Court of Criminal Appeal dismisses appeal against suspended sentence for sexual assault where defendant ignored psychiatric advice.

THE COURT OF CRIMINAL APPEAL

Record No. CCA 223/2012

Fennelly, J.

deValera, J.

McGovern, J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

C. APPLICANT

Judgment of the Court of Criminal Appeal delivered the 5th day of day of November 2013 by Mr Justice Fennelly

1. The applicant seeks leave to appeal against the severity of sentence. The sentence was one of six years imprisonment with the

final 3 years suspended on certain conditions. It was imposed by Carney J, sitting in the Central Criminal Court, on 8th June 2012 on

the applicant’s plea of guilty to the offence of sexual assault contrary to s. 2 of The Criminal Law (Rape)(Amendment), 1981, as

amended by s. 21 of the Criminal Law (Rape)(Amendment) Act, 1990. The conditions imposed were that the applicant enter a bond in

the sum of €1,000 and keep away from the victim in perpetuity save with her consent. The learned judge also directed that the

applicant undergo 18 months post-release supervision and abide by conditions which had been specified by the Director of Public

Prosecutions, namely that the applicant submit to the supervision of the Probation Service, keep all supervision appointments, reside

at an address agreed with the probation officer and advise the probation officer of any change of address.

Facts

2. The applicant was 28 years of age at the time of the offence. He lived in a flat in Bantry, Co Cork. On the evening of 26th

November 2008 the applicant phoned his sister, Ms C, asking if she would call to the flat. She was a year younger than him. She lived

with her family in Bantry. She went to the flat at about 6:45 pm. The applicant was there in the company of two other men. They

watched a soccer match on TV and the three men drank cans of Guinness and Budweiser. Large amounts of drink, including drink

bought from an off-licence, were consumed over several stages during the evening: in the applicant’s flat, at a pub and at another

person’s flat.

3. At one point, the applicant was, his sister thought, behaving strangely. He was making smart remarks to her. She told him to “cop

himself on.” He kept wanting more drink.

4. The applicant and his sister went back to his flat at about 2:15 am. After they had arrived there, Ms C spent about 15 minutes

trying to get a taxi to take her home. The applicant was still making smart remarks. Subsequently she went to the bathroom. While

she was dressing herself in the bathroom, the applicant barged in the door, blocking the entrance, so that she could not get out. She

said she wanted to go home. He said: “Come on, we'll do it." She said: “no.” He pushed her into the bathroom, locked the door with

the latch and pushed her onto the floor. He took off her runners, pulled down her tracksuit bottoms and underwear. He kept saying:

"you're my girlfriend, you're my girlfriend."

5. Ms C insisted that she was not his girlfriend but his sister. He then got up to get out of the room and struck her across the face,

pushed her to the floor again and tried to put his penis into her vagina. He kept repeating: “you’re my girlfriend." He then got off her,

threw her clothes at her and said: "I didn't do nothing to you." She said: “you did.”

6. Ms C tried to call her mother. The applicant threw the mobile phone at her face.

7. Upon leaving the flat, Ms C called her other brother and told him of the incident. At about 4:40 am she reported what had occurred

to the gardaí. She was taken to the Sexual Assault Treatment Unit at the South Infirmary Victoria Hospital. She was examined; there

was no forensic evidence that penetration had occurred.

8. The applicant, who had previously been under psychiatric treatment, admitted himself to the psychiatric unit of Bantry Hospital. He

remained there until January. He was not fit to be questioned during this time.

9. On 13th January 2009, the applicant was arrested and detained. He was interviewed at Bantry Garda Station. He admitted the

facts of the assault. He expressed remorse. He said that he had not been able to penetrate his sister, because he could not get an

erection. He was charged with rape and sexual assault and sent forward for trial to the Central Criminal Court. He gave notice of his

intention of pleading guilty to sexual assault.

10. On 7th February 2012, the applicant was arraigned and pleaded guilty to the charge of sexual assault contrary to s. 2 of the

Criminal Law (Rape) (Amendment) Act, 1990, which was accepted by the Director of Public Prosecutions.

11. The sentence hearing took place before Carney J on 7th June 2012. The victim provided a short victim impact statement in which

she said that her brother, the applicant, had sexually assaulted her. She said that this had affected her, that she could not get it out

of her head, that she was very upset and that it had affected all of her family. She had even self-harmed since. She had taken three

overdoses. She said that she could never trust him again. She also said that she did not want him to go to jail. She wanted him to

get help and thought that would be the best thing for him. If he got help, she would be happy with that. It would still take a while to

get over what had happened.

