Court of Criminal Appeal partially allowed appeal by varying sentence for child sexual abuse offences to ensure consistency and proportionality.

COURT OF CRIMINAL APPEAL

O’Donnell J.

Dunne J.

O’Keeffe J.

60/04

The People at the Suit of the

Director of Public Prosecutions

V

Michael Farrell

Applicant

Judgment of the Court delivered on the 1st day of July 2010 by O’Donnell, J.

___________________________________________________________________

This is the appeal of the above named Michael Farrell from the sentence imposed on him on the 22nd March 2004, his appeal on

conviction already having been dismissed on the 13th of July 2009, by a differently constituted court. The Appellant pleaded not

guilty and was convicted on the 18th December 2003 after a lengthy trial, on thirty-one counts of child sexual abuse involving rape

and indecent assault in respect of three victims, themselves sisters. The details of the offences were broadly similar. The Appellant

was a neighbour of the victims in a housing estate in a country town. In each case when the girl was very young the Appellant would

invite her into his house by offering her sweets, or would send her to a shop for messages and then when she returned would invite

her into the house and either there or in the garage, he would sexually abuse her. He threatened them including threatening to kill

them, so that they would not reveal details of the abuse. So successful was he in this, that for a long time, the victims were each

unaware of the fact that their sisters had also been abused by the Appellant.

In approaching this appeal it is important to focus on the particular details of each offence, and in doing so to remind ourselves that

the trial judge had the significant advantage of presiding over the trial, hearing the evidence of all participants, and observing their

demeanour over the course of a prolonged trial and sentencing process.

It is necessary to set out what occurred in respect of each victim.

The oldest sister, C., was just six years of age in 1973 when she was first abused by the Appellant then aged 15 years. In her case

the abuse continued until 1981 when she was 14 years of age and he was 23. The Appellant was convicted of nine counts of

indecent assault in respect of this victim. C. only realised that what he was doing was wrong when she herself learned the facts of

life and the abuse ended only when she became old enough to develop strategies to keep away from her abuser. She is married but

was unable to tell her husband about the abuse until 1997, the year when she reported it to the gardaí. The abuse has harmed her

life with her husband, and made her over protective of her own daughters who she has not been able to tell about her experience.

She has been left with feelings of shame and guilt that she did not do something which might have prevented the abuse of her

younger sister. In addition she found the whole experience of the court case very stressful.

The second victim, M., was also six years of age, when in 1975 she was first abused by the Appellant who was then 17 years of age.

The abuse continued until 1983 when he was 25, and she was 14. The abuse only ended because her family moved away. The

Appellant was convicted of ten counts of rape and ten counts of indecent assault covering this eight year nightmare for this victim.

She told the jury that the abuse had occurred three to four times a week. Like her older sister she feared the Appellant. He

threatened to kill her if she told anyone. She has developed mental health problems and has been an in-patient in a psychiatric

hospital on between 20 and 30 occasions, and has made a number of suicide attempts. There is little doubt that the abuse was a

significant contributor to her mental state. It is relevant that she was a vulnerable child and had learning difficulties. She found the

court case and the experience of giving of evidence stressful and gave up her job in the weeks before the court case. It is apparent

that the abuse of M. and that of C. occurred in parallel over a period of eight years between 1973 and 1981.

The third victim, E., was only four years of age in 1982 when the Appellant first abused her. He was then aged 24. He was also

abusing M. at the same time. Again the abuse ended only when the family moved. In E.’s case, the Appellant was convicted on one

count of rape and one count of indecent assault. Both she and M. gave evidence to the Court in addition to the Victim Impact

Statements which were delivered on behalf of all three victims. She has never discussed the abuse with her sisters because she is

too ashamed. She has avoided thinking or talking about the abuse, and has not attempted counselling. It is worth recording, that

while she was only four years of age the Appellant had penetrative intercourse with her. The Victim Impact Statement describes this

in a matter of fact phrase, which hints at the stark horror involved. It records that she found the experience “painful but thought at

the time it was normal”.

As may be apparent from the foregoing account, the Appellant pleaded not guilty, so full trial and the giving of evidence by each of

the victims ensued, resulting in his conviction in respect of the counts identified above, and his acquittal on a small number of other

counts, including counts in respect of another alleged victim. The Appellant however, did not accept the verdict, and has not done so

to this day. A psychiatric report was provided to the Court in respect of the Appellant. It assessed the Appellant’s risk of re-offending

as high.

