Court of Criminal Appeal allows DPP review application, upholding suspended sentence for aggravated sexual assault.

Kearns J.

Budd J.

MacMenamin J.

THE COURT OF CRIMINAL APPEAL

[213CJA/04]

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JOHN MCCABE

(N0. 2)

RESPONDENT

JUDGMENT of the court delivered by Kearns J. on the 13th day of July, 2005

This is an application brought by the applicant for a review of the sentence imposed on the respondent in the Central

Criminal Court (Carney J.) on the 11th October, 2004, the respondent having pleaded guilty on the 10th June, 2004, to

aggravated sexual assault on a female foreign national in Dundalk on the 13th September, 2002, the said assault being

contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. At the conclusion of the sentencing hearing, and in

circumstances where the respondent had offered compensation to the victim in the sum of €15,000, which said sum the

victim had accepted, the learned trial judge imposed a term of 4 years imprisonment, but suspended same on condition that

the respondent enter into a bond to keep the peace and be of good behaviour for a period of 3 years. He also ordered that

the respondent’s name be entered in the Sex Offender’s Register.

The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act,

1993, which provides:-

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a

person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the

sentence.”

The facts of the case were as follows. The victim was employed as a shop assistant in a 24 hour shop in Dundalk. At

approximately 5 a.m. on the morning of the 13th September, 2002, the respondent entered the shop enquiring how he could

get a taxi. The victim directed him to a nearby rank, but some minutes later the respondent re-entered the shop and bought a

mineral. Having left, he returned on a third occasion and closed the door of the shop behind him. He then grabbed and

pushed his victim, telling her he wanted sex with her. She tried to get away, but he pushed her into a store area towards the

rear of the shop premises. He knocked her to the floor and she hit her head on the floor. He told her that he had a knife. He

then removed her shoes, trousers and underwear and a portion of his own clothing. She made a number of efforts to get up

but was pushed back down. Due to the fact he had consumed an enormous amount of alcohol, it appears he was unable to

achieve an erection and a very frightening episode was brought to an end when some other person entered the shop

premises.

Shortly afterwards, within 30 minutes of this attack, the respondent was arrested by Dundalk Gardaí and immediately

admitted to having done something “awful stupid - my life is over”.

He was brought following his arrest to Dundalk Garda Station where he made a full statement after caution. In the statement

he recorded how he had been drinking and gambling throughout the previous day in Cootehill. Towards the end of the

evening, he heard talk about a lap-dancing club in Dundalk and decided to go there. He arrived some time after midnight and

remained in the lap-dancing club until about 4a.m.. He was then unable to get a taxi. In his statement he blamed the fact that

he had drunk so much and the effects of witnessing lap-dancing for what had happened. The respondent is a farmer and

married man who had a 2 year old child at the time and no previous convictions.

Two victim impact reports were tendered to the sentencing judge, dated 17th August, 2003, and 30th July, 2004,

respectively.

From these reports it is clear that the victim was badly traumatized by the sexual assault which had lasted between 20-25

minutes. The victim had great difficulty in sleeping thereafter and felt contaminated as a result of being touched by the

respondent. She would take showers and wash herself up to 5 or 6 times a day and wanted to scratch her skin off as her

assailant had touched it. She attended the Rape Crisis Centre for about 5 months but didn’t find it helpful. She was

diagnosed as suffering from post-traumatic stress disorder to a severe degree. She was particularly worried that people might

think that she was responsible for the assault. She was prescribed medication by a psychiatrist and the later report of

Michael Dempsey, senior clinical psychologist, strongly recommends that the victim engage in further counselling in relation

to the assault.

