Court of Criminal Appeal allows appeal against life sentence, replacing it with 15 years plus supervision.

COURT OF CRIMINAL APPEAL

CCA No. 19 of 2008

Finnegan J.

Budd J.

Irvine J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

P. S.

APPLICANT

Judgment of the Court delivered on the 28th day of January 2009 by Finnegan J.

On the 5th November 2007 at the Central Criminal Court the applicant was charged with thirty one counts and pleaded guilty to a total of eleven sample

counts and in particular to two counts of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 contrary to common law against J.S., one

count of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 contrary to common law against B.S., one count of attempted rape under

section 4 of the Criminal Law (Rape) (Amendment) Act 1990 contrary to common law against B.S., four counts of sexual assault contrary to section 2 of

the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001 against J.S. and three counts of sexual assault

contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001 against B.S. On each

count charging rape or attempted rape he was sentenced to life imprisonment and on each count alleging sexual assault he was sentenced to five years

imprisonment, the terms to be concurrent. The applicant seeks leave to appeal sentence.

The offences

The offences occurred between the 1st January 2004 and the 31st August 2006. J.S. was born on the 11th January 1995 and the offences were committed

when he was between the ages of nine and eleven years. B.S. was born on the 22nd June 1993 and the offences were committed when he was between

the ages of eleven and thirteen years. Both victims had spent time in foster care. J.S. was in care virtually from birth until the age of nine but thereafter

resided with his father who was separated from his mother. B.S. went into foster care at the age of three and remained in care. The applicant was a friend of

the victim’s father and older brother. Immediately on the offences coming to light the applicant wrote a letter of apology to the victim’s parents. The offences

were committed at an apartment block where the applicant was caretaker, at his flat and in the home of the victims’ father. All the offences are at the most

serious end of the scale of the offences in question. On one occasion the abuse involved both boys when the applicant required them to perform acts on

each other and to watch while he performed acts on them individually. The offences were attended by significant violence. At the sentencing hearing the

applicant was described by a sibling of the victims as being like an uncle to the children of the family.

The applicant was arrested on the 29th July 2006 and was interviewed on four occasions. He made full admissions. He expressed remorse.

The applicant

The applicant was born on the 23rd January 1963 and is now forty five years of age. Growing up he was himself abused from the age of nine until his

teenage years and he considered that sexual relationship to be a normal part of growing up. He had very little education.

A therapeutic report was submitted from a psychotherapist which concluded as follows:-

“On listening to Mr S’s background and history, and engaging therapeutically with him over the past year and a half, it appears that due to Mr S’s lack of

proper health, emotional stability and nurturing during his pubescent years, and the violation of sexual abuse against him by his cousin, it created in him a

distorted perception and confusion around his own sexuality and an inability to identify the difference between appropriate and inappropriate sexual

behaviour towards others, particularly children.

Mr S’s low self-esteem and lack of confidence led him to form dysfunctional unhealthy relationships throughout his life, always searching for

love and acceptance with others in whatever way he could. This caused him to make very inappropriate and unacceptable choices, which

consequently and very unfortunately led him to sexually offend.”

The applicant has a number of previous convictions as follows:-

1. 21st November 2005 four charges of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990. The victim was an eight

year old boy. He was sentenced to four years imprisonment on each count concurrent.

2. 6th October 1997 he was convicted of offences under section 2 and section 4(1)(a) of the Criminal Law (Rape) (Amendment0 Act 1990 . The victim was a

sixteen year old boy. He was sentenced to five years imprisonment.

3. 12th December 1991 he was convicted of common assault. He was fined €38.09.

4. 13th October 1983 he was convicted of larceny. He was fined €38.09.

Effect on Victims

Before the court at sentence were psychologists’ reports on each of the victims. J.S. was successfully resolving the psychological and emotional impact of

the abuse. The immediate impact of the abuse on him was to make him a confused, frightened and angry boy. Counselling has helped to resolve this. The

opinion of Mr Paul Gilligan consultant psychologist is that in the future J.S. will have difficulties trusting males over the coming years having trusted the

applicant as a family friend sufficiently to stay in his flat overnight and accompany him on trips.

B.S. was also successfully resolving the psychological and emotional impact of the abuse. The immediate impact of the abuse on him was to make him a

confused, distracted and aggressive boy who experienced feelings of guilt and shame. He still experiences episodes of sadness and anger as a result of

the abuse. There are concerns that the emotional impact of the abuse may re-emerge at a later stage in his life.

The Sentencing Hearing

The learned trial judge identified the following aggravating circumstances:-

1. The special position of trust enjoyed by the applicant in relation to the victims.

2. The age of the victims and the fact that there were two victims not just one.

3. The length of time over which the outrages were perpetrated, a period of two and a half years.

4. The involvement of the victims in the offences in the presence of each other.

5. The nature of the degradation which J.S. was subjected to in the course of the three rapes and B.S. was subjected to in the course of the attempted

rape.

