

68. It is of course well settled that a convicted person should not be penalised for exercising his constitutional right to plead not guilty and to have the case against him proved: see The People (DPP) v Shekale [2008] IECCA 28 per Finnegan J. and The People (DPP) v Daly [2012] 1 I.R. 476, per McKechnie J. In Shekale, Finnegan J. stated:-

“To penalise someone for exercising his constitutional right, to plead not guilty and have the case against him proved, would be wrong and if that is what occurred in this case it would indeed be wrong.”
This Court agrees with that statement of principle and also finds itself in the same position as did Finnegan J. in Shekale in the sense that “if that is what occurred in this case it would indeed be wrong”. Notwithstanding the exchange with counsel, this Court is not satisfied that that is what occurred. It appears more likely that the trial judge was simply indicating, as she was entitled to do, that the fact that the appellant did not plead guilty deprived him of credit as a mitigating factor to which he would have been entitled if he had done so.
Conclusion
69. The Court will accordingly allow the appeal, vacate the sentence imposed on the appellant and remand the appellant in custody pending a sentencing hearing and decision on sentence by this Court.

 

The People v M.

[1994] 2 ILRM 541 Egan J

On 27 November 1992 the appellant was sentenced to the following terms of imprisonment following his pleas of guilty in the Central Criminal Court.

Count 3: Buggery with a male person on a date unknown in 1989 contrary to s. 61 of the Offences Against the Person Act 1861.

Sentence imposed: 18 years’ penal servitude.

Count 13: Buggery with the same person on a date unknown in May 1990 contrary to the same section.

Sentence imposed: 18 years’ penal servitude.

Count 20: Buggery with another male person on a date unknown in autumn 1989 contrary to the same section.

Sentence imposed: 18 years’ penal servitude.

Count 30: Indecent assault on a date unknown in the first week of November 1991 contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990.

Sentence imposed: Four years’ imprisonment.

Count 43: Indecent assault on a male person contrary to s. 62 of the Offences Against the Person Act 1861.

Sentence imposed: nine years’ imprisonment.

Count 44: Indecent assault on a male person on a date unknown between January 1985 and December 1985 contrary to s. 62 of the Offences Against the Person Act 1861.

Sentence imposed: Nine years’ imprisonment.

Count 61: Sexual assault on a date unknown in February 1991 by the insertion of his penis in the anus of another person contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.

Sentence imposed: 18 years’ imprisonment.

Count 62: A similar sexual assault on a date unknown in September 1991 on the same person.

Sentence imposed: 18 years’ imprisonment.

The appellant now appeals to this Court against the severity of these sentences.

The appellant was at the time of the commission of the said offences a brother in religion and the victims of the assault were young boys at the school at which he was teaching. They were aged between ten and twelve years at the times of the commission of the various offences.

The notice of appeal sets out three grounds:

(a) That the sentences passed by the learned trial judge were excessive and inappropriate having regard to the circumstances of the case.

(b) That the learned trial judge erred in the circumstances of the case in failing to permit the appellant to complete a course of treatment being undergone by him in relation to his offences either as an alternative to or prior to the imposition of a custodial sentence upon him.

(c) That the learned trial judge erred in law in finding himself constrained in the circumstances of the appellant’s case by the decision of this Court in the case of People (DPP) v. Tiernan [1988] IR 250.

Ground (b) was not pursued as the court was informed that treatment is no longer available in the institution where the appellant had been getting attention. The arguments which were advanced to the court on behalf of the appellant were to the effect that no weight or no sufficient weight had been given by the learned trial judge to many mitigating factors which can be summarised as follows:

1. The appellant’s age. I will refer to this later.

2. The background of the appellant who entered into religious life at a very early age, his work as a teacher in religious communities of only two or three members which meant that he did not have the support of a large community thus indicating an isolated life.

3. When confronted with allegations in reference to misconduct with two of the six boys involved in this case, he admitted his guilt.

4. He gave considerable assistance to the gardaí by making written confessions in regard to the other four boys involved without which the learned trial judge accepted that perhaps some of the charges preferred against the appellant might not be sustainable.

