Court of Appeal partially allows appeal by suspending prison terms for sexual assault due to cognitive deficits.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

300/10

The People at the Suit of the Director of Public Prosecutions

V

J.P.

Appellant

Judgment of the Court delivered on the 9th day of March 2015, by Mr. Justice Sheehan

1. This is an appeal against the severity of sentences imposed on the appellant in the Dublin Circuit Criminal Court on the 25th

November, 2010, following a jury trial in which the appellant was convicted on fourteen counts of sexual assault on J.G.

2. The trial judge imposed a sentence of eight years imprisonment on each count and directed that all sentences be concurrent. In

addition he made a compensation order directing that the appellant pay €24,000 to J.G.

3. The appellant contends that the trial judge erred in principle in imposing these sentences and in imposing the compensation order,

hence this appeal.

4. The appellant contends that the learned sentencing judge erred in principle on four separate grounds:

1. He failed to have adequate or any regard to the numerous mitigating factors;

2. He constructed the sentence in such a way that it was impossible to discern the factors to which he had regard to in determining

the appropriate penalty;

3. He had excessive regard to the manner in which the appellant conducted his defence;

4. He imposed in part a purely financial penalty when none is provided for by the Oireachtas.

5. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background

6. In May 2006, J.G. made a complaint to the Garda Síochána that the appellant had abused him on at least fifteen occasions

between 2002 and 2004, when he was between eleven and twelve years old.

7. The appellant was a trusted family friend of J.G., whose grandparents’ family was a friend of the appellant’s mother.

8. The circumstances of the offences were that the appellant would bring J.G. to karate lessons. J.G. would change into his karate

costume in the appellant’s house, where the abuse occurred. The appellant sexually assaulted J.G. by rubbing gel into his genital area

and masturbating him. J.G. also said that the appellant looked at him changing clothes through holes in the bathroom wall.

9. Following the complaint, the gardaí called to the appellant’s house in May 2006 and he made admissions to the gardaí, showed

them where he had made holes into the bathroom wall and expressed remorse for what he had done. He was subsequently arrested,

detained and interviewed in May 2006, and admitted to what J.G. had complained about. However, when his trial commenced in

October 2010, he had resiled from his original position and contended that his confessions were not voluntary ones. He maintained the

gardaí had barged into his house with a ready made statement and that he had made admissions during the course of a video

interview in custody, because the gardaí had suggested that if he did so the case would go away. He denied the abuse at trial,

suggesting that the allegations had been made by J.G. in the context of the appellant’s money having been entrusted to J.G.’s mother

and not returned to him.

Victim Impact Report

10. JG gave an account of the suffering he had endured as a result of the assaults. This included occasional nightmares, an incident

of self harm and a period when he spent questioning his own sexuality. He became angry as a result of what happened and stated

that his own family relationships and his education had been disrupted. He did however conclude his report on a more hopeful note

saying that since he had told the gardaí and his family about what had happened he had returned to school and had also become the

father of a young daughter, to whom he was devoted.

The appellant’s personal circumstances

11. The appellant is a single man who was born on the 12th May, 1956 and was 54 years of age at the time of sentence. He is the

third eldest of eight children. When he was nine years old he was deemed to be a slow learner and placed as a boarder in St.

Augustine School for intellectually challenged children. He worked for a short period of time in a retail outlet in Dublin following his

schooling and then joined the defence forces. He served 31 years in the army and received an honourable discharge.

The sentence hearing

12. At the sentence hearing the court received a Victim Impact Report already referred to, a probation report which indicated that

the appellant did not accept the verdict and the court also heard evidence from two witnesses. The prosecuting garda confirmed the

appellant’s age, background and work in the defence forces as well as informing the court that he had no previous convictions and

was a single man.