Having regard to those aggravating circumstances on the one hand and the early plea of guilty and the evidence of early and genuine remorse as mitigating

factors on the other hand, the learned trial judge indicated that the offences merited a sentence of twelve years imprisonment but that this should be

discounted to ten years by reason of the mitigating factors. The learned trial judge proceeded to consider the applicant’s history of offending and had regard

to the decision in The People (Director of Public Prosecutions) v Drought, unreported, Central Criminal Court, 4th May 2007, where Charlton J. reviewed

the cases therein referred to in which a life sentence had been imposed. The learned trial judge concluded:-

“Having regard to the totality of this case and, in particular, the accused’s total failure to respond to significant sentences for serious sexual

offences, I consider that the case falls into the small category of cases which merit a non-mandatory life sentence:”

The Grounds of Appeal

The following are the grounds of appeal:-

1. The sentencing judge erred in principle in imposing the maximum sentence prescribed by law in the circumstances of the case and where the applicant

had entered an early guilty plea.

2. The sentencing judge erred in principle in imposing life sentences on the applicant by reason of his previous convictions.

3. The sentencing judge erred in principle in attaching a disproportionate weight to the factor of the applicant’s previous convictions and in failing to give

adequate weight to the mitigating factors of early admissions of guilt, early pleas of guilty and remorse.

4. The sentencing judge erred in principle in failing to consider

post-release supervision following a determinate sentence as an alternative to the maximum sentence in the circumstances of

the case.

5. The sentences imposed were in all the circumstances excessive and disproportionate.

The Law

In the People (Director of Public Prosecutions) v R.McC. and C.D. unreported, the Supreme Court, 25th October 2007. The Supreme Court considered

the following certified question of law:-

“Whether in the light of the enactment of section 29 of the Criminal Justice Act 1999 it remains an error of principle for a judge, when imposing sentence,

to fail to make allowance for mitigating factors such as early guilty plea, absence of previous convictions, remorse and sustained efforts at rehabilitation,

without prejudice to whether there was such a failure in the present case.”

Section 29 of the Criminal Justice Act 1999 provides as follows:-

“29(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence

is fixed by law, a court, if it considers appropriate to do so, shall take into account –

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty and

(b) the circumstances in which this indication was given.

(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law

for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence

which warrant the maximum sentence.”

In his judgment Kearns J. recognised that a plea of guilty is a mitigating circumstance which normally attracts a reduction of sentence. An early plea is of

considerable benefit to the victim of sexual assaults and rapes. However the effect of section 29 is that notwithstanding an early plea having considered all

mitigating factors and giving to them due weight exceptional circumstances may justify the imposition of the maximum sentence. Those exceptional

circumstances should, however, be identified in such a way as to make it absolutely clear why the maximum sentence is warranted. Such instances will of

necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.

Decision

The learned trial judge correctly identified those matters aggravating the offence and the mitigating factors. Having identified the relevant factors but

excluding from his consideration the applicant’s record of previous offending he fixed as an appropriate sentence on the rape charges a term of

imprisonment of twelve years reduced to ten years taking into account the mitigating factors which he identified.

He then identified the previous record of offending as constituting special circumstances within the meaning of section 29 and imposed life sentences.

This court is satisfied that on the evidence before him the learned trial judge was entitled to regard the applicant as representing a continuing danger to the

public. See People (Director of Public Prosecutions) v King, unreported, Central Criminal Court, 5th May 2004. The applicant in this case had been

sentenced in respect of four counts of sexual assault to terms of four years imprisonment concurrent on the 21st November 2005. On the 6th October 1997

he was sentenced to five years imprisonment on charges of sexual assault and rape. The victims in each case were a young boy and a sixteen year old

youth respectively. Accepting that in relation to the previous offences the applicant has already been punished and should not on the occasion of

sentencing for the present offences be punished again for those former offences and that previous offending will normally be regarded as an absence of a

mitigating factor, nevertheless the nature of the previous offending indicates that the offender represents a continuing danger to the public. That is the

situation here. The applicant represents a danger to the public for the foreseeable future. This is a relevant factor in sentencing.

This court regards the nature of the offences committed and in particular the exceptional depravity involved, the number of offences and the frequency with

which they occurred over a relatively short period, the element of significant force and the breach of trust on the part of the applicant as aggravating factors

which place the offences in the more serious category of offences of this nature. The applicant is, however, entitled to credit for an early plea of guilty, co-

operation with the Gardai and the early and apparently genuine expression of remorse. These factors sound in mitigation and justify a lesser sentence than

that of life imprisonment. However account must be taken of the applicant’s record of previous offending which indicates that he will represent a continuing

danger to the public.

The learned trial judge in postulating ten years as an appropriate sentence absent the applicant’s previous offending was not in error. However taking all the

aggravating and mitigating factors into account the case is one which in this court’s opinion can appropriately be dealt with by a determinate sentence with

a significant period of post-release supervision which will be carefully devised and vigilantly monitored. Accordingly the learned trial judge was in error in

principle in imposing a life sentence. Where an appropriate determinate sentence can be devised that is preferable to an indeterminate sentence. That is

not to say that a life sentence may not be appropriate given the exceptional circumstances of a case and this court has upheld such sentences. The court

will grant the applicant leave to appeal and allow the appeal. In place of the sentence imposed it will impose a sentence of fifteen years the last two and a

half years of that sentence to be suspended on condition that the appellant attend psychological counselling and comply with the directions of the

Probation Service during the period of post-release supervision hereinafter directed. Should he fail to do so he will be required to serve the suspended

portion of the sentence. There must be an extended period of post-release supervision under section 29 of the Sex Offenders Act 2001. For the period of ten

years following his release he shall:-

(i) Receive psychological counselling as directed by the Probation Service.

(ii) Comply with all directions as may be given by the Probation Service.