What little there was that could be said for the Appellant in such circumstances was said on the sentencing hearing. He is now a man

in middle age. The sentence would probably bear more heavily on him than if it had been imposed at the time of the abuse in the

1980s. He has lost his job, and the small business he set up was, it was said, adversely affected by the impact of the case and public

knowledge of it.

The Judge, Peart, J., carefully reviewed the facts. He came to the conclusion that consecutive sentences were appropriate in this

case. He observed that to impose one sentence in respect of the offences against one victim and then impose concurrent sentences

in respect of the other offences, would inevitably suggest to the second and third victims that the offences against them were of

less importance, or indeed of no real importance, and that the convicted person would not really be serving any sentence in respect

of the offences committed against them.

The trial Judge then imposed an eight year sentence in respect of the ten counts of rape in respect of M. each to run concurrently.

He also imposed a two year sentence in respect of the ten indecent assaults on M. to run concurrently with the sentence on count 1

(being the first rape count in respect of M.). In respect of the offences against E. he imposed an eight year sentence on the rape

charge to run consecutively on the expiry of the eight year sentence imposed on count number 1 in respect of M., and again in

respect of the indecent assault charge he imposed a two year sentence to run concurrently with the sentence in respect of the rape

conviction. Finally in respect of C., which it will be recalled involved nine counts of indecent assault, he imposed a sentence of four

years itself to run consecutively on the expiry of the rape sentence in respect of the rape count in respect of E. (itself running

consecutively from the expiry of the rape sentence in respect of M.) and imposed a four year sentence on all the other indecent

assaults (eight in number) to run concurrently with that four year sentence. The total sentence was thus 20 years.

At the sentencing hearing, there was some confusion because the Criminal Law (Rape) Act 1981 had increased the maximum penalty

for indecent assault to ten years from the two years which had been applicable under the Criminal Law (Amendment) Act 1935.

Almost all of the offences of indecent assault in respect of C. predated the coming into force of the 1981 Act. Thus it was not

possible to sentence the Appellant to four years imprisonment in respect of those counts. This was pointed out to the Judge who

imposed a four year sentence on the single count, count 33 which did fall under the 1981 Act, to run consecutively from the expiry of

the sentences in respect of E., and eight one year sentences on the remaining indecent assault counts to run concurrently with the

four year sentence imposed on count 33. The total sentence imposed on the Appellant was thus 20 years imprisonment. The

Appellant appeals against the severity of this sentence.

On this appeal written submissions have been exchanged. Initially the Appellant raised the appropriateness of imposing consecutive

sentences. It was common case that such sentences should only be used sparingly. On the hearing of this Appeal however the

Appellant’s counsel, conceded, correctly in the view of the Court, that this was indeed an appropriate case for consecutive

sentences, and furthermore conceded that individually the sentences of eight year for rape and four years for indecent assault (at

least post 1981) were in themselves unobjectionable. However, he contended that the overall result was an error in principle, in that

it offended against what he described as the principle of totality, the cumulative principle, and the proportionality principle. In truth,

these are only different ways of saying that, when looked at in the overall, as it must be, a total sentence of 20 years is too much.

Consecutive Sentences

In the light of the Appellant’s concession, it is not necessary to seek to address in any detail the principles guiding a sentencing court

in imposing consecutive sentences. It is accepted, that such sentences should be used sparingly. However sparingly, does not equate

to a prohibition of the sentences, or even mean that such sentences should be exceptional. On the contrary, the very statement that

such sentences should be used but sparingly suggests that there are occasions when a consecutive sentence will be appropriate.

Consecutive sentences are not imposed as a matter of course in cases of multiple offences. Classically where the offending involves a

single transaction or a series of repeated offences in relation to the same complainant, consecutive sentences would impose a

sentence which was too severe in light of the accused person’s culpability, and indeed would ignore the reality of the offence. On the

other hand, as the trial Judge observed, to ignore what in truth are distinct offences against distinct individuals would itself miss the

truth of the crimes involved, and furthermore add insult to the injury already experienced by victims who might understandably feel

that their experience has been ignored, or devalued. It is not necessary here to attempt to identify with precision all the factors

which may in any particular case lead to the imposition of a consecutive sentence. Indeed, there is some difference of emphasis

between the decided cases, and within the decided cases themselves. However, this case involving as it does very serious sexual

misconduct with different persons over an extended period of time, is one of the circumstances which fits closely with the

circumstances identified in the argument of counsel in DPP v Z (unreported CCA, 29th July 1997) and cited with approval in DPP v

McKenna (2) [2002] 2 IR 345, 349 where it would be appropriate to impose consecutive sentences.

