Court of Criminal Appeal dismisses appeal against life sentences for rape and child cruelty, upholding maximum penalty despite mitigating factors.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 288/11]

Clarke J.

Moriarty J.

McCarthy J.

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Z

Accused/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.

1. Introduction

1.1. The accused/appellant (who, in order to preserve the privacy of the victims, the Court will refer to as “Mr. Z”) pleaded guilty on

the 30th November, 2011, to fourteen sample counts of rape and child cruelty against four of his daughters. Those pleas of guilty

were late pleas as, on the previous day, the 29th November, Mr. Z had pleaded not guilty to 271 counts of rape and cruelty. Mr. Z

was sentenced by Carney J. on the 9th December, 2011, to life imprisonment on each of the counts of rape and 2 and 7 years

respectively (being the maximum sentence permitted in each case) on the counts of cruelty. The remaining counts were, after a

discussion with counsel, taken into consideration.

1.2. The sentencing judge had available to him a comprehensive account of the appalling and depraved abuse, both physical and

sexual, inflicted by Mr. Z on his four daughters over a prolonged period of time. In all the circumstances, as pointed out, the

sentencing judge imposed the maximum sentence permitted in respect of each of the offences and in particular imposed a sentence of

life imprisonment in respect of each of the counts of rape. It is as against those sentences, and in particular the imposition of the life

penalty, that Mr. Z appeals. While it was accepted by counsel that, as a matter of practicality, it was only the life sentences which

would affect the length of time which Mr. Z would spend in prison, nonetheless, it was said that the other sentences were wrong in

principle and were reflective of what was said to be the erroneous approach of the sentencing judge. As the question of the

appropriate range of sentences available to a trial judge in a case such as this was the subject of some debate at the sentencing

hearing, the Court will turn firstly to that hearing.

2. The Sentencing Hearing

2.1. In the course of the sentencing hearing, a discussion occurred between the sentencing judge and counsel for the

prosecutor/respondent ("the DPP") concerning the appropriate approach to sentencing in a case such as this. Initially, counsel for the

DPP submitted that the case was, on its facts, at the top end of the range. There could be little doubt, on the basis of the evidence,

that counsel was correct in that regard. It would frankly be difficult to overestimate to the severity of the many cruel and depraved

crimes committed by Mr. Z against his own children.

2.2. Thereafter, however, the trial judge sought further assistance from counsel for the DPP in relation to the actual range of

sentences which might be considered appropriate for a case of this type being one at the top end of the range. Having taken

instructions, counsel submitted that the top end of the range, even in cases where there has been a plea of guilty, permitted either a

very lengthy determinate sentence or a life sentence. In that context, counsel made reference to the decision of Charlton J. in the

Central Criminal Court in Director of Public Prosecutions v. Drought (Unreported, Central Criminal Court, 4th May 2007).

2.3. The Court should, at this stage, indicate that, in its view, such an exchange is entirely appropriate. For many years it was the

practice in criminal courts for the prosecution not to offer any view on sentence as such. Clearly evidence was led as to any

circumstances material to the exercise of the courts sentencing role, including evidence as to aggregating factors or as to previous

convictions. However, it was not the practice for counsel for the prosecution to offer any view to the trial judge as to how the

factors present in an individual case ought convert into an actual sentence or range of sentences.

2.4 Whatever may have been the merits of such a practice in the past, it seems to this Court that such a practice can no longer be

justified, at least since the introduction of a system of appeals, on the basis of undue leniency, which can be taken by the DPP (s. 2

of the Criminal Justice Act 1993). It seems to this Court that it is incongruous that the DPP should be entitled to criticise on appeal,

on the basis of undue leniency, a sentence imposed by a sentencing judge without having first suggested to the sentencing judge the

sentence or range of sentences which it was submitted ought be considered appropriate.

2.5 In that context it is also important to note that there have been developments which ought assist, at least in many types of

cases, the prosecution in being able to place such guidance before a sentencing judge. First, this Court has endeavoured, in a number

of areas, and in appropriate cases, to conduct an analysis of the case law in relation to sentences for particular types of offences

and give some general guidance as to the type of sentences which might be appropriate for offences with a particular level of

seriousness along the spectrum. An example can be seen in Director of Public Prosecutions v. Carl Loving [2006] 3 I.R. 355, which

sets out a detailed structure in respect of the factors to be taken into account when sentencing for child pornography offences.

