Sex Offences Sentences II
Cases
People (DPP) v Krol
[2017] IECA 205
JUDGMENT of the Court (ex tempore) delivered on the 22nd day of June 2017 by Mr. Justice Birmingham
1. The matter before the Court sees the DPP seeking, pursuant to s. 2 of the Criminal Justice Act 1993, a review of a sentence that was imposed on the respondent, Mr. Krol. The sentence sought to be reviewed is one of two years imprisonment, wholly suspended, that was imposed in respect of one count of sexual assault in the Circuit Court in Cork on 1st November, 2016.
2. The background to the matter coming before the courts is to be found in events that occurred on 1st February, 2016. On that occasion the injured party, Ms. H., had been out socialising with friends in Cork city centre. A stage was reached where she parted company from her friends. She was feeling tired. At approximately 1.20 am Gardaí were contacted by a member of the public who had concerns about the safety of a female. Garda John Twomey responded to the call and when he came on the scene he found a female whom he believed to be in her twenties in the arms of a male whom he believed to be in his fifties. The female appeared to be passed out and to be slumped over. The male was caressing her and kissing her neck. Gardaí approached and separated the couple. It was obvious that the female was unresponsive and had passed out. When she woke and Gardaí pointed out the male to her, she indicated that she did not know him and did not know that she had been in his arms. Gardaí reunited Ms. H. with her friends and made sure that she got home safely. The following evening, when Garda Twomey was again on duty, he viewed CCTV footage from the scene which revealed that the incident was more serious than had first been realised. The footage showed that the male had opened the female’s pants, had his hands inside her pants, and was touching her. When the Gardaí arrived the pants had been closed again and she was fully clothed. The injured party was informed of the details of what had emerged from the CCTV footage and having taken time to consider her position, provided Gardaí with a statement of complaint. The respondent was then arrested on 1st April, 2016 and, having being shown the CCTV footage, made admissions.
3. The Court was provided with details of a Victim Impact Report. In it, the injured party, who was 25 years of age, explained that she was horrified and extremely embarrassed when she came to view the footage. She explained that her general practitioner had advised her to attend cognitive behavioural therapy sessions and that she had done this. Significantly, she commented that the thought of speaking in court made her very anxious. She was, she said, “absolutely dreading it”. The complainant said that it was a relief to learn that a guilty plea had been entered which meant that she would not have to relive the experience in front of a court room, adding “I am so glad that the person concerned acknowledged and accepted the crime he committed”. The injured party added that overall it had not been a pleasant experience but that she hoped to be able to put it behind her and to move on with her life.
4. In terms of the background and circumstances of the respondent, he was a 53 year old man at the time of the assault, a Polish national, and worked as a handyman and painter. In the course of the evidence offered to the Court by the investigating Garda, it emerged that the then accused had very poor English indeed.
5. The sentencing judge referred to the general obligations on a court when sentencing and then commented as follows:-
“[T]he first matter I must look at is to see whether there are aggravating circumstances. It is a sexual assault described by [defence counsel] as opportunistic in the sense that the victim was clearly not in a position to resist. In the scale of things, I don’t believe there are, as such, aggravating factors. It is an assault, freestanding and in it of itself. On the scale of things, I view this as residing between the lower to the mid end of the scale and therefore, on preliminary examination and having regard to the scaling I have just applied and before I take into account the mitigating and other circumstances, this sentence — this matter rather would ordinarily attract a sentence of three years imprisonment.
There are mitigating factors. The CCTV having been harvested, Mr. Krol did own up fairly readily and apologised. He pleaded relatively early in the process and this, I am assured by the victim herself, is a point which gave her some solace, that she was somewhat terrified, understandably, of having to come into court and give evidence. So she got some solace from that and clearly she was saved the trauma, then, of having to come into court and give evidence. The accused also saved the State a lengthy trial and these are matters of mitigation. I must also have regard to his personal circumstances, he’s a man of 53 years of age, he’s lived in Ireland for 11 years, originally from Poland and his English is not very good, as I understand it. He is a person who has suffered, in the recent past, from a heart condition and has had a stent imposed and is medicated around that. He is a man who works as a handyman by way of a DIY painter but I understand also and am informed that this is his first offence. [Counsel for the defence] impresses upon the Court that a sentence imposed on a foreigner coming into the Irish prison system at that age and with his language difficulties and health difficulties, he would find it difficult. That this was an opportunistic offence, that it wasn’t done with any intentionality. He has no previous convictions and was not before the court previously, wasn’t under a suspended sentence around bail when he committed this offence and no issues around drug misuse have been highlighted in the sentence hearing to date.