In the course of the sentencing hearing on the 11th October, 2004, Michael O’Higgins, senior counsel for the respondent,

advised the court that the respondent had had a problem with alcohol abuse, particularly when, as in this case, he engaged in

binge-drinking, but he had remained alcohol-free since the incident. He had no previous convictions and had not since come

to the attention of the gardaí in any manner whatsoever. He called his client to the witness box to apologise to the victim and

to express his remorse for the hurt which he had caused to his victim. Counsel further intimated to the sentencing judge that

the respondent had in court a bank draft in the sum of €15,000 payable to the victim, and advised the sentencing judge that

the victim was willing to accept it.

When the plea in mitigation was concluded, the learned trial judge addressed counsel for the Director of Public Prosecutions

as follows:-

“Mr. Justice Carney: Mr. Segrave, I don’t care how this money is dressed up or what it is called,

has the injured party addressed the issues that arise if I allow it to be accepted?

Mr. Segrave: I don’t know if she has my lord.

Mr. Justice Carney: It is not my practice to combine payment of monies with imprisonment. Do you

wish to consult with her?

Mr. Segrave: Yes, if your lordship would give me five minutes”

There then followed a short adjournment, following which the sentencing judge was advised by counsel for the Director that

the victim was prepared to accept the sum offered “knowing” what the consequences of the acceptance might be.

Thereafter in imposing sentence the learned trial judge declared the accused to be a sex offender pursuant to the Sex

Offenders Act, 2001, and directed the issue of a certificate in accordance with the provisions of the Sex Offenders Act,

2001. He noted that the accused did not have a knife, but nonetheless had told his victim that he had a knife in conjunction

with his demand for sex. He then continued:-

“Had I been proceeding to sentence, I had determined that the sentence I was going to impose was either one

of 4 years or 5 years, I had not quite decided before the intervention of the €15,000 came into the case, and I

would have given him the usual consideration that any person is given who brings in his plea at an early

stage, thus enabling the court to devote his slot to dealing with some other violent individual…In this case, a

sum of €15,000 has been put together by way of compensation. Now Mr. O’Higgins endeavored to use another

term, but it is only playing games to call compensation something else. I have indicated that it is not my

practice to combine the payment of money with imprisonment and the victim has had the opportunity to make

a free choice in this matter. She has decided to accept the €15,000. Now that being so, I impose a sentence of

4 years imprisonment, suspended on the accused entering a bond in his own sum of €1,000 to keep the peace

for the next 3 years.”

In the course of the appeal before this court, counsel on behalf of the Director of Public Prosecutions submitted that it was

an error in principle that the victim of a criminal offence should by any decision of hers be drawn into the process of

sentencing and that any such practice, if such it could be called, was inherently objectionable and contrary to public policy.

In support of this submission, counsel relied upon a decision of this court delivered in D.P.P. v. Carey (unreported, 10th

April, 2005) where this court (Hardiman J.) found that the judge dealing with a review, who had not been the original trial

judge, should not have sought the views of the husband of a deceased traffic victim as to whether, in the course of a review

of a 10 year sentence, he should suspend the balance of the sentence at the review stage. The court had emphasized that the

selection of penalties was part of the judicial function reserved to the court and that any such question was unfair.

Counsel also submitted that any practice whereby the payment of compensation would preclude the imposition of a

custodial sentence would lead to a variety of highly unsatisfactory outcomes. For example, certain victims might be

impecunious and as a result feel constrained to accept compensation which, if they were in different financial circumstances,

they might well refuse. There might also be close relatives who would exert pressure on the victim to make a decision in

favour of accepting compensation contrary to the wishes of the victim. It was further submitted that any form of “cheque-

book” defence culminating in an agreed payment was also highly objectionable in that it was capable of discriminating

between rich and poor offenders in a totally arbitrary manner. Further, it was submitted, the terms of s.6 of the Criminal

Justice Act, 1993, were quite explicit in stating that the court had a discretion with regard to compensation, to order payment

of same either “instead of or in addition to dealing with [the accused] in any other way”. The learned trial judge,

however, had proceeded as though he lacked such discretion or that there was a substantial body of jurisprudence or settled

practice which strongly suggested that he approach the question of sentence in the manner which he had done. This was

plainly incorrect and no citation of any Irish authority had appeared to suggest that this was the law in Ireland.