5. He committed himself apparently wholeheartedly to psychiatric treatment when it was available.

6. He has shown remorse and this was accepted by the learned trial judge.

7. Imprisonment is particularly difficult for a child abuser and the appellant for his own protection, had to spend a period in solitary confinement.

8. The community of which the appellant is a brother is strongly committed to him and to helping him and supervising him when he leaves prison.

9. He has shown strength of character by coping successfully with the problem of alcoholism.

It was also urged before the learned trial judge that paedophilia was a disease and this was accepted by him. There was no evidence, however, to suggest that it was incapable of control and the fact of there being a strong element of compulsion in the condition highlights the necessity of protecting young children from the resulting misconduct.

There can be no doubt whatever but that the appellant committed very serious offences. The majority of the six children involved have been disturbed and damaged and will require continued psychiatric counselling. It must also be remembered that there was an appalling breach of trust by the appellant towards the parents of the boys and the six innocent boys themselves.

To my mind the most important mitigating factor in the case is the fact that the appellant admitted his guilt promptly and has pleaded guilty at his trial. This Court recognised that this was an important mitigating factor in cases of rape: People (DPP) v. Tiernan [1988] IR 250. It is only right and proper that this should be so as many victims of rape endure considerable worry about the prospect of giving evidence in court and refuting allegations that they are not telling the truth. In regard to very young boys the worry about giving evidence would be at least as bad, if not worse.

Another factor in the case is the question of the likelihood of a recurrence of the misconduct on the release from prison of the appellant. During the years when the offences were committed he was constantly in the company of young boys who were an undoubted temptation for him having regard to his propensities. If he returns to his religious community his superiors will see to it that he will not have the same opportunities and, should he seek a post elsewhere, it would seem unthinkable that a reference would not be sought from his present superiors.

His age, to which I have already referred, appears to me to be relevant. The appellant at the time he was sentenced in the Central Criminal Court in November 1992 was just over 50 years of age. If he were to serve the sentence imposed on him on that occasion in regard to the more serious counts on which he appeared without making any allowance for remission of sentence due to good conduct he would be 68 years of age when he left prison. If one makes an assumption that he would earn a maximum remission by good conduct his age on release might be in the mid 60s.

As was stated in the judgments of the Court of Criminal Appeal in People (Attorney General) v. O’Driscoll (1971) 1 Frewen 351 and in People (Attorney General) v. Poyning [1972] IR 402 an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such person so as to re-enter into society after a period of imprisonment. This is clearly not a case in which it could be said that there is no reasonable possibility of the accused re-entering society as a rehabilitated member of it after a substantial period of imprisonment.

One of the ingredients in that possibility of rehabilitation clearly would appear to be the maintenance during the period of imprisonment involved of an element of hope and of something to look forward to which gives motivation for the self-improvement and rehabilitation necessary. This has been described in some of the literature as the light at the end of the tunnel.

In my view, it follows from these considerations applied to the facts of this case that the stage at which the accused would, having regard to the sentence imposed re-enter into society, and the age he would be at that time and on normal expectation of life the period remaining of life in front of him would all be material matters.

Viewed in the light of this when added to the matters already referred to it would seem to me that some significant reduction in the maximum sentence imposed would be appropriate and that there has been in the form of the sentence imposed an error in principle.

The Chief Justice in Tiernan’s case (supra) stated as follows (at p. 254):

Having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.

The learned trial judge took the view that this was ‘the worst case to come before the Central Criminal Court’ to his knowledge. I find it difficult to agree with this. There have been many cases of brutal and violent murders, rapes (including Tiernan’s case) which would be regarded by many people as being even more serious.

There was no evidence or suggestion of brutality or violence in the present case and although, as previously stated, it is a most serious case, it would seem that the very extreme view taken by the learned trial judge undoubtedly coloured his assessment of the appropriate sentences. This is instanced by the fact that in counts where a maximum sentence of ten years was permissible, he imposed sentences of nine years. A reduction of 10% does not appear to me to be a sufficient recognition of the requirement to mitigate.