Therefore, in light of the mitigating and other circumstances and in light of the initial assessment which I have placed in this matter, the appropriate sentence in my view is a sentence of two years’ imprisonment. The question then is should the Court cause all or any of that sentence to be imposed or should it suspend the sentence in its entirety or substitute it with a community service order. In all the circumstances and having regard to the manner in which the accused has met the trial — the charge, the appropriate sentence in my view is to suspend the matter its entirety. And hopefully, at this point, it will give the victim an opportunity of moving on with her life. I will suspend the matter for a period of three years to ensure compliance and place him under the Probation Service for a period of one year, immediately. And he will abide by all directions given by the Probation Service and that he will be required to pay the sum of €400 within 12 months from today for the purposes of the expenses incurred by the victim in attending for therapy. If those monies are not paid it will trigger the sentence.”
6. The judge’s comment that he did not believe there were, as such, aggravating factors at first might seem somewhat surprising. In written and oral submissions, the DPP says that there certainly were such aggravating factors. It is said that the judge erred in placing the offence at the lower to mid end of the scale in circumstances where the complainant was highly vulnerable, had become isolated from her friends and was severely intoxicated. The written submissions go on to refer to the:-
“prolonged and calculated nature of the assault, in the course of which the respondent repeatedly and most invasively groped the complainant’s vagina, having opened her pants while she was unconscious and placed his hand inside her pants.”
7. The Court is not persuaded that the reference to the “prolonged and calculated nature of the assault” and to the repeated and most invasive groping of the complainant’s vagina is fully supported by the evidence of Garda Twomey. There is no doubt, as has been noted above, that the reference to not seeing aggravating factors might seem surprising. In fairness to the trial judge, it is clear that he was fully conscious of the fact that this assault was directed at a woman who was incapable of offering resistance. It may also be that the judge was indicating that there were no factors present such as, for example, gratuitous violence, which were additional to and over and above the essence of the offence that was being dealt with, which was one involving the molestation of a young woman who was unconscious and unable to resist. When this possible interpretation was raised during the course of the appeal hearing by one member of the Court, it drew a firm riposte from counsel for the DPP. Be that as it may, the Court would caution against over-parsing and analysing brief sentencing remarks made immediately after a brief sentencing hearing.
8. At this stage, the principles that apply when courts are dealing with applications to review sentences on grounds of undue leniency are well established and in truth they have not been in doubt or dispute since the first such case of DPP v. Byrne [1995] 1 I.L.R.M. 279. In this case the real issue between the parties is whether the nature of the offence was such that there had to be a custodial sentence actually served and that any sentence which did not include a custodial element had to be seen as an error in principle involving a substantial departure from a sentence that would be regarded as appropriate.
9. In the course of the hearing, this Court drew the attention of the parties to the case of DPP v. Stewart [2016] IECA 369, a case where judgment was delivered on 21st November, 2016 by Edwards J. and provided the parties with an opportunity of making submissions as to its relevance, if any. In the Stewart case, the Court was dealing with a review of a sentence on grounds of undue leniency, the sentence under review being a three year suspended sentence. The background was that the respondent was a member of a cycling group from Northern Ireland who were staying in a hotel in Cavan. In the early hours of the particular morning the respondent encountered the injured party who was asleep or unconscious on a sofa in a hotel foyer. The respondent proceeded to assault the woman in circumstances which included digital penetration.
10. In the course of its judgment, this Court commented at para. 20:-
“After careful consideration we agree that the trial judge was in error in his approach to the assessment of the seriousness of the offence. The scale of available penalties ranged from non-custodial options to a maximum sentence of ten years imprisonment plus a fine. The sentencing judge determined that the offence, before any allowance for mitigating factors, merited a headline sentence of three years imprisonment in the particular circumstances of this case. We would not quarrel with that having regard to the appellant’s culpability and the harm done. However, where the trial judge did fall into error was in believing that this was an offence that could be dealt with by means of a wholly suspended sentence. We consider that this was a case that on any view of it required the imposition of a custodial sentence to be actually served at least in part.”