12. Evidence was given that the applicant had pleaded guilty on 21st February 2012 to a later offence of robbery and possession of

an offensive weapon. On 25th May 2011, when he was on release from the psychiatric hospital, he had robbed a gift shop in Bantry

and stolen a sum of money. He left the knife in the shop. He was known in the shop. He returned to the ward on the same day and

told the nursing staff what he had done. It was accepted that this was a psychotic episode. He said that he did not know why he

had done what he did, but he had been drinking a lot.

13. The Garda evidence was that the applicant had had psychiatric problems since about the age of 14 as well is drinking problems

and that he had not had steady employment. He was also a regular cannabis user. The gardaí accepted that the difficulties he had

got into were the result of the consumption of alcohol and cannabis. He was also on prescription medication. The evidence was that,

when he was compliant with his medication, he functioned well. As part of his bail conditions, he had stayed in a psychiatric hospital.

14. It was established in cross-examination that, in the immediate aftermath of the assault, the applicant had been in contact with

his father and that he was suicidal and terribly remorseful. He had been unfit to be interviewed for a number of months following his

admission to the hospital. When in fact interviewed, he was entirely cooperative.

15. The applicant had no previous convictions.

16. Counsel for the prosecution submitted that the case fell within the upper range for sexual assault. An aggravating feature was

that the victim was the sister of the applicant. It was also noted that the applicant had been warned in relation to the danger of

taking alcohol and controlled drugs and yet went out and did so.

17. Three very detailed psychiatric reports were placed before the Court on behalf of the defence. They showed that the applicant

had suffered from severe psychiatric illness since the age of 14. He had become hypomanic with grandiose delusions. He suffered from

Bipolar Affective Disorder: “lifelong mood disorder with psychotic symptoms.” This could cause him to be extremely disinhibited and

elated. On several occasions, he required treatment at secure psychiatric units. One of these was Carrickmore in Cork City. His

behaviour was often extremely unmanageable. He required heavy sedation. The antipsychotic drug, Chlorpromazine was an effective

treatment. Since August 2011, he had been prescribed Clozapine, which appears to be a different drug. He also received other

prescribed medications. He had a history of high consumption of alcohol and had been advised he should control his alcohol in view of

the high levels of psychotropic medication he was taking. Nonetheless, he had been drinking very heavily in the weeks preceding the

commission of the offence.

18. During the sentence hearing before Carney J, it was established that:

1. the applicant had pleaded guilty to the offence of sexual assault;

2. he was sincerely remorseful;

3. his sister said in a Victim Impact Statement that she did not want him to go to jail, but that “help for

his condition would be the best thing for him;”

4. the applicant had no previous convictions.

19. Evidence was given at the hearing by Dr. Martin Lawlor, a consultant psychiatrist, based at the Carrickmore facility operated by

the HSE in Cork. His evidence was that the applicant had been very unwell since the age of 14, with multiple psychiatric admissions.

He said that an absolute blanket ban on use of alcohol was absolutely essential to the applicant’s ongoing care. It was also essential

that he remain fully compliant with his prescribed psychiatric medication. The appellant would have to remain on lifetime anti-

psychotic medication. On that basis it would be safe for him to live in the community if properly supported, especially by his medical

team. The regime had operated successfully, with regular review and supervision.

20. Dr Lawler would be “deeply concerned about his coping ability in prison.” He had marked “suicidal behaviour in the past.”

The sentence

21. The learned trial judge commenced his sentencing remarks by declaring the applicant to be a sex offender as required by law. He

said that the facts of the case had been set out in the transcript and did not require to be reiterated. In fact, he had specifically

requested that a transcript of the previous day’s hearing be prepared and provided for him.

22. He noted the wishes of the victim but said that they were not decisive, as the crime was one against society as well as against

the victim. He said that the applicant’s history of taking drink and drugs afforded no mitigation of his responsibility. He then said that

“insofar as any question of dysfunctionality is concerned, I have to have regard to the ruling of Geoghegan J, that this affords little, if

any, mitigation.”

23. The learned trial judge noted that he was required to identify the range of penalty available, to place the case, having regard to

all its circumstances, at the appropriate place on that scale and then to identify such factors as might be found in favour of the

accused and to discount from the figure he had identified as being appropriate.

24. He noted that the range of penalty was from a suspended sentence to 10 years’ imprisonment. He then said:

“I take account of, one, the inherent gravity of the offences involved, which………I emphasise is sexual

assault and not attempted rape. Two, the gross breach of trust involved in sexually assaulting his

younger sister. Three the gratuitous violence involved. Four. The effects on the victim.”

25. Based on that analysis he said that he assessed “the case as meriting a sentence of six years imprisonment and [I] sentence the

accused to that term, to date from yesterday.”

26. The learned judge then continued:

“In favour of the accused, I take account of, one, his plea of guilty and remorse; two, his victim’s

desire that he should not be imprisoned; three, his agreement to a blanket ban on alcohol and to remain

compliant in relation to psychiatric medication. In the event of any failure in this regard, leniency shown

will be fully clawed back. I also take account of his good character at the date of the offence. To take

account of these factors I will suspend the final three years of his sentence…”

(He then announced the terms of the bond which have been set out above).