It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.

Having regard to the foregoing I am satisfied that the sentences imposed by the learned trial judge were excessive and should be reduced as follows:

Counts 3, 13, 20, 61 and 62

The reduction in each case should be from eighteen years to twelve years.

Counts 43 and 44

The reduction should be from nine years to seven years.

Count 30

The reduction should be from four years to three years.

DENHAM J

(Finlay CJ, O’Flaherty and Blayney JJ concurring): This is an appeal by the accused/appellant, hereinafter referred to as the appellant, against the sentences passed by the learned trial judge on 27 November 1992 on the grounds that the sentences were excessive and inappropriate having regard to the circumstances of the case.

The facts have been fully stated in the judgment of Egan J and it is not necessary to repeat them. The appellant was before the Central Criminal Court on an indictment containing 68 charges of illicit sexual activities with boys in the school in which he was a teacher. He pleaded guilty to eight of the counts and received a sentence in relation to each, which sentences ranged from 18 years’ penal servitude to four years’ imprisonment.

Proportionality
Sentences should be proportionate. Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected by a severe sentence.

The facts of this case indicate grave offences by a person in a position of trust committed over years in an escalating cycle of abuse to six boys. It was a planned system of extensive child abuse typical of the compulsive behaviour found in paedophilia. Child abuse is a gross attack on human dignity, bodily integrity and a violation of constitutional rights.

The nature of the offences would attract immediate and long custodial sentences. Thus, the sentences imposed by the learned trial judge are not intrinsically wrong in principle.

However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.

In People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359 Walsh J stated:

The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case — not only in regard to the particular crime but in regard to the particular criminal.

In a similar vein there is constitutional protection. In State (Healy) v. Donoghue [1976] IR 325 at p. 353 Henchy J stated that the Constitution guarantees that a citizen shall not be deprived of his liberty by a trial conducted so as to shut out ‘a sentence appropriate to his degree of guilt and his relevant personal circumstances’.

Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered. I shall return to them at a later stage in the judgment.

The victims
Sentencing is neither an exercise in vengeance, nor is it the retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the court in sentencing. See People (DPP) v. Tiernan [1988] IR 250 at p. 253 where the Chief Justice recited effects of the crime of rape on victims.

In this case the learned trial judge had before him reports on five of the children furnished by the childcare experts from the appropriate health board area. He found that one child’s parents declined medical assistance but of the five others one child will require long term counselling and support with his schooling; one child has improved and continues to have counselling; one child is very disturbed and is a damaged child and will require long term and regular counselling and it is feared that he will have long term negative effects resulting from the abuse; one child has serious continuing psychiatric problems and will need regular on-going counselling with a fear that he will have long term negative effects resulting from the abuse; and one child has equally serious problems requiring long term counselling together with a serious guilt burden associated with a long period of abuse going into years.

The nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims.

Conflicting principles
Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed, inter alia, in a plea of guilty, which in principle reduce the sentence.

Preventative sentencing
In contemplating the sentences it is appropriate to consider the offences and their nature and their circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the future so as to prevent him commiting further offences: he is sentenced solely for the offences before the court. In People (Attorney General) v. O’Callaghan [1966] IR 501 at p. 516 Walsh J stated:

In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.

Mitigating factors
Having established the gravity of the offence and thus the nature of the punishment in principle, I now return to consider the severity of sentence in view of the particular circumstances of the case. The question is whether the learned trial judge erred in principle in determining the length of sentence by not taking into account, or not taking into account adequately, the particular circumstances of these offences, including the mitigating factors.