Then, a little later, at para. 24, Edwards J., on behalf of the Court, commented:-
“Applying that jurisprudence [that is to say the jurisprudence relating to the sentencing of persons of previous good character] to the circumstances of this case, it is necessary to sentence the respondent to a term of imprisonment. We propose to sentencing to the term of three years imprisonment identified by the sentencing judge in the court below as appropriate to the seriousness of the case however, we propose also to suspend all but the last nine months of that three year term.”
11. Having been invited to consider the relevance of Stewart, counsel on either side of the Court took different approaches. Counsel for the respondent contends that the Stewart case was clearly more serious and that was so having regard to a number of factors to which she pointed to. Those included, and were not confined to the fact that it involved digital penetration, that it was a more prolonged incident, that it involved the respondent leaving and returning to his victim, that it involved an element of bragging or bravado, that in that case the victim was left in the public area of the hotel with her legs wide open and her dress pulled up. These were some, but not all, as I have indicated, of the areas where she says the cases can be distinguished.
12. However, on the other side of the coin, there were factors present which were potentially to the advantage of Mr. Stewart. He had married since the incident and was the father of a young daughter with hydocephalus. Any custodial sentence was going to be difficult for him, for his wife and for the young daughter. Prior to the incident, he had been employed as a professional driver with a public transport company in Northern Ireland and because of his involvement in this incident had lost his job.
13. This Court accepts that no two offences are identical and that there are differences between these two offences and, in particular, that there are the differences to which the respondent points. Nonetheless, this Court feels that the comparator is one that is of considerable assistance. Both cases involved assaults on comatose females who were in no position to resist by persons who had not gone out on the evening in question with any intention of committing a serious offence and yet had done so. In the Stewart case, we concluded that the judge fell into error in believing that he was dealing with an offence that could be dealt with by means of a wholly suspended sentence. We are unable to reach any different conclusion in the present case and are likewise of the view that the judge fell into error in believing that the case was one to be dealt with by an entirely non-custodial sentence. An invasive sexual assault on a comatose individual who is not in a position to resist requires to be met by a custodial sentence save in wholly exceptional circumstances. In Stewart, we dealt with the case by leaving the headline sentence that had been identified by the trial judge in place but varying the order of the Circuit Court by suspending, not the entire sentence as the Circuit Court judge had done, but all of the sentence other than the last nine months. In this case we propose to adopt a similar approach.
14. In Stewart, we referred specifically to the fact that we were requiring someone who had initially received an entirely suspended sentence to go into custody and acknowledged that it was all the more difficult for him to face custody at that stage. That is a consideration that applies in this case too and so, as in Stewart, we will impose a sentence that will be less than we would have imposed had we been dealing with the matter at first instance. Having regard to the fact that the judge in this case had decided on a headline sentence somewhat lower than in Stewart and to the fact that there were certain aggravating factors present in Stewart which are not present here, we will deal with the matter by leaving the headline sentence chosen by the trial judge of two years in place and then proceed to suspend all but the last seven and a half months of that sentence. The terms of the suspension will be as in the Circuit Court.
D.P.P. v. D. (J.)
[1997] IEHC 235 (29th July, 1997)
CENTRAL CRIMINAL COURT
Bill No. C.C. 0011 of 1977
BETWEEN
D.P.P.
PLAINTIFF
AND
J D
DEFENDANT
Judgment of Mr. Justice Feargus M. Flood delivered the 29th day of July 1997.
1. The Accused in this matter has pleaded guilty to four counts of rape contrary to Section 4 of the Criminal Law Rape (Amendment) Act, 1990 and three counts of sexual assault contrary to Section 2 of the Criminal Law Rape (Amendment) Act, 1990.
2. The underlining facts of this case are these.
3. In August 1991 Ann K. O’H and her husband B came to reside in a coastal town in the County of Galway with their then two daughters, T aged 16 and F aged 9. Her youngest daughter, Sarah was born shortly thereafter.
4. Her brother-in-law, U. O’H and his wife and two children V. O’H and
5. A. O’H resided nearby. These two children were aged between 5 and 12.
6. S. O’H, a sister of the fathers of both families came to reside nearby and some time later the Accused, an American citizen whom S. O’H had met on holidays came to Ireland and went to reside with S. O’H. He was accepted by the extended family as something of an uncle-like figure. He befriended all the children giving them sweets and indeed acted from time to time as baby-sitter for the respective families. S. O’H, his partner worked during the week and sometimes at weekends and the Accused would be in their house and the children would come up to him.
