Court of Appeal increases rape sentences from eight to fourteen years due to undue leniency under Criminal Justice Act 1993.

THE COURT OF APPEAL

[2013 No. 206 CJA]

The President

Birmingham J.

Sheehan J.

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

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

V. F.G.

RESPONDENT

JUDGMENTof the Court (Ex tempore) delivered by the President on the 1st day of December 2014

1. The respondent in this case pleaded guilty to repeated vaginal, anal and oral rape as well as sexual assault of the young daughter

of his neighbours. The child was five years of age when the first offence against her was committed and the offending took place

over a period of three and half years. They were committed in and about her family home. They were accompanied by circumstances

of particular depravity and perversion, including incidents that happened in an adjacent shed of which I will spare the court the sordid

details.

2. The offences to which the accused pleaded guilty took place between July 2004 and January 2008, a period of three and half

years. For each of these years, from 2004 to 2008, there is a series of the most serious sexual crimes, which I have mentioned.

These pleas were entered on the basis that other matters could be taken into consideration.

3. The trial was fixed for 29th of April 2013, and the accused pleaded guilty on 26th. The sentence hearing was on 29th of July 2013,

and the learned trial judge imposed a sentence on 31st of July 2013. On the fifteen rape counts, the judge sentenced the accused to

eight years imprisonment on each count, and on the five sexual assault charges he imposed five year sentences for each. All of the

sentences were to run concurrently, with an order to post release supervision for a period of eighteen months. The accused was also

declared a sex offender.

4. The D.P.P. applies to this Court for a review of the sentences on the grounds of undue leniency pursuant to s. 2 of the Criminal

Justice Act 1993. The facts of the case are outlined in the submissions of the parties and they were given in the evidence of Garda

Sloyne to the trial court.

5. The trial judge was informed about other proceedings concerning the victim of these offences, which were pending when he

sentenced the respondent, and for that reason, he did not say anything about the facts of the case, neither did he give a reasoned

decision showing his consideration of the case and balancing of the different elements. It is not possible, therefore, to note the

judge’s thinking process.

6. It is clear that the offences must be placed at the highest level of gravity on the scale of major sexual offences. The child victim

was just five years of age when the respondent began his invasions of her body in every possible way. The violent abuse continued,

as I have said, for a long period. He was a neighbour at this time who was in his 40s and having a sexual relationship with the child’s

mother; the latter had serious problems of her own, as did the child’s father. The violations were frequent, forcible and painful for the

victim, and she was subjected to even more humiliation by some modes of perverse gratification that the respondent favoured.

7. On any appraisal of the facts, the case stands at the most heinous level or point on the scale of gravity. In fairness to the

defence, Counsel, in urging such leniency as might be possible to the trial judge, acknowledged “the appalling nature of the offences

involved”.

8. The accused was not the only person who sexually abused this unfortunate child or otherwise abused her, but that does not affect

the accused’s culpability. The sentencing court had evidence of some of the psychological consequences of sexual abuse on the

victim and in her victim impact evidence she referred briefly to thoughts and dreams about him.

9. The points of mitigation put forward by Counsel were that the accused had had a difficult time at school because of intellectual

limitations and being subjected to ridicule and even bullying because of coming from the United States at a young age. He had

pleaded guilty, it is true, but that had only happened a few days before trial. There was also his cooperation in his garda interviews

and he freely admitted the offence that the victim described.

10. Two points of mitigation should be mentioned. First of all, the courts recognise the value of a plea of guilty, particularly in cases

involving sexual abuse, whether against children or adults. It is of course preferable, and is in accordance with the statutory provision

in this respect, that an early plea is particularly valued and appreciated and taken as mitigation. Although the plea in this case was

late, and thus not deserving of extra mitigation for that reason, it is nevertheless very properly conceded by Ms. Biggs, Counsel for

the Director, that the plea had real value in the circumstances of this case. The lateness of the plea, which might otherwise have

impaired or seriously diminished the value of such a plea, does not have such an impact in this case, although clearly it would have

been better had it been made earlier.