1. Plea

The first and most important mitigating circumstance of the appellant is his plea of guilty, which was an early plea and which was followed up by a further statement relating to other offences. It is settled law that an early admission is a mitigating factor in the offence of rape: People (DPP) v. Tiernan. I am satisfied that it is of equal importance in the offences of child abuse including buggery under s. 61 of the Offences Against the Person Act 1861 and rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. Even with modern legal procedures the trauma of anticipating and ultimately going to court are serious concerns for children and it is a sound policy to shield them, if appropriate, from the necessity of the court procedure including as it does cross examination. Thus, a plea of guilty may be an important mitigating factor, which is further enhanced by an early indication that it will occur. The amount of mitigation will depend on the circumstances, including the likelihood of conviction if there had been no plea. There may be circumstances where a plea is discounted, for example where the accused is caught in flagrante delicto and his conviction is not a matter for doubt. However, the plea in this case was not such.

2. Personal circumstances, including age

The personal circumstances, including age, of the appellant must be considered and may be a mitigating factor. In this case they indicate a life of personal isolation. The appellant joined the religious order when he was 13 years old, had a very protected unnatural and isolated youth with minimal contact with his family, members of the opposite sex and the national community; in fact he was brought up in a regime not now followed. He then spent his working life as a member of the order teaching in provincial towns and living, not in a large supportive religious community, but in local religious communities of two or three members. The isolation of his life is a factor in his personal circumstances.

In addition I agree with Egan J that the age of the convicted person may be a ground for mitigation. In this case the appellant will be in his final trimester of life when he is considered for remission. Age is thus relevant to the concept of keeping the light at the end of the tunnel visible, with the consequent effect on motivation and rehabilitation.

3. Propensity

The appellant has expressed genuine remorse and has undergone treatment to attempt to control his behaviour. He has indicated a willingness to undergo assistance to learn to control his propensity for paedophilia. His previous record indicates that he will strive to be successful. Any such programme in aid of the appellant is a matter not only in ease of the appellant, but is of importance to the community. Thus, his recognition of the situation indicates a step toward control and toward rehabilitation. In this context the safety net afforded by his order is another relevant factor.

4. Undertaking by order

On his release the appellant will be returning to his order, who will look after him. The provincial of the order to which the appellant belongs gave an undertaking to the High Court on behalf of the order that the appellant will never teach again and that he will never again be in a position of power in relation to children or have access to children. Thus, he will be returning to a community where he will have no access to children.

The appellant has indicated his firm wish to remain in the order and so long as that is his wish he will be kept and looked after by them. If for any reason he determines not to remain a member of the congregation the order will continue to look after his welfare. This safety net which will hold the appellant on his release is a relevant factor.

Taking into account the previously related factors and viewing these very serious offences in their particular circumstances, I am satisfied that the learned trial judge did not take into account sufficiently the mitigating factors and that he erred in principle in determining the length of sentences.

I agree with Egan J as to the sentences to be imposed.

The People v M.

[1994] 2 ILRM 541 Egan J

On 27 November 1992 the appellant was sentenced to the following terms of imprisonment following his pleas of guilty in the Central Criminal Court.

Count 3: Buggery with a male person on a date unknown in 1989 contrary to s. 61 of the Offences Against the Person Act 1861.

Sentence imposed: 18 years’ penal servitude.

Count 13: Buggery with the same person on a date unknown in May 1990 contrary to the same section.

Sentence imposed: 18 years’ penal servitude.

Count 20: Buggery with another male person on a date unknown in autumn 1989 contrary to the same section.

Sentence imposed: 18 years’ penal servitude.

Count 30: Indecent assault on a date unknown in the first week of November 1991 contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990.

Sentence imposed: Four years’ imprisonment.

Count 43: Indecent assault on a male person contrary to s. 62 of the Offences Against the Person Act 1861.

Sentence imposed: nine years’ imprisonment.

Count 44: Indecent assault on a male person on a date unknown between January 1985 and December 1985 contrary to s. 62 of the Offences Against the Person Act 1861.

Sentence imposed: Nine years’ imprisonment.

Count 61: Sexual assault on a date unknown in February 1991 by the insertion of his penis in the anus of another person contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.

Sentence imposed: 18 years’ imprisonment.

Count 62: A similar sexual assault on a date unknown in September 1991 on the same person.

Sentence imposed: 18 years’ imprisonment.