7. In September 1996, it came to the knowledge of Ann K. O’H through a conversation with her daughter that the Accused used to play games with the children in his home requiring them to strip while he stripped and also requiring them to lick his penis and on occasion he put his tongue in their vaginas and carried out other acts of a crude sexual description.
8. It would appear that this conduct had been going on for something in excess of two years when it was discovered in September 1996.
9. On being confronted by Ann K. O’H and her sister-in-law, S. O’H he admitted his guilt and subsequently after a complaint had been made to the Gardai he made a full statement.
10. After been confronted by the families he left the area and attempted to get an aircraft back to the United States and was apprehended on the aircraft by the Gardai. I have heard evidence from the parents of both these sets of children and it is not too much to say that they were totally shattered by the breach of trust of the Accused whom they had accepted in as part of an extended family. It is fortunate the little children have apparently recovered very well from the experience but there is still grave concern by their parents for their ultimate future good.
11. The offences to which the Accused has pleaded guilty cannot be regarded as anything but serious offences.
12. In background, the Accused is an American born man. He came from a home where violence was prevalent and where he was systematically victimised by his own father. He was a drop-out at school and went on to work in various forms of work including joining the Navy for a short period, a truck driver and ultimately a supervisor in the trucking firm. He sustained quite a serious injury and ultimately obtained compensation in the form of a disability pension. He had been married in 1960 but his marriage broke up in 1982. He has three children in America now in their mid-30’s. He has expressed himself as being deeply contrite for the grossly offensive actions he has perpetrated. It is said of him by a psychiatrist that his psycho-sexual difficulties have a compulsive undertone which his rational facilities are unable to control but that this could be significantly diminished if he were to obtain appropriate treatment.
13. It has been indicated that if he were not given a custodial sentence he would forthwith leave the country and not return.
14. Looked at from the Accused’s point of view, he is a man in his 60’s with a disability and who has no ties in this country. It is his first offence and he has no history of paedophilia. He has admitted guilt immediately upon being confronted with the facts and has co-operated with the Gardai. I take a full account of the evidence of Dr. Frances Knott, Consultant Psychiatrist, and the treatment options which she has indicated as available.
15. Nonetheless, I cannot accede to the proposition that he should walk out of this Court and out of this country without any punishment for the gross offence which he has committed. Paedophilia in its varying forms is regarded in this country as a serious form of crime and it is only in the most absolutely exceptional circumstances that non custodial sentences follow from paedophilic acts.
16. In my view, the appropriate sentence in this case is seven years imprisonment on the counts of rape and five years imprisonment on the counts of sexual assault, all terms to run concurrently. I will grant the Accused liberty to apply to this Court not earlier than the month of January in 2000 to review his sentence.
17. I will direct that he be given appropriate sexual therapy at an early date as outlined by Dr. Frances Knott. I am giving expression in this respect to the confidence of Dr. Knott of non-repetition in granting this liberty to apply to review.
SIGNED:- ____________________
FEARGUS M. FLOOD
Dated the 29th day of July, 1997.
DPP v RC
, Court of Criminal Appeal (ex tempore), May 30, 2008
JUDGMENT of the Court (ex tempore) delivered the 30th day of May, 2008 by Kearns J.
In this case the respondent pleaded guilty in Dundalk Circuit Criminal Court on 29th January, 2008 in respect of three sexual assaults carried out on a very young boy who was at the time in a very vulnerable
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state, because first of all he trusted the respondent who had befriended his mother and the serial offending only came to light on a particular occasion when the mother had left her young son with the respondent, who I think is now aged 58 years. She came back unexpectedly with a meal for the respondent and walked into a sitting room where ostensibly both the boy and the respondent were watching golf on television but she immediately appreciated that a sexual assault was in progress involving touching and making contact with the genitals of the young boy. This was not the first time this had happened and it is clear from the reports before the Court that these episodes had a very traumatic affect on the victim, who was living with his mother and three brothers.