Submissions on behalf of the applicant

27. The applicant complains, in written submissions, that the learned judge took no or no sufficient account of the applicant’s plea of

guilty, his remorse, the wishes of his sister (the victim) or his previous good character and lack of previous convictions.

28. The Court does not agree. The learned judge expressly mentioned each of these four matters. It is clear from his careful

requisition of the transcript of the evidence that he was considering all the evidence that had been placed before him. In particular,

the judge carefully and correctly noted that the wishes of the victim were not decisive, because the crime was also a crime against

society. In this particular case, the victim mentioned the need for the applicant to have treatment for his condition. It is clear that

the judge took this into account, as he said he did.

29. The two more substantial points made by counsel for the applicant were:

• That the learned judge failed properly to apply the principles of sentencing: once he has placed the

offence at its appropriate point in the range of available sentences, he should have given credit for the

various mitigating factors. In the instant case, the learned judge failed to give credit to the applicant

for the various mitigating factors but rather merely placed the sentence on the scale and thereafter

mentioned the mitigating factors in deciding to suspend portion of the sentence;

• That the learned judge attached little or no weight to the applicant's specific personal circumstances,

in particular his serious psychiatric illness, that he made no reference at all in his sentencing judgment

to any of the facts that had been outlined on the applicant's behalf. In particular, he failed to give any

or any sufficient weight to the evidence of Dr Martin Lawlor, Consultant Psychiatrist, with regard to the

applicant's psychiatric history and future prognosis and failed to give any or any sufficient weight to the

reports submitted to the Court with regard to the psychiatric care plan prepared for him into the future.

Conclusions

30. The first point presents the difficulty that the learned judge made a correct statement of the proper approach to sentencing, as

laid down in the judgment of Egan J in The People (DPP) v M [1994] 3 IR 306, at page 315:

“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.”

31. The maximum sentence laid down by statute for the offence of sexual assault is ten years imprisonment. The judge correctly so

stated. It is impossible to quarrel with the aggravating elements identified by the judge. The offence was extremely serious. While the

judge noted that the applicant had pleaded guilty to sexual assault and not to attempted rape, the acts the applicant admitted to

committing were violent and committed with total disregard for the fact that the victim resisted and made every effort to ward him

off. Finally, there is the shocking fact that the victim was the applicant’s sister. The victim impact statement showed that, not

surprisingly, she had suffered real, severe and continuing trauma.

32. It is true that the judge did not follow the course he had prescribed for himself. Having identified the aggravating factors, he

mistakenly did not apply the mitigating factors before arriving at the figure of six years. However, he clearly identified those factors,

leaving aside for the moment the question of the applicant’s psychiatric condition, in arriving at the final form of the sentence. In

substance he applied the mitigation to the suspension of the sentence rather than to the full length of the sentence.

33. In the view of the Court, while the learned judge fell into error, this was a formal error and did not result in an error of substance.

The seriousness of the offence, even taking the mitigating elements into account well merited a sentence of six years imprisonment.

In other words, if the judge had followed the correct course and had applied the mitigating factors before rather than after arriving at

the figure of six years, it would not, in the view of this Court have been seriously possible to argue that the resulting sentence was

excessive.

34. Finally, it is necessary to consider the way in which the learned judge treated the applicant’s undoubtedly very serious psychiatric

illness. Counsel has referred the Court to a statement of Flood J in imposing sentence in the Central Criminal Court in June 1995 in The

People (at the suit of the Director of Public Prosecutions) -v- C (M) (Unreported, High Court, June 16, 1995). Flood J said (page 17 of

the Judgment):

"If it can be established, by expert medical evidence, that the rehabilitation of a mentally disordered accused can be

facilitated by the imposition of a less restrictive sanction then the Court, in a proper case, is justified in imposing a lesser

sentence, or canvassing the range of non custodial sentencing options provided by law. The taking into account of these

considerations in respect of a mentally disordered offender is but a particular example of the general constitutional duty of

a trial judge to impose a sentence that strikes the balance between the particular circumstances of the commission of the

relevant offence and the relevant personal circumstances of the person accused."

35. The Court was also referred to a passage from Mr Tom O'Malley’s invaluable work on Sentencing Law and Practice at page 403.

Citing the Australian decision in R v Tsiaris [1996] 1 V.R. 398 at 400 he said:-

"Serious psychiatric illness not amounting to insanity is relevant in sentencing in at least five ways.