13. The appellant’s younger brother gave more detailed evidence on the appellant’s background explaining how the appellant and two

of his older sisters had been taken into care at an early age. He told the court that there were eight children in the family and that

the appellant spent most of his army career as a medical assistant. He never served overseas. He told the court that his brother had

difficulty functioning independently and attempted to show how his brother was an intellectually challenged person. He told the court

how his brother lived in unmarried quarters until 2000, when he returned to the family home to look after his father who had cancer

and who died the following year.

The trial judge’s ruling

14. In the course of his ruling prior to sentence, the trial judge spent a significant amount of time criticising the manner in which the

appellant conducted his defence. He appeared to question the defence’s suggestion of cognitive deficit when he stated:

“I accept the evidence which was given on behalf of J.P. that he was at the slow end in the educational sphere when he

was a young boy. I accept absolutely that he was put into a special school and that he remained there from the age of

nine up to the time he left at the age of sixteen. I accept that he might not have been the best candidate for

employment, particularly employment which might have required any initiative. But I do not accept that he did not learn in

the ensuing years. I am quite satisfied that this alleged inadequacy did not continue into his adulthood. I do not accept

that one could be so disadvantaged that you could serve out 31 years in the defence forces without somebody noticing

your condition.”

15. Following his review of the victim impact report, the learned trial judge spent time engaging with counsel about the appellant’s

pension and how a compensation order could be best executed. He then went without further remarks to proceed to impose the eight

year sentences on each of the sexual assault charges and to make the compensation order.

Submissions

16. With regard to grounds of appeal numbered 1 to 3 in this judgment, the appellant submitted that the trial judge did not have

sufficient regard to the mitigating factors in the case, in particular to the absence of previous convictions and the appellant’s limited

cognitive capacity. He submitted that the trial judge did not adopt the approach suggested by Egan J. in People (Director of Public

Prosecutions) v. M. [1994] 3 I.R. 306, and as a result of this, it was not possible to discern the trial judge’s reasoning process, and in

particular not possible to discern what weight he attached to the manner in which the defendant had conducted his defence.

17. The respondent submitted that the sentences were proportionate, they reflected the gravity of the crimes that had been

committed and that there was no onus on a sentencing judge to stick to any particular formula when arriving at what he considered

to be the appropriate sentence. Accordingly there was no error of principle.

18. In support of his submission that the learned trial judge erred in principle in failing to adopt the correct process in arriving at the

length of the custodial sentence imposed, the appellant relied on the People (Director of Public Prosecutions) v. Kelly [2004] IECCA

14, where Hardiman J. cited with approval the following passage of Egan J. in People (Director of Public Prosecutions) v. M.:

“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum

sentence applicable. One should look first at the range of penalties applicable to the offence and then decide

whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an

appropriate reduction made.”

19. The appellant also relied on the judgment of the Court of Criminal Appeal in the People (Director of Public Prosecutions) v.

Fitzgibbon [2014] IECCA 12, where the need for clarity in the manner in which a sentence has been arrived at was articulated:-

“It does also need to be emphasised that a sentencing judge should set out clearly the factors which have been taken

into account in arriving at an appropriate sentence and specify the approach adopted in coming to a conclusion as to the

appropriate sentence having regard to all of those factors. The Constitution and the law provides both for sentencing by

trial judges and an appeal against sentence available to both prosecution and defence. In the case of serious offences

tried on indictment that appeal is to this Court. In order for this Court to exercise its proper constitutional role in

reviewing sentences which are challenged, this Court does need the maximum possible clarity as to how the sentencing

judge reached a conclusion as to the appropriate sentence to be imposed in all the circumstances of the case. There is

no one way in which this needs necessarily to be done. There is no requirement for a sentencing judge to stick slavishly

to any particular method or formula. It is, however, important that this Court, when asked to review a sentence, is not

left to guess or infer, to any impermissible extent, what the reasoning of the sentencing judge was.”