In reply, counsel on behalf of the respondent argued that the Director of Public Prosecutions representative should have

objected at the time of sentence if objection was being taken to the practice adopted by the learned trial judge. He submitted

it was unfair now to attempt to review the sentence by way of appeal when no objection to the manner in which the trial

judge had intimated he would deal with the matter had been made at the time.

Mr. O’Higgins further emphasized that the payment had no strings attached, nor had there been any negotiations prior to

making the payment, other than to enquire if the victim was willing to accept the sum offered. Counsel agreed that it was

undesirable that a victim in these circumstances be drawn into any form of discussions or negotiations as to amount in any

sort of bargaining process.

He further stressed there was no “cheque-book” dimension to the present case. The respondent was a small farmer who

had liquidated his herd of cattle to raise the funds to make the compensation payment. It was as far removed from any

hypothetical case of a wealthy offender buying his way out of trouble as one could imagine.

Insofar as the actual sentence was concerned, Mr. O’Higgins further argued that even if incorrect in principle, the learned

trial judge’s sentence should not be interfered with. Amongst the grounds relied upon in making this argument were:-

(a) The case was now nearly 3 years old and the respondent had had it hanging over him throughout that period of time.

(b) The respondent had admitted to the offence the moment he was apprehended and had made a full confession thereafter,

followed by an early plea of guilt.

(c) The respondent was of good character and was genuinely remorseful for what he had done.

(d) The respondent had paid a substantial sum by way of compensation and had sold off his herd on the farm for that

purpose.

(e) The respondent had a major drink problem at the time and had since given up drinking completely.

(f) The respondent was an excellent prospect for rehabilitation, the particular offence being totally out of character and one

which emerged out of the peculiar circumstances of the night in question.

Furthermore, despite the generally accepted principles requiring the imposition of a custodial sentence in rape cases as

enunciated in D.P.P. v. Tiernan [1988] I.R. 250, the Court of Criminal Appeal had more recently confirmed in D.P.P. v.

NY [2002] 4 I.R. 309 that in exceptional cases it was not mandatory to impose a sentence of actual imprisonment. Mr.

O’Higgins submitted that the present case was one which , for the reasons cited, qualified as an exceptional case.

DECISION

Section 6 of the Criminal Justice Act, 1993, provides:-

“(1) Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or

in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on

application or otherwise) an order (in this Act referred to as a "compensation order") requiring him to pay

compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is

taken into consideration by the court in determining sentence) to any person (in this Act referred to as the

"injured party") who has suffered such injury or loss.

(2) The compensation payable under a compensation order … shall be of such amount … as the court

considers appropriate, having regard to any evidence and to any representations that are made by or on

behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the

damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action

against the convicted person in respect of the injury or loss concerned.

(5) In determining whether to make a compensation order against a person, and in determining the amount of

the compensation, the court shall have regard—

( a ) to his means, …

(13) In assessing for the purposes of this section the means of a person, the court shall take into account his

financial commitments.”

The starting point where sentencing in a case of this nature is concerned is to give due regard to the views of the Supreme

Court expressed in The People (Director of Public Prosecutions) v. Tiernan [1988] I.R. 250, in which the Supreme Court

considered the principles appropriate to sentencing in a rape case, bearing in mind, however, that no rape occurred in the

instant case, but rather an aggravated sexual assault. Finlay C.J. in the course of his judgment in that case stated at p. 253:-

“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular

circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance

which would justify departure from a substantial immediate custodial sentence for rape and I can only express

the view that they would probably be wholly exceptional.”

While as already emphasized, this is not a rape case, the learned trial judge in the course of the sentencing hearing expressed

himself satisfied that the respondent endeavoured to rape his victim and that the only reason that rape did not occur was

because she successfully resisted. One might perhaps add that the amount of alcohol consumed by the accused undoubtedly

impaired the ability of the respondent to actually rape his victim. Nonetheless, it appears to this court that the observations

of the former Chief Justice are apposite to cases such as that under consideration in the present case.