The appellant now appeals to this Court against the severity of these sentences.

The appellant was at the time of the commission of the said offences a brother in religion and the victims of the assault were young boys at the school at which he was teaching. They were aged between ten and twelve years at the times of the commission of the various offences.

The notice of appeal sets out three grounds:

(a) That the sentences passed by the learned trial judge were excessive and inappropriate having regard to the circumstances of the case.

(b) That the learned trial judge erred in the circumstances of the case in failing to permit the appellant to complete a course of treatment being undergone by him in relation to his offences either as an alternative to or prior to the imposition of a custodial sentence upon him.

(c) That the learned trial judge erred in law in finding himself constrained in the circumstances of the appellant’s case by the decision of this Court in the case of People (DPP) v. Tiernan [1988] IR 250.

Ground (b) was not pursued as the court was informed that treatment is no longer available in the institution where the appellant had been getting attention. The arguments which were advanced to the court on behalf of the appellant were to the effect that no weight or no sufficient weight had been given by the learned trial judge to many mitigating factors which can be summarised as follows:

1. The appellant’s age. I will refer to this later.

2. The background of the appellant who entered into religious life at a very early age, his work as a teacher in religious communities of only two or three members which meant that he did not have the support of a large community thus indicating an isolated life.

3. When confronted with allegations in reference to misconduct with two of the six boys involved in this case, he admitted his guilt.

4. He gave considerable assistance to the gardaí by making written confessions in regard to the other four boys involved without which the learned trial judge accepted that perhaps some of the charges preferred against the appellant might not be sustainable.

5. He committed himself apparently wholeheartedly to psychiatric treatment when it was available.

6. He has shown remorse and this was accepted by the learned trial judge.

7. Imprisonment is particularly difficult for a child abuser and the appellant for his own protection, had to spend a period in solitary confinement.

8. The community of which the appellant is a brother is strongly committed to him and to helping him and supervising him when he leaves prison.

9. He has shown strength of character by coping successfully with the problem of alcoholism.

It was also urged before the learned trial judge that paedophilia was a disease and this was accepted by him. There was no evidence, however, to suggest that it was incapable of control and the fact of there being a strong element of compulsion in the condition highlights the necessity of protecting young children from the resulting misconduct.

There can be no doubt whatever but that the appellant committed very serious offences. The majority of the six children involved have been disturbed and damaged and will require continued psychiatric counselling. It must also be remembered that there was an appalling breach of trust by the appellant towards the parents of the boys and the six innocent boys themselves.

To my mind the most important mitigating factor in the case is the fact that the appellant admitted his guilt promptly and has pleaded guilty at his trial. This Court recognised that this was an important mitigating factor in cases of rape: People (DPP) v. Tiernan [1988] IR 250. It is only right and proper that this should be so as many victims of rape endure considerable worry about the prospect of giving evidence in court and refuting allegations that they are not telling the truth. In regard to very young boys the worry about giving evidence would be at least as bad, if not worse.

Another factor in the case is the question of the likelihood of a recurrence of the misconduct on the release from prison of the appellant. During the years when the offences were committed he was constantly in the company of young boys who were an undoubted temptation for him having regard to his propensities. If he returns to his religious community his superiors will see to it that he will not have the same opportunities and, should he seek a post elsewhere, it would seem unthinkable that a reference would not be sought from his present superiors.

His age, to which I have already referred, appears to me to be relevant. The appellant at the time he was sentenced in the Central Criminal Court in November 1992 was just over 50 years of age. If he were to serve the sentence imposed on him on that occasion in regard to the more serious counts on which he appeared without making any allowance for remission of sentence due to good conduct he would be 68 years of age when he left prison. If one makes an assumption that he would earn a maximum remission by good conduct his age on release might be in the mid 60s.

As was stated in the judgments of the Court of Criminal Appeal in People (Attorney General) v. O’Driscoll (1971) 1 Frewen 351 and in People (Attorney General) v. Poyning [1972] IR 402 an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such person so as to re-enter into society after a period of imprisonment. This is clearly not a case in which it could be said that there is no reasonable possibility of the accused re-entering society as a rehabilitated member of it after a substantial period of imprisonment.