11. The second point is that Mr. Shortt, Counsel for the respondent in this Court, has drawn the Court’s attention to a psychiatric

report and to the contents of that psychiatric report as matters which were before the sentencing Court, and this Court takes note

of those. It is also relevant that the accused man has no previous convictions.

12. The trial judge said simply that he had taken into account the gravity of the crimes, the victim’s age, the effect on her and the

plea of guilty. The jurisprudence on this issue is well known and outlined in a series of cases, most recently in The People (D.P.P.) v.

Redmond [2001] I.R. (Unreported, CCA, 21st December 2000) which summarised the earlier decisions, and it is clear that undue

leniency in the section means what it says, but by implication, it is insufficient for this Court to be simply satisfied that it might have,

or would have, imposed a more severe sentence in the circumstances. This Court has to be satisfied that there was a serious

departure from the norm amounting in most circumstances to an error of principle.

13. In this case, the Court is satisfied that allowing for the maximum amount of mitigation that might have been brought to bear, the

learned sentencing judge fell into grave error of principle in considering that sentences of eight years imprisonment on the rape

charges were appropriate in this case. The Court will quash the sentences accordingly and proceed to consider the appropriate

sentences to be imposed.

14. Having made that decision, the Court is then in the position to invite the parties to either furnish additional material to the Court

or to make other submissions in respect of matters of mitigation. The sentence will remain as of now, but ultimately the Court is

indicating that it will consider the sentence to be unduly lenient, and will impose the appropriate sentence at the adjourned hearing.

Adjourned Sentencing Hearing: 13th February 2015

15. In a judgment that the Court delivered on 1st of December last, the Court concluded that the sentences imposed on the

respondent in this case were unduly lenient and put the matter back for sentence to today. In the meantime, some further material

was received. In the first instance, that consisted of psychiatric reports on the respondent that were available to the trial court, and

an up-to-date psychiatric report, and the Court has considered those. There were also some extra material and a helpful letter from a

teacher, dealing with the respondent’s circumstances. In addition, there was an up-to-date victim impact furnished and the Court has

considered all these matters and the helpful submissions that have been made by Mr Shortt S.C. for the respondent.

16. It is always unwise for a Court to declare that a particular case is the worst case it has come across, because that is often

confounded by experience of an even more depraved example. But this case has to be among the worst that courts have considered.

17. The respondent pleaded guilty to repeated vaginal, anal and oral rape as well as the sexual assault of the young daughter of his

neighbours. The child was five years of age when the first offence against her was committed. The offending took place over a period

of three and a half years. The crimes were committed in an about her family home. They were accompanied by circumstances of

particular depravity and perversion, including incidents that happened in an adjacent shed, of which the sordid details are better left

undescribed.

18. The offences took place between July 2004 and January 2008. For each of those years, there is a series of the most serious

sexual crimes. The pleas that were entered were on the basis that other matters could be taken into consideration.

19. The respondent pleaded guilty; his trial was fixed for 29th April and he pleaded guilty on 26th April. In many circumstances, the

value of the plea, which is undoubted and the Court acknowledges that, especially in a case of this kind, would be diminished by the

lateness with which the plea was offered. But the Court does not take that into account in this case and accepts that the plea of

guilty is to be given its full value. Equally, there were some mitigating circumstances in the relatively difficult childhood and schooling

that the respondent experienced, including the loss of a parent at a crucial age. So there are mitigating circumstances that apply to

him.

20. Having said all that, the Court must come to sentence, and the sentence has to be a severe one if it is to meet the justice of the

situation and if the Court is to fulfil its obligation in sentencing the respondent to the appropriate sentence in this case. The Court is

conscious that a much more severe sentence than it proposes could have been imposed and would not have been set aside on

appeal.

21. In all the circumstances, the minimum sentence that the Court will impose for these horrific crimes is a sentence of 14 years on

each of the 15 rape counts to run concurrently, and the Court will not interfere with the sexual assault charges. So, instead of the

sentences, the Court will impose a sentence of 14 years.

22. The Court emphasises that this taking everything into account by way of mitigation and that a more severe sentence could have

been justified, but the Court is making allowance for the features which have been mentioned by Mr. Shortt and all the other

mitigating circumstances.