The court would be strongly of the view that the payment of money cannot, of itself, be viewed as an “exceptional

circumstance”. This issue was recently considered by this court in The People (D.P.P.) v. C. (unreported, 18th February,

2002). In that case, the same learned trial judge (Carney J.) had dealt with the issue of compensation offered or paid to the

victim of a sexual assault by the perpetrator. In the course of passing sentence in that case the learned trial judge stated:-

“My experience over 35 years in the practice of criminal law is that a compensation sentence has never been

mixed with a custodial sentence and the Act gives me express statutory jurisdiction to follow that long time

practice in the Irish Courts and accordingly in the light of the compensation which has been paid and which

has been accepted, I conditionally suspend the sentence. I want to make it clear that I would not have adopted

this course had I not been satisfied that it was fully present in the mind of the victim that in the event of the

compensation being accepted that the probabilities were that the matter would be dealt with non-custodially.”

However, despite the reference by Carney J. in that case to an “established jurisprudence” which would justify him in

adopting the course he did, Murray J. (as he then was) in D.P.P. v. C noted (at p.6):-

“Even though such a practice may very well have been extant in some courts in respect of certain offences, the

court is not at all satisfied that it has been a universal practice of the courts to apply such a principle that

would exclude the imposition of a custodial sentence as a matter of principle or practice in all cases where

compensation has been offered and accepted by the victim.

Indeed, in enacting s.6(1) of the 1993 Act, the Oireachtas clearly intended that a sentencing court should have

discretion when it makes an order requiring compensation to be paid by a convicted person to a victim that it

be in addition to or instead of a custodial sentence and the Oireachtas conferred such a discretion on the

court. The court feels that this is probably no more than to clarify the existing law as it always has been. It is

axiomatic to say that in imposing a sentence the sentencing court must take into account all the relevant

circumstances of the particular case. As Barron J. said in D.P.P. v. McCormack (unreported, 2000):-

‘Each case must depend on its special circumstances. The appropriate sentence depends not only

upon its own facts but also upon the personal circumstances of the accused. The sentence to be

imposed is not the appropriate sentence for the crime but the appropriate sentence for the crime

because it has been committed by the accused.’

Of course there are, and it is not necessary for this court to go into them exhaustively, other factors which are

relevant to the sentencing process and which are daily taken into account by a sentencing court, such as the

gravity of the offence, the previous record of the accused, the impact of the offence upon a victim, the prospect

of rehabilitation and the need to deter the commission of such offences or crimes generally. All of these are

factors which are taken into account and the payment of compensation is just one of those factors to be taken

into account. It has never been, as far as this court is aware, a principle that a custodial sentence is to be

excluded where compensation has been paid, nor has it ever been considered as an appropriate way to

approach sentencing in this court and this court holds that it is a mitigating factor but only one of several and

does not and can not in practice or in principle always preclude the imposition of a custodial sentence where

that is otherwise the appropriate sentence to be imposed.”

Later in the same judgment, the Court of Criminal Appeal expressly stated that the attitude of the victim to compensation

was not a relevant factor in this context and that the primary purpose of s.6 of the 1993 Act is to enable the court to impose

an order directing the payment of compensation where it considers it appropriate “even against the wishes of an accused or

convicted person”.

A number of English authorities were briefly opened by counsel for the applicant in the course of this hearing to suggest that

compensation could be directed to be paid even where a custodial sentence is being imposed, but the court is quite satisfied

that it need look no further than the judgment just cited to obtain all the guidance it requires to resolve the issues before this

court. The court is quite satisfied that there is no jurisprudence, principle or practice which renders the payment of

compensation to the victim of a sexual assault inconsistent with the imposition of a custodial sentence. Indeed, any such

supposed practice conflicts with and contradicts the express wording of s.6 of the Criminal Justice Act, 1993, which states

that any direction to pay compensation may be “instead of or in addition to dealing with him in any other way.”

