Court of Appeal allows DPP appeal against undue leniency, imposing three years imprisonment for sexual offences.

THE COURT OF APPEAL

[CJA 154/13]

The President

Birmingham J.

Edwards J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

NIALL COUNIHAN

APPELLANT

JUDGMENT of the COURT delivered by The President on the 24th day of March 2015

1. It sometimes appears as if there are as many principles as there are decisions of the Court of Criminal Appeal and it is difficult for

sentencing judges to know what is the proper approach to take in any particular case. Such is the number and variety of decisions

and many different considerations that must be taken into account, that it is an extremely difficult task for a trial judge to comply

with them all. This Court will endeavour over time to establish some consistent rules for the guidance of trial and sentencing judges.

There is no question of this Court trying to lay down rigid propositions that sentencing courts must follow, but guidance is necessary

and appropriate to let judges know how this Court approaches the issues of sentences in different classes of cases. It is in

everybody’s interest who is involved in the justice system or observing it to know how this Court approaches its task. This is

important, not only for judges who are passing sentence, but also for lawyers and victims and persons convicted or pleading guilty

and the public generally.

2. The Supreme Court set its face against prescribing programmes of sentences that would be appropriate in particular cases, first,

because there was inadequate statistical information available as to sentencing practice in this country, and secondly, because it

was reluctant to interfere with the independent judicial function in so important an area as criminal sentencing. It is, nevertheless,

desirable that the courts should aim for consistency of approach in this important task. It is not satisfactory to have a wide range of

sentencing practice depending on the inclination of the individual judge. Having said that, there will, of course, be variations in

sentences, even in fairly similar cases because judges will inevitably differ to some degree in their assessment of the different

elements that go into the sentencing process.

3. It used to be the case that the only sentence appeals that came before the Court of Criminal Appeal were brought by convicted

persons on the ground of severity. That has changed since 1993, when the Oireachtas gave the Director of Public Prosecutions the

statutory right to appeal on the ground of undue leniency. A person who pleads guilty or is convicted now faces the prospect, if he is

treated very leniently by the sentencing judge, of an application to this Court for the review of his sentence. In the case of a

suspended sentence, the person has an anxious wait to see whether the sentence will be altered. Prior to the establishment of the

Court of Appeal, it could happen that there was a substantial delay in the hearing of the appeal which made for difficulty and anxiety

all round. It also meant that it was more difficult for the appellate Court to impose a custodial sentence, even where it considered

that the trial judge had been wrong in principle. This Court has made strenuous efforts to ensure that appeals on the ground of undue

leniency are brought on for hearing expeditiously, which is the approach the Court also takes in respect of all other cases.

4. The point needs to be made that because of the jurisdiction to review cases for undue leniency, a Court may be doing no favour to

an accused person by allowing itself to be excessively influenced by mitigating features of a case to the exclusion of the proper

assessment of the gravity of the crime. It is well-established that a sentencing Court must direct its attention to the crime that was

committed and the person who committed it. It is not the crime committed as a general concept or as being of a particular class, but

the actual offence that the person before the Court committed. This is the primary determinant of sentence. What is the gravity of

the crime that the guilty person committed? Relevant to this first question is what kind of crime was committed, what the particular

circumstances were, how badly were other people affected, was lasting harm done, was there an antisocial element and any other

matters that define severity of this class of offending. There may be features of the crime that make it more serious or less within

this category of crime. For example, a sexual abuse crime committed by a person in a position of authority or trust is more heinous for

that reason. That does not mean that if the crime was committed by a person who was not exploiting the advantage of his position,

there will be mitigation to that extent. The crime is still serious and is not mitigated by the absence of aggravation. Another

aggravating feature is the extent of the impact on the victim. Impact reports from victims are intended to remind the Court of the

consequences of the crime and in many cases they may be long-lasting and profound, such as often is reported in cases of sexual

abuse. Indeed, it may be that the damage to the victim far outlasts any sentence imposed on the perpetrator.