One of the ingredients in that possibility of rehabilitation clearly would appear to be the maintenance during the period of imprisonment involved of an element of hope and of something to look forward to which gives motivation for the self-improvement and rehabilitation necessary. This has been described in some of the literature as the light at the end of the tunnel.

In my view, it follows from these considerations applied to the facts of this case that the stage at which the accused would, having regard to the sentence imposed re-enter into society, and the age he would be at that time and on normal expectation of life the period remaining of life in front of him would all be material matters.

Viewed in the light of this when added to the matters already referred to it would seem to me that some significant reduction in the maximum sentence imposed would be appropriate and that there has been in the form of the sentence imposed an error in principle.

The Chief Justice in Tiernan’s case (supra) stated as follows (at p. 254):

Having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.

The learned trial judge took the view that this was ‘the worst case to come before the Central Criminal Court’ to his knowledge. I find it difficult to agree with this. There have been many cases of brutal and violent murders, rapes (including Tiernan’s case) which would be regarded by many people as being even more serious.

There was no evidence or suggestion of brutality or violence in the present case and although, as previously stated, it is a most serious case, it would seem that the very extreme view taken by the learned trial judge undoubtedly coloured his assessment of the appropriate sentences. This is instanced by the fact that in counts where a maximum sentence of ten years was permissible, he imposed sentences of nine years. A reduction of 10% does not appear to me to be a sufficient recognition of the requirement to mitigate.

It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.

Having regard to the foregoing I am satisfied that the sentences imposed by the learned trial judge were excessive and should be reduced as follows:

Counts 3, 13, 20, 61 and 62

The reduction in each case should be from eighteen years to twelve years.

Counts 43 and 44

The reduction should be from nine years to seven years.

Count 30

The reduction should be from four years to three years.

DENHAM J

(Finlay CJ, O’Flaherty and Blayney JJ concurring): This is an appeal by the accused/appellant, hereinafter referred to as the appellant, against the sentences passed by the learned trial judge on 27 November 1992 on the grounds that the sentences were excessive and inappropriate having regard to the circumstances of the case.

The facts have been fully stated in the judgment of Egan J and it is not necessary to repeat them. The appellant was before the Central Criminal Court on an indictment containing 68 charges of illicit sexual activities with boys in the school in which he was a teacher. He pleaded guilty to eight of the counts and received a sentence in relation to each, which sentences ranged from 18 years’ penal servitude to four years’ imprisonment.

Proportionality
Sentences should be proportionate. Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected by a severe sentence.

The facts of this case indicate grave offences by a person in a position of trust committed over years in an escalating cycle of abuse to six boys. It was a planned system of extensive child abuse typical of the compulsive behaviour found in paedophilia. Child abuse is a gross attack on human dignity, bodily integrity and a violation of constitutional rights.

The nature of the offences would attract immediate and long custodial sentences. Thus, the sentences imposed by the learned trial judge are not intrinsically wrong in principle.

However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.

In People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359 Walsh J stated:

The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case — not only in regard to the particular crime but in regard to the particular criminal.

In a similar vein there is constitutional protection. In State (Healy) v. Donoghue [1976] IR 325 at p. 353 Henchy J stated that the Constitution guarantees that a citizen shall not be deprived of his liberty by a trial conducted so as to shut out ‘a sentence appropriate to his degree of guilt and his relevant personal circumstances’.

Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered. I shall return to them at a later stage in the judgment.

The victims
Sentencing is neither an exercise in vengeance, nor is it the retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the court in sentencing. See People (DPP) v. Tiernan [1988] IR 250 at p. 253 where the Chief Justice recited effects of the crime of rape on victims.