Conclusion

20. While the learned trial judge addressed a number of matters in his pre-sentence remarks and clearly regarded the offending as

particularly serious, this Court has some difficulty in inferring from those remarks, what weight the sentencing judge attached to

different factors in the case. In this case, the sentencing judge imposed a substantial sentence for serious offences. It was not clear

from his remarks how he arrived at the sentence he deemed appropriate, nor was it clear what weight he attached to the mitigating

factors and what weight he attached to the aggravating factors. Furthermore, it is not possible to infer with any degree of certainty

what approach in fact was taken or what weight was given to the different mitigating and aggravating factors. Accordingly, the Court

holds that there was an error of principle and will now proceed to review the sentences.

21. In view of this finding, we do not need to consider counsel’s submissions in relation to the compensation order. Save to say that,

as the sum has already been paid to J.G., it can now be regarded as an additional punishment in this case.

22. In reviewing sentence, the Court received an up to date detailed psychological report on the appellant and was also told that he

was now willing to undergo the Better Lives Programme for sex offenders which is available to prisoners who have been convicted of

sexual offences.

23. What emerges from this report is that the appellant suffers from an extremely low range of cognitive ability demonstrated by the

results of four tests he underwent in January 2015.

Verbal comprehension.

24. The verbal comprehension index is a measure of a verbal concept formation, verbal reasoning and knowledge acquired from one’s

environment. The appellant’s score on this was in the borderline range and is surpassed by 96% of his peers.

Perceptual reasoning

25. The perceptual reasoning index score refers to skills such as visual perception construction, spatial visualisation, visual problem

solving and sequencing. The appellant’s non verbal reasoning skills were in the extremely low range, being surpassed by 98% of his

peers.

Working memory

26. The working memory index measures an individual’s ability to sustain attention, concentrate and exert mental control. The

appellant’s performance on this subtest was in the borderline range and surpassed by 97% of his peers.

Processing speed

27. The processing speed index provides a measure of an individual’s ability to efficiently process routine visual information and to

complete tasks based on that information. The appellant’s performance was in the extremely low range and surpassed by 99.9% of his

peers.

28. The trial judge cannot be blamed for the degree of scepticism that he expressed when it was suggested to him that the appellant

suffered from a serious cognitive deficit and he rightly complained at the time that this was being advanced in the absence of any

psychological evidence. However, this report now suggests that the trial judge may have erred in deducing from the appellant’s

service in the defence forces that he no longer suffered from the cognitive deficits that led to his placement in St. Augustine School

in the first place.

29. In approaching the question of sentence, this Court is guided by the principle of proportionality and the need where possible to

reconcile this principle with the penal aim of rehabilitation.

30. The appellant was convicted of serious sexual assault offences, which caused serious harm to J.G. The aggravating factors in the

case included the age of J.G. at the time of the offences, repeat offending over a two year period and the breach of trust involved.

The mitigating factors were the previous good character of the appellant, his blameless 31 year career in the defence forces and his

significant cognitive deficits. A further relevant factor now before this Court is the appellant’s stated willingness to participate in a

Better Lives Programme for sex offenders. This is an important first step in his rehabilitation.

31. This appeal comes late in the day. It is over four years since the appellant was sentenced. While it is not necessary to go into

the reason for this, the fact that the appellant was sentenced over four years ago limits the Court’s approach. The original sentences

of eight years imprisonment were undoubtedly on the high side. However, in the unusual circumstances of this case, the Court will

leave in place those sentences and the compensation order, but will vary the sentences by suspending the final 21 months of each

eight year sentence on condition that the appellant keep the peace and be of good behaviour for a period of two years following his

release in his own bond of €1,000.

32. In light of the psychological report which recommends a specific type of counselling for the appellant, the Court will not make it a

condition of the suspension that the appellant undergo a Better Lives Programme for sex offenders, which the Court understands is a

group programme. However, the Court considers that this is an appropriate case for a post release supervision order which will clearly

involve the appellant undergoing counselling on his release. The Court therefore directs that the appellant be placed under post

release supervision for a period of eighteen months. Finally the Court directs that the psychological report in this case be sent to the

Director of the Probation Service to enable pre and post release programmes to be put in place.