This court agrees with the submissions made by counsel on behalf of the applicant and would be strongly of the view that

victims in circumstances of this nature should not be drawn into any sort of pro-active role in determining or negotiating the

amount of any compensation which an accused person may offer with a view to mitigating sentence. The extent of the

victim’s involvement should be either to indicate a willingness to accept or refuse any sum of compensation that may be

offered. Thereafter, it is entirely a matter for the court to determine the appropriate sentence having regard to all the multiple

considerations which must be borne in mind in this context, including any payment of compensation offered or made. It is

inappropriate in the view of the court to draw the victim in any way into the decision as to the amount of sentence.

While noting the argument of counsel for the respondent that no objection was taken on behalf of the Director to the

proposed course of action adopted by the learned trial judge on this issue, it is quite clear from a perusal of the transcript

that the learned trial judge had in his own mind the view that there was a clear and settled practice in this regard, namely, to

impose a non-custodial sentence in any case where the victim was prepared to accept a sum by way of compensation. The

victim had further been informed or advised that a likely consequence of such acceptance was the imposition of a non-

custodial sentence. The court views the overall approach of the learned trial judge to sentence in this case as mistaken and

will hold that there was an error of principle in the manner in which sentence was imposed, such as to require this court to

consider what the appropriate sentence should have been, due credit being given for the payment made of €15,000.

Despite the serious nature of this aggravated assault, the court is of the view that this case comes within the category of

exceptional cases noted in The People (D.P.P.) v. NY [2002] 4 I.R. 309. In that particular case, the exceptional

circumstances identified included the accused’s early remorse for his rape offence and his exceptionally honest acceptance

of responsibility, including his plea of guilty and his general good character. Furthermore, as in the instant case, the accused

was going to bear the stigma of being certified as a sex offender under the Sex Offenders Act, 2001. He had already served

7 months in prison, a factor which in that case persuaded the Court of Criminal Appeal to suspend the balance of the 3 year

sentence originally imposed.

In the instant case, the court is satisfied that the events of the night in question were quite exceptional and that the exposure

of the respondent to large amounts of alcohol and displays of lap-dancing in a nightclub in Dundalk triggered an episode

which was quite out of keeping with the character of the respondent. He was at the time a married man with a young child

who had never been in any sort of trouble with the law before. He was apprehended by the gardai within 30 minutes of the

offence and immediately faced-up to his responsibilities and confessed his guilt. He made a full statement following his arrest

in Dundalk Garda Station. He has made a full apology to his victim for the horrifying ordeal to which he subjected her.

While his victim undoubtedly believed she would be raped, the evidence on the sentencing hearing was that there had been

no penetration, although the victim did have some bruises and was undoubtedly severely traumatized by her experience.

Since the time of the offence, the respondent has given up alcohol completely, notwithstanding which his marriage has

apparently collapsed because of the ramifications of this assault. For the purpose of raising the necessary amount to pay

compensation, he sold off his herd of cattle to raise the sum offered in compensation. The victim did of her own volition

freely accept this compensation which is undoubtedly a factor which the court can, and must, take into account in deciding

what the appropriate sentence should be. In the view of the court, the respondent is a good prospect for rehabilitation and is

extremely unlikely to reoffend for all the reasons just described.

Furthermore, he has had this hearing hanging over him for a period of almost 3 years. In circumstances where the

respondent had been led to believe that a non-custodial sentence would be imposed and in circumstances where the victim

indicated a willingness to accept the sum offered, the court would be of the view that fairness would require that a custodial

sentence only be imposed where there had been an actual rape or some other major aggravating factor.

In the quite exceptional circumstances that obtain in this case, the court is of the view that, although the learned trial judge

erred in principle in the manner in which he approached sentence, the sentence which he actually imposed was appropriate

and will accordingly refuse the application.