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal

responsibility. Where that is so, it affects the punishment that is just in all the circumstances and

denunciation of the type of conduct in which the offender engaged is less likely to be a relevant

sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is

imposed and the conditions in which it should be served. Third, a prisoner suffering from a serious

psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played

a part in the commission of the offence. The illness may have supervened since that time. Fourth,

specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally,

psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would

on a person in normal health.”

36. In the present case, the learned judge responded to the evidence and argument based on the applicant’s psychiatric condition by

remarking cryptically that Geoghegan J had said that “dysfunctionality…… affords little, if any, mitigation.”

37. The judge did not identify the authority for that statement. The context of the learned judge’s reference to “dysfunctionality”

was the consideration of the psychiatric condition of the applicant. It would appear that the judge believed he was bound by a

decision o this Court to treat psychiatric illness which had had a bearing on the commission of the relevant offence as providing little

or no mitigation of the guilt of the accused. It appears possible that the learned judge was referring to the judgment delivered on

behalf of this Court by Geoghegan J in The People (at the suit of the Director of Public Prosecutions) -v- Stafford (Unreported Court

of Criminal Appeal 14th February 2008). The judgment in that case dealt with the “dysfunctional” history of a family in respect of drink

and drugs. Geoghegan J thought there were “sound policy reasons why minimal importance can be attached to mitigating arguments

based on drink and drugs.” He was not dealing with mental illness. It is not clear whether the learned judge in the present case

intended to refer to that case. Whether he did or not, there does not appear to be any decision of this Court saying that psychiatric

illness should not, in an appropriate case, give rise to mitigation in sentencing.

38. Counsel for the prosecution does not, in fact, argue that the psychiatric condition of an accused person is incapable of amounting

to a mitigating circumstance. Rather, it is submitted that the learned judge did, in fact, take into account the applicant’s psychiatric

condition. He had heard extensive oral evidence from Dr. Martin Lawlor and had engaged with it by asking questions during the

evidence. He gave specific consideration to the question of rehabilitation of the applicant by suspending the final three years of the

sentence on bond.

39. This Court accepts that, if it is shown that the offending behaviour of an accused person has been significantly caused or

affected by his psychiatric condition, that is, depending on all the circumstances, capable of amounting to a mitigating circumstance.

The culpability of a person for a particular act will always be considered in the light of the presence or absence of deliberation or

malice associated with the act. Calculation and deliberation will aggravate, while inadvertence or accident may mitigate. Where the

act has been significantly the result of a psychiatric condition, the moral guilt of the accused may be less, depending on the

circumstances. That qualification is important. The sentencing court will have to take account of all the circumstances, which will

include the extent to which the accused is aware of or responsible for his condition or careless in regard to its treatment.

40. In the present case, the psychiatric evidence showed that the applicant had been under treatment for his condition for more that

ten years before the commission of the offence. The applicant had received very extensive and caring treatment from psychiatrists of

a high level of expertise. Two key elements were that the applicant was repeatedly made aware of the vital necessity of his

respecting his medication programme and, more particularly, that he abstain from taking alcohol. It is clear from the psychiatric

reports that the applicant repeatedly failed to respect his psychiatric advice. He failed regularly to take the prescribed medication.

More importantly, he continued to take alcohol to an extreme extent. This had led him to being readmitted to hospital on several

occasions.

41. It is clear that the offence in question was committed following a period of extremely heavy drinking.

42. The result is that, while it is true that the applicant’s underlying psychiatric condition contributed materially to his commission of

the offence, the fact that it was not under control on the relevant date was, to an important degree, the result of his own failure to

follow the professional advice available to him.

43. It is also important to note that the sentence ultimately imposed was carefully balanced. In the first place it involved the

imposition of a primary sentence of six years’ imprisonment which, in the view of the Court, was appropriate to the seriousness of the

offence. This is so even after mitigation for the plea of guilty, remorse and previous good character. In the second place, the learned

judge suspended half of that sentence on conditions which were directly relevant to facilitating the applicant’s rehabilitation by

treating him for his psychiatric illness. The judge attached importance to the evidence that it was vital that the applicant abstain

from alcohol and noted his promise to do so.

44. The essence of the applicant’s appeal is that the sentence imposed by the learned judge failed to take adequate account of the

successful treatment regime which the applicant was undergoing. In reality, the judge could have satisfied the requirement suggested

only if he had imposed an entirely suspended sentence on condition that the applicant continue to submit himself to that regime. The

Court does not consider that an entirely suspended sentence would have been justified by the facts and circumstances of the case.

The offence was very serious. The applicant represented a continued risk of offending so long as he failed to adhere to his medical

treatment. There was ample evidence before the Central Criminal Court that he was a person who had failed to observe those

requirements on a number of occasions. The Court was justified in adopting the sentencing formula which it did, an effective three-

year custodial sentence followed by a supervised period subject to the important condition of a total ban on the use of alcohol.

45. For these reasons, the Court will dismiss the application for leave to appeal.