Court of Criminal Appeal allows appeal and suspends sentence for elderly indecent assault applicant on good behaviour undertaking.

COURT OF CRIMINAL APPEAL

Kearns J.

Birmingham J.

Edwards J.

[C.C.A. No. 70 of 2008]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JAMES KENNEDY

APPLICANT

JUDGMENT of the Court delivered on the 14th day of April, 2008 by Kearns J.

On 26th November, 2007 the applicant pleaded guilty to two counts of indecent assault in the Central Criminal Court. The first

offence occurred on a date unknown between January, 1972 and December, 1975 at an address in Dublin. On that occasion the

applicant had entered the bedroom of his wife’s niece where he undid his trousers and exposed himself to her. His niece was then only

nine or ten years of age. The applicant himself was born on 14th June, 1922 and was thus in his fifties when this offence occurred.

The second offence, also one of indecent assault, similarly occurred between the same dates when the applicant again entered the

complainant’s bedroom, put his hand under the bedclothes and fondled the complainant in and about the genital area.

A statement of complaint was made in 1999. The applicant was interviewed in 2000 and charged in 2001. Relief by way of judicial

review proceedings seeking prohibition was refused in October, 2006.

In respect of the first of the said offences, the applicant was sentenced to six months imprisonment. In respect of the second

offence, the applicant was sentenced to nine months imprisonment, such sentence to run concurrently with the six month sentence.

The present appeal was given an early date for hearing by this Court by reason of the fact that the sentence might have expired

before the appeal was heard, and also because of the applicant’s advanced years and rapidly deteriorating state of health.

In the course of the appeal various arguments on behalf of the applicant were advanced which may be summarised in the following

manner:

1. While the Central Criminal Court deals with grave cases, not all cases before that court are grave. On behalf of the

applicant, Mr. Gageby S.C. argued that the present offences were nowhere near the higher end of the scale. He

submitted that the first offence was just about on the cusp of criminality. The second offence could hardly be

characterised as falling into the middle range of such offences, particularly having regard to the fact that the same

occurred at a time when the law did not provide for intermediate offences such as is now provided for in sections 2 and 3

of the Criminal Law (Rape) (Amendment) Act, 1990. Mr. Gageby submitted that the learned trial judge should have

addressed the issue of whether the offences might have been triable summarily, particularly in circumstances where a jail

sentence was being imposed.

2. The applicant was in a very poor state of health at the time the sentence was imposed. A large number of medical

reports had been placed before the Court which indicated that the applicant was effectively housebound. His mobility was

poor and he suffered from a wasted left leg and arm and could not walk for any distance. He lives with his wife, who is

some twelve years his junior, and their family home had required significant modification in recent years including the

installation of a stairlift, grab rails, a walk-in shower and the removal of the bath. He suffered from urinary incontinence

which was treated by the use of absorbent pads and also on occasion from faecal incontinence. He had a heart attack in

1996 which was treated by angioplasty. He had treatment for skin cancer in 2001. He had surgery for the removal of

cartilage from his spine in 2006. He takes a vast range of medication for angina, asthma, high blood pressure, depression

and skin problems. He also suffers from dizzy spells and can fall down unexpectedly as a consequence of transient

ischaemic attacks. Mr. Gageby suggested that the judgment of the learned trial judge (Carney J.) did not indicate which,

in particular, of the medical reports were operative in the judge’s mind. Nor was it clear that he had given adequate

weight to the cumulative affect of the applicant’s many illnesses and disabilities or to the effect that a custodial sentence

would have upon his remaining health.

3. The applicant has no previous convictions and has expressed genuine remorse for his actions. Evidence was given on

the sentencing hearing by his eldest son to the effect that he accepted full responsibility for his actions, and that he was

deeply regretful for the pain caused to both the complainant’s family and to his own family.

In the course of written submissions, the applicant placed reliance on a number of authorities. In The People (D.P.P.) v. P.O.C.

(Unreported, ex tempore, Court of Criminal Appeal, Hardiman J., 28th May, 2003), this Court noted (at p.7 of the judgment) that a

sentence imposed on a man in his seventies will occupy a more significant portion of his life than a sentence imposed in circumstances

where the offences been reported immediately. In OB v. DPP (Unreported, ex tempore, Supreme Court, 5th February, 2007) prohibition

was granted by the Supreme Court to an eighty-seven year old applicant in relation to offences which were twenty-six to thirty years

old. Hardiman J. described the issue to be decided as “a strong case in what you might call visceral justice.” The Court pointed out

that it must be alert not to replace one injustice with another. In P.T. v. DPP (Unreported, Supreme Court, 31st July, 2007) prohibition

was also granted by the Supreme Court in a case where the applicant was eighty-seven years old, in ill-health and had been removed

from his duties as a priest. Denham J. said at p. 11:-

“It demeans a system of justice if its process is one of vengeance, or has such a perception. It evokes concepts of

primitive jurisdiction. The People of Ireland under the Constitution require that there be due process in the justice system

… It is a question of proportionality.”

Summarising, it was submitted on behalf of the applicant that the learned trial judge failed to give sufficient weight to the impact of a

prison sentence on a man of the applicant’s age and health, and the proportion of the applicant’s life which would be taken up by the

sentence imposed.

In written submissions filed on behalf of the respondent, it is accepted that this was an exceptional case. The respondent accepts

that the age of the applicant, coupled with his state of health and decrepitude, would have permitted the imposition of a suspended

sentence had the learned trial judge been minded to approach the case in that fashion. The respondent accepted that if the learned

trial judge had suspended the sentence in its totality that an application by the respondent for a review of sentence on grounds of

excessive leniency would not have followed.

Having regard to the undoubtedly exceptional circumstances of this case, and the manner in which it has been met by an on behalf of

the respondent, the Court is disposed to adopt the course of suspending the sentences in this case in their entirety. The learned trial

judge set out succinctly his reasons for imposing a custodial sentence and it is only to the extent that he gave insufficient weight to

the illnesses and declining health of this very old man that it can be said there was an error of principle in this case. In so holding the

Court in no way ignores the gravity and seriousness of the offences and the grave hurt and distress which they caused to the

complainant.

However, the Court will allow the appeal and suspend the entirety of the sentence upon the applicant’s undertaking to be given in

Court today to keep the peace and be of good behaviour.