Court of Appeal reduces excessive sentence for historical sexual offences by applying proportionality and mitigating factors.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

246/14

The People at the Suit of the Director of Public Prosecutions

Respondent

v

P.B.

Appellant

Ex tempore Judgment of the Court delivered on the 15th day of May 2015, by

Mr. Justice Sheehan

Introduction

1. On the 11th July, 2014, the appellant was convicted on 59 counts of indecent or sexual assault which occurred between the 1st

September, 1964 and the 26th June, 1985, in respect of eleven different complainants. The appellant was sentenced to eleven years

imprisonment with the final five years suspended and appealed against both conviction and sentence. The sentence comprised a

number of consecutive sentences in respect of each complainant leading to the overall sentence of eleven years imprisonment. Apart

from three counts which carried a maximum sentence of ten years imprisonment, the maximum sentence for the remaining offences

was one of two years imprisonment.

2. This Court delivered its judgment in respect of the appellant’s appeal against conviction on the 20th April 2014 and the background

to these offences is set out in that judgment.

3. Counsel of behalf of the appellant submitted that the sentence imposed was excessive in light of the fact that the trial judge failed

to give sufficient consideration to the mitigating factors. He also submitted that the sentencing judge ought to have resolved any

ambiguities that arose as a result of the failure to particularise the counts on the indictment in favour of the appellant.

4. The respondent, while agreeing that the trial judge did not adopt the approach to sentencing recommended by the Supreme Court

in The People at the Suit of the Director of Public Prosecutions v. M [1994] 3 I.R. 306 submitted nevertheless that the trial judge had

arrived at a sentence which was proportionate having regard to the seriousness of the offences.

5. While the trial judge rightly took into account the harm caused to the victims, he failed to categorise the level of offending and

failed to demonstrate by reference to any comparators how he arrived at a figure of eleven years imprisonment as being the

appropriate starting point. He also appears to have mistakenly held that the absence of an expression of remorse was an aggravating

factor. While remorse can sometimes be a mitigating factor, the obverse is not the case.

6. The Court accepts that any ambiguities in respect of the facts on foot of which the appellant is to be sentenced ought to be

resolved in his favour.

7. The Court will proceed to sentence on the basis that each of the offences occurred in the presence of other pupils in the

classroom and involved non-invasive touching. What makes the case a serious one is the extent of the offending, the fact that it

occurred over a long period of time and that the appellant was a person in a position of trust. Given these factors, adopting the

approach in The People at the Suit of the Director of Public Prosecutions v. M and bearing in mind the need to be guided by the

principle of proportionality, this Court identifies a sentence of five years imprisonment as the appropriate starting point before

mitigation.

8. The Court takes into account that the appellant has no previous convictions and has made a significant contribution to his local

community since his retirement 25 years ago. These factors as well as his age (he is now 81 years old) ill-health and undoubted loss

of reputation require to be recognised. These are not such exceptional factors as would warrant the Court in imposing a wholly

suspended sentence. They are, however, of sufficient importance to allow the Court, in the special circumstances of this case, to

suspend the final three years of each of the five year sentences.

9. The Court, therefore imposes a sentence of five years imprisonment on each of those counts where the maximum sentence of

imprisonment is ten years. The Court suspends the final three years of each of those five year sentences on the appellant entering

into a bond on the usual terms for a period of three years. The Court confirms the sentences of one year imprisonment imposed in

respect of each of the remaining offences but directs that all sentences run concurrently.