5. Mitigation is principally a feature that is found in the circumstances of the guilty party. The offender may have no previous

convictions or be very young or from a very deprived background who had little chance in life. He may have pleaded guilty and spared

the victim the ordeal of a trial. He may have expressed remorse by apologising or demonstrating it in some other fashion. He may have

engaged in rehabilitation or improved himself so as to demonstrate to the Court that he has seen the error of his ways and is

determined to put the crime behind him and to pursue a life of lawful activity. These and many more may legitimately be taken into

account by a judge when sentencing a person who has been convicted.

6. The general process of sentencing can be easily described but it is difficult to achieve justice by giving due but not excessive

weight to the various elements that must be weighed carefully in the balance. Excessive concentration on one feature of the case

upsets the delicate balance that must be observed in putting the crime in its context so as to assess the gravity of the offence in all

the circumstances and then to apply the mitigating elements that operate to reduce the punishment. There is no question of

vengeance being visited upon the guilty party; the object is just punishment, taking account of the severity of the crime and the

relevant features of the culprit’s biography. In this process, it can happen sometimes that the first part of the equation is permitted

to recede in importance by comparison with the features that attract sympathy for the guilty person. In the result, the sentencing

Court may not be able to achieve a balance that is just. A similarly deficient outcome happens when there is too much emphasis on

the gravity of the crime to the exclusion of the perpetrator’s circumstances.

7. The case under consideration in this appeal involves serious sexual abuse. The respondent was convicted of two rapes and two

instances of sexual assault. He appealed to this Court against his conviction but that was dismissed in an ex tempore judgment given

on 3rd March last. When the conviction appeal was disposed of, the Director’s application for review of the sentence on the ground of

undue leniency was heard. The Court declared that the sentence was unduly lenient and the Director’s application succeeded. In

accordance with established practice and jurisprudence, the Court afforded the parties the opportunity of putting relevant material

forward in relation particularly to events or circumstances that had occurred between the date of sentence and the date when the

appeal was heard. The Court has carefully considered the booklet of materials containing up to date information about the

respondent’s family circumstances, and specifically the needs of his three little boys.

8. Before addressing the information now supplied to the Court, some general observations are appropriate:

(i) Rape is a very serious crime that calls for a substantial custodial sentence but there is not an absolute rule. The

sentencing judge has discretion which must be exercised with respect for the general principle.

(ii) This crime and other offences of sexual abuse cause suffering that is profound and long-lasting and is not confined to

the victims themselves but extends outwards like ripples on a lake to partners and children of victims. That arises in this

case.

(iii) As with other crimes, the perpetrator’s family and relations may also suffer because of the consequences of the abuse

in terms of deprivation and shame and hardship resulting from the incarceration of the abuser. That arises in this case.

(iv) If often takes years for victims of abuse to report the crime and the investigation and trial are very traumatic

experiences. Giving evidence and being cross-examined are extremely painful and distressing. That arises in this case.

(v) A plea of guilty and an expression of remorse are important mitigating features that the courts recognise as having

real value. The fact that the perpetrator pleads not guilty but is convicted nevertheless is not considered as an

aggravating feature, although in some circumstances the conduct of the trial may be regarded as unnecessarily adding to

the pain of the victim. These questions do not arise in this case.

(vi) There are features of this case that aggravate the heinousness of the crimes. The respondent was in a position of

responsibility in respect of the victim: he was a married man with young children who raped and sexually assaulted his

wife’s sister, aged 13 and 14 years, when she was babysitting. The abuse has had a very severe impact on the victim

who continues to suffer.

(vii) There is also mitigation present. The respondent was in his 20s when the abuse happened; he had no previous

convictions and none subsequently over a period of nearly three decades; he has a very good work record; he is in a

settled relationship with a committed partner; they have three young boys who suffer from autism and who need a high

level of care; the respondent actively participates in the care of the care of the children; he is considered to be at low

risk of re-offending. His partner is pregnant. She and the children will undoubtedly suffer if he is committed to

imprisonment.

(viii) The trial judge held that the respondent held that the respondent had, by his good conduct over nearly thirty years

since these crimes were committed, effected a kind of self-rehabilitation which made a significant impression on the judge

who emphasised the feature of rehabilitation and its important place in penology. Taking this feature into account, in

addition to the respondent’s family obligations, the learned just felt able to impose a wholly suspended sentence,

notwithstanding the gravity of the crimes. The judge held that a sentence of seven years imprisonment was appropriate

for the offences, but in view of the mitigating circumstances, he suspended the sentence for a period of five years on

conditions.