The imposition of a consecutive sentence carries with it a particular obligation to ensure that what is described somewhat

cumbersomely as the “totality principle” is observed. It is a commonplace of many types of assessments that the consideration of the

component parts risks sometimes missing or exaggerating the value of the whole. This observation applies in the context of

sentencing because the construction of the sentence involves not just the identification of the harm to victims, but also an

assessment of the culpability of the accused.

In the field of sentencing, it is certainly the case that there is a principle of totality, which requires that when consecutive sentences

are employed, a court must be careful to take account of the overall impact of the sentence, the moral blameworthiness of the

accused and the prospect of rehabilitation, and therefore recognises that the total sentence in some cases should be less than the

sum of the component parts.

This much is perhaps unremarkable. The Appellant here contends that this sentence fell foul of the totality principle. We have

therefore considered the sentence imposed in this case in the light of the submissions made. It seems clear to us that the trial Judge

did take account of this principle, just as carefully as he took account of the other matters drawn to his attention. Indeed, in his

adjustment of the sentences to make sure that the total figure was 20 years, he appears to have been applying a totality principle,

i.e., an overall view that 20 years was the appropriate sentence however that was distributed between offences.

It remains to consider whether the sentence is in the overall excessive. We were not invited to consider any other case or cases or

any statement of general principle as to the length of sentence or sentences for offences such as this. There is no doubt that the

sentence in this case is a heavy one. However having considered it, it is the clear view of this Court, that 20 years is not an

excessive sentence for the horrors that have been inflicted upon the victims in this case, and the depths of depravity which this case

reveals in the Appellant, for whom virtually nothing of substance could be said in mitigation. The flaw in counsel’s argument, in this

Court’s view, is that the argument is entirely relative: its essential premise is that the period of eight years for the rape offences in

this case, is the appropriate sentence for these offences standing alone. However, in our view, given the details of this case, eight

years could be said to be a lenient sentence particularly in respect of the offences against M. The component parts of the sentence

in this case can in fact, only be understood as reflecting in part an overall application of the so-called totality principle. Certainly, if

three different accused had been convicted and sentenced separately in respect of the offences against each individual complainant,

we think it entirely likely that the sum of the sentences imposed would be in excess of 20 years. In those circumstances we cannot

conclude that the trial judge erred in principle in imposing the sentence which he did, substantial though it was and is.

While this conclusion deals with the essence of the Appellant’s case it nevertheless remains to deal with the sentence as actually

imposed. While there is an unavoidable element of artificiality in dividing up a sentence between offences in respect of different

complainants and different offences when it is the overall figure which is perhaps the most important, nevertheless we think that it is

preferable to restructure the sentence somewhat. The sentence of four years in respect of the one indecent assault committed in

respect of C. which post-dated the coming into force of the 1981 Act, while in itself unobjectionable appears somewhat out of kilter

with the other convictions for indecent assault including some which post-dated the coming into force of that Act. On the other

hand, while there is no doubt that the offence, particularly the rape offence in respect of E. is horrifying on its own terms, it does

appear that the ordeal suffered by M., was even more severe both in its extent, and its impact. It thus appears appropriate to make

some distinction between the two, even within the context of an overall sentence which is itself appropriate.

In those circumstances, we propose varying the sentence to impose a ten year sentence in respect of the rape counts concerning M.

being counts 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 to run concurrently from the 18th December 2003; we would affirm the sentence of

two years imprisonment to run concurrently in respect of the indecent assault counts in respect of M. (2, 4, 6, 8, 10, 12, 14, 16, 18

and 20) again to run from the 18th December 2003. Again we would affirm the sentence in respect of count 23 (the rape in respect of

E.) which was eight years imprisonment to run consecutively from the expiry of the sentence on count number 1 (the first rape

counts in respect of M.), and again affirm the sentence of two years imprisonment to run concurrently with the sentence on count

23. Finally in respect of the offences in respect of C., we propose varying the sentences by reducing the sentence for indecent

assault on count 33 to two years imprisonment to run consecutively on the expiry of the sentence on count 23 (being the rape

sentence in respect of E.), and increasing the sentence imposed in respect of counts 25-32, to two years imprisonment to run

concurrently with the sentence on count 33. In doing so, we do not intend in any way to devalue the significance of the events in

respect of C., or indeed to suggest that this sentence would be appropriate if the offences were standing alone. This adjustment is

intended merely to maintain some consistency with the sentences on the other indecent assault counts, and, since all but one of

them were offences were carried out prior to the coming into force of the 1981 Act, we think it appropriate to impose the maximum

sentence available under the 1935 Act, as part of a cumulative total of 20 years imprisonment.