In this case the learned trial judge had before him reports on five of the children furnished by the childcare experts from the appropriate health board area. He found that one child’s parents declined medical assistance but of the five others one child will require long term counselling and support with his schooling; one child has improved and continues to have counselling; one child is very disturbed and is a damaged child and will require long term and regular counselling and it is feared that he will have long term negative effects resulting from the abuse; one child has serious continuing psychiatric problems and will need regular on-going counselling with a fear that he will have long term negative effects resulting from the abuse; and one child has equally serious problems requiring long term counselling together with a serious guilt burden associated with a long period of abuse going into years.

The nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims.

Conflicting principles
Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed, inter alia, in a plea of guilty, which in principle reduce the sentence.

Preventative sentencing
In contemplating the sentences it is appropriate to consider the offences and their nature and their circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the future so as to prevent him commiting further offences: he is sentenced solely for the offences before the court. In People (Attorney General) v. O’Callaghan [1966] IR 501 at p. 516 Walsh J stated:

In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.

Mitigating factors
Having established the gravity of the offence and thus the nature of the punishment in principle, I now return to consider the severity of sentence in view of the particular circumstances of the case. The question is whether the learned trial judge erred in principle in determining the length of sentence by not taking into account, or not taking into account adequately, the particular circumstances of these offences, including the mitigating factors.

1. Plea

The first and most important mitigating circumstance of the appellant is his plea of guilty, which was an early plea and which was followed up by a further statement relating to other offences. It is settled law that an early admission is a mitigating factor in the offence of rape: People (DPP) v. Tiernan. I am satisfied that it is of equal importance in the offences of child abuse including buggery under s. 61 of the Offences Against the Person Act 1861 and rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. Even with modern legal procedures the trauma of anticipating and ultimately going to court are serious concerns for children and it is a sound policy to shield them, if appropriate, from the necessity of the court procedure including as it does cross examination. Thus, a plea of guilty may be an important mitigating factor, which is further enhanced by an early indication that it will occur. The amount of mitigation will depend on the circumstances, including the likelihood of conviction if there had been no plea. There may be circumstances where a plea is discounted, for example where the accused is caught in flagrante delicto and his conviction is not a matter for doubt. However, the plea in this case was not such.

2. Personal circumstances, including age

The personal circumstances, including age, of the appellant must be considered and may be a mitigating factor. In this case they indicate a life of personal isolation. The appellant joined the religious order when he was 13 years old, had a very protected unnatural and isolated youth with minimal contact with his family, members of the opposite sex and the national community; in fact he was brought up in a regime not now followed. He then spent his working life as a member of the order teaching in provincial towns and living, not in a large supportive religious community, but in local religious communities of two or three members. The isolation of his life is a factor in his personal circumstances.

In addition I agree with Egan J that the age of the convicted person may be a ground for mitigation. In this case the appellant will be in his final trimester of life when he is considered for remission. Age is thus relevant to the concept of keeping the light at the end of the tunnel visible, with the consequent effect on motivation and rehabilitation.

3. Propensity

The appellant has expressed genuine remorse and has undergone treatment to attempt to control his behaviour. He has indicated a willingness to undergo assistance to learn to control his propensity for paedophilia. His previous record indicates that he will strive to be successful. Any such programme in aid of the appellant is a matter not only in ease of the appellant, but is of importance to the community. Thus, his recognition of the situation indicates a step toward control and toward rehabilitation. In this context the safety net afforded by his order is another relevant factor.

4. Undertaking by order

On his release the appellant will be returning to his order, who will look after him. The provincial of the order to which the appellant belongs gave an undertaking to the High Court on behalf of the order that the appellant will never teach again and that he will never again be in a position of power in relation to children or have access to children. Thus, he will be returning to a community where he will have no access to children.

The appellant has indicated his firm wish to remain in the order and so long as that is his wish he will be kept and looked after by them. If for any reason he determines not to remain a member of the congregation the order will continue to look after his welfare. This safety net which will hold the appellant on his release is a relevant factor.

Taking into account the previously related factors and viewing these very serious offences in their particular circumstances, I am satisfied that the learned trial judge did not take into account sufficiently the mitigating factors and that he erred in principle in determining the length of sentences.

I agree with Egan J as to the sentences to be imposed.