His father sadly had died of a heart attack two weeks before the last of these assaults and accordingly it could not have come at a worse time and has affected him very badly because we have evidence that he not only was sexualised at an earlier stage as a result of these assaults but also that he became very withdrawn and aggressive in his interactions with others in school and he was particularly unfortunate because he was the victim of some other sexual assault three years previously when a fourteen year old boy sexually abused him. This I hasten to add did not involve the respondent in any way. There was no prosecution arising out of that earlier episode.
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The victim has needed a lot of help since this series of assaults and he is fortunate that his mother was there for him and has helped him in every way possible and has given him a great deal of support, and is understandably deeply outraged by the breach of trust that this series of offences represent.
An application brought on behalf of the Director in this way to review the sentence on grounds of undue leniency can only succeed if some error of principle is established or if the sentence is a substantial departure from what is appropriate. There are two factors in this case which persuade the Court that there was a failure to take sufficiently into account two aspects of this case.
One is the violation of trust which undoubtedly took place in this case and which therefore made the particular offence all the more devastating for its victim who has had obviously great difficulty in coming to terms with it, but perhaps most significantly the Court is satisfied that the sentencing judge did not adequately take into account this particular man’s past history of sexually offending with young boys when imposing the particular sentence. He has a number of previous convictions. He has convictions for six sexual offences since 1976 during which period he received prison sentences of between five and eight years.
-4-
This Court has available to it a report from a Probation Officer who has looked into this whole matter very carefully and he has concluded on the basis of his previous offending that there remains a significant risk of further offences being committed by this man. That is a very serious matter and the learned trial judge did try to meet this particular difficulty by providing for a seven year post-release supervision order but there are obvious difficulties as to how that would work and how it would be enforced and so on.
Mr. O’Hanlon has made, as one would expect, a very able submission on behalf of the respondent pointing out that he has moved away from the area where his victim lives and is in effect at the other end of the country and is doing his best in difficult circumstances to cope with his alcohol problem. He lives or did live up to the time of the court case in a rundown bedsit in the southern part of the country and he undoubtedly is a lonely and solitary individual, whose only associates now appear to be a small number of individuals he befriended while attending an alcoholic treatment centre in the City in which he was residing up to the time of the case.
The gravity of these offences in this particular context has persuaded the Court that sentence of six years rather than four years should have been imposed in this case and the Court will substitute that
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sentence for the sentence which was imposed and will vary the seven year post-release supervision order to five years post-release supervision.
DPP v DF, Court of Criminal Appeal (ex tempore) May 30, 2008
JUDGMENT of the Court (ex tempore) delivered the 30th day of May, 2008 by Kearns J.
In this case the learned trial judge, at the end of a hotly contested trial in the Central Criminal Court, imposed an eighteen month sentence on the respondent in respect of a number of indecent assaults which took
-2-
place over a period of years and which undoubtedly were extremely traumatic for the victim who was a young girl who must have been very frightened and horrified at the nature of these assaults, which went on between 1990 and 1998.
The jury acquitted the respondent of all the most serious charges but did convict on a range of sexual or indecent assault incidents which counsel for the Director of Public Prosecutions told the court could be regarded as falling within the lower grade in terms of gravity, apart from one episode when apparently the respondent lay on top of the victim. She was fully clothed but he simulated a sexual act and the Director contended that this was a more serious offence than the other actual touchings of the victim in an indecent way.
Whether that is correct or not, the point is that the sentencing judge took this very much on board and did impose a different sentence for this particular assault, the one which was the subject matter of Count 4, and imposed a thirty month sentence of imprisonment for that offence, whereas on all the indecent assault counts, namely Counts 1 and 2, and the sexual assault counts, namely Counts.3, 6, 50, 36, 37 and 38, he imposed concurrent sentences of eighteen months.
Mr. Grehan, senior counsel for the applicant, very fairly accepts that the onus is on the Director to show that there has been a significant departure from what may be seen as the appropriate sentence or an error
-3-
of principle before the Court can intervene to vary a sentence under Section 2 and the Court takes the view that Mr. Gageby has accurately characterised the sentence in this case as a lenient one but not lenient to the degree that the Court can be satisfied that it represents an error of principle or that the sentence which was imposed was one that was not open to the sentencing judge.
Taking everything into account and the contents of the written submissions on both sides, the Court is of the view that the application for a review should be dismissed.
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 SÃochána 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.