These factors were recently summarised in Director of Public Prosecutions v. Brian O’Byrne (Unreported, Court of Criminal Appeal,

17th December 2013) (see also Director of Public Prosecutions v. Derrick Stronge [2011] IECCA 79 in relation to the offence of

dangerous driving causing death and Director of Public Prosecutions v. Brian Wall [2011] IECCA 45 in relation to undue leniency

applications in respect of sentences imposed for offences under s. 15A of the Misuse of Drugs Act 1977). There is no reason why the

attention of a sentencing judge should not be drawn to such decisions and submissions made as to where, in the light of the analysis

by this Court, the offence in question is said to lie along a spectrum of severity. In many of the cases this Court had endeavoured, as

it will do in this case, to identify the principal factors which will ordinarily influence a decision as to where along the spectrum of

seriousness of the offence concerned a particular offence might lie. In some cases, this Court may endeavour to provide further

guidance as to how such factors may convert into actual sentences. For example, in a judgment delivered today in Director of Public

Prosecutions v. Ryan, a formation of this Court (differently constituted in part) sought to give such guidance in relation to sentencing

for certain firearms offences. Likewise in a further judgment delivered today in Director of Public Prosecutions v. Fitzgibbon similar

guidance is given in respect of assault causing serious harm.

2.6 In addition, there is increasingly information available through the ISIS (Irish Sentencing Information System) project, which

provides details as to the range of sentences which are typically imposed by sentencing judges for particular types of offences.

2.7 In this Court’s view, there is now an obligation on the prosecution to draw to the attention of a sentencing judge any guidance,

whether arising from an analysis carried out by this Court or from ISIS or otherwise, which touches on the ranges or bands of

sentences which may be considered appropriate to any offence under consideration and the factors which are properly, at least in

ordinary cases, to be taken into account. In many cases, this should not impose any significant burden on the prosecution for the

sources ought be easily recognised. In addition, it seems to this Court that it is incumbent on the prosecution to suggest, where such

guidance is available, where the offence under consideration fits into the scheme of sentencing identified and why that is said to be

the case. Finally, the prosecution should indicate the extent to which it is accepted that factors urged in mitigation by the defence

are appropriate and give at least a broad indication of the adjustment, if any, in the overall sentence which it is accepted ought to be

considered appropriate in the light of such mitigation.

2.8 Without engaging in such an exercise, it is unfair that the sentencing judge should be capable of being criticised on appeal by the

DPP for undue leniency where the DPP has not suggested to the trial judge the sentence or range of sentences which is said to be

appropriate in the first place. If a sentencing judge imposes a sentence outside the range suggested by the DPP, then it is, of course,

open to the DPP to appeal, provided that the divergence from what is said to be an appropriate approach to sentencing involves an

error of principle. But that right of appeal carries with it an obligation to indicate, in advance, to the sentencing judge, what the DPP

considers the proper approach should be in the first place.

2.9 It should also be acknowledged that assistance on sentence from the DPP of the type identified in this judgment can only be

conducive to creating greater consistency and must also lead to a reduction in the number of appeals. It does also need to be

emphasised that the obligation is a general one but should not be taken to extremes. Where, for example, counsel for the DPP is

aware that a particular judge has been regularly addressed on the appropriate parameters for a particular offence in the recent past,

there is no need for a formulaic repetition of the same submissions in every case. It is, however, important to emphasise that the

obligation on the DPP is to provide real assistance on the question of sentence which goes beyond vague generalisation.

2.10 Of course, the sentencing judge is in no way bound by the submissions of the DPP. It is open to defence counsel to submit that

the case falls in a different part of the spectrum or that the range of actual sentences suggested by the DPP in respect of a

particular part of the spectrum does not reflect an appropriate approach in accordance with decided cases or other relevant sources.

Obviously, in addition, it is also open to defence counsel to put forward any matters which are urged in mitigation and to indicate the

effect that such matters ought have on sentence subject, of course, again, to the entitlement of counsel for the DPP to comment on

any such mitigating factors and the weight to be attached to them.

2.11 It is the case here that the trial judge has imposed the maximum sentence of life imprisonment. In substance the case made on

this appeal on behalf of Mr. Z is that the imposition of the maximum sentence was, in all the circumstances, inappropriate.

3. Discussion

3.1. A starting point has to be a consideration of s. 29 of the Criminal Justice Act 1999 ("the 1999 Act"), which provides, in

subsection (2), that, for the avoidance of doubt, a court is not precluded from passing the maximum sentence in respect of any

offence, notwithstanding a plea of guilty, if the court is satisfied that there are “exceptional circumstances relating to the offence

which warrant the maximum sentence”. Subsection (1) also provides that the court should take into account the stage at which the

person indicated an intention to plead guilty and the circumstances in which any such indication was given.

3.2. It follows that there is no barrier, as a matter of law, to the court imposing a life sentence in respect of rape, notwithstanding a

plea of guilty. However, it equally follows that in order to impose a life sentence the court must be satisfied that there are

exceptional circumstances in accordance with the section.

3.3. The Supreme Court had occasion to consider the effect of s. 29 in Director of Public Prosecutions v. R. McC. [2008] 2 I.R. 92.

The unanimous judgment of the court was given by Kearns J. At p. 102 of the report, Kearns J. began to consider the sentencing

jurisprudence which pre-dated the enactment of s. 29 of the 1999 Act. Kearns J. noted that it had always been accepted that a plea

of guilty is a mitigating circumstance “which normally attracts some reduction of sentence”. However, Kearns J. went on to note

that the amount