9. The booklet of new reports now furnished to the Court by the respondent’s advisers reinforces the strong case that is made in

mitigation because of the family obligations and the needs of the children. It brings the information up to date. Whereas previously,

the trial Court was aware that two young boys, aged eight and seven, were autistic, needing a lot of care and attention at home

which they got from the respondent and his partner, it is now apparent that the youngest boy, now aged four years, has the same

condition as his brothers. Caring for this family is no easy task and the burden is bound to increase greatly if the respondent is

incarcerated.

10. The respondent is not, however, the only carer of the children. Saying this is not to diminish the importance of his position in the

family in supplying the care needs of the children to a substantial extent. It does have relevance, however, to the question whether

imprisoning him would interfere with the rights of the children under the Constitution or the European Convention of Human Rights. If

the result of measures taken by the Court would jeopardise the children’s rights, it would not be permissible to apply or enforce them.

Although there would be obvious difficulties in this case, it is not suggested that the Court would be acting contrary to those

principles by imposing a sentence of imprisonment. It is also apparent from the reports that the family has the assistance of support

services from a wide variety of agencies, including Tusla, the Childhood Family Agency, the HSE’s Early Intervention Service, the

schools which provide resource teaching and special assistants, and there is a considerable level of engagement by those parties in

supervising, assisting and supporting the family. This is another relevant consideration.

11. The principal reason for the Court’s disagreement with the learned trial judge is not because of his assessment of the needs of the

children and the importance of the respondent in providing them. The sentencing judge was indeed entitled to give great prominence

to that feature. However, the judge was mistaken in considering that the respondent had engaged in rehabilitation. That process

requires acknowledgement of guilt and acceptance of responsibility for past wrongful conduct, features which are very clearly absent

from this case. The reports now furnished confirm that the respondent still maintains his innocence of the charges of which he has

been convicted. As stated above, this Court has rejected his appeal against conviction.

12. The respondent committed his crimes a long time ago but the victim suffered them a long time ago and continues to experience

the consequences. She has not had the benefit of any apology or expression of remorse from the respondent. In believing that he had

rehabilitated himself, the sentencing judge fell into error. The judge was undoubtedly entitled to take account of the disruption and

inconvenience and distress that imposing the proper sentence on the respondent would entail, but those features alone were

insufficient to justify the quite exceptional course of a non-custodial sentence. The fact is that the judge did not think they were the

only features and also relied on the concept of rehabilitation.

13. This Court is also of the view that the trial judge was in error in deciding that the index sentence for the offences, as committed

by the accused, was seven years imprisonment, locating the crimes, as he did, at the higher end of the mid-range. The appropriate

sentence before mitigating factors are taken into account cannot be less than ten years imprisonment.

14. The Court holds that the suspended sentence cannot be justified in this case by reason only of the impact that imprisonment

would have on the respondent’s family, although the Court does not in any way wish to underestimate those effects. The fact is,

however difficult it may be to cope without the respondent, many other families of imprisoned people have to face major disruption

and problems in coping with children and dependent adults. There is, in addition, a network of support, as mentioned above, available

to the family who have been actively engaged in monitoring how the children’s needs are being provided for.

15. In the circumstances, the Court accordingly proceeds to impose the appropriate sentence, balancing all these elements as best it

can. The starting point is imprisonment for ten years, as stated above. The elements of mitigation, which are very extensive, enable

the Court to reduce that sentence by an amount of five years in the first instance, and further mitigation, in the view of the Court, is

represented by the additional material and the changes that have taken place and the additional facts that have now been put before

the Court on the hearing of this application by the respondent’s Counsel, reflecting the altered situation in the intensification of the

care needs of the family and so on.

16. In those circumstances, the Court will reduce the period of imprisonment by a further two years so as to leave what, in the

Court’s view, is a quite exceptionally lenient sentence.

17. In the particular and extreme circumstances of this case, the Court will impose a sentence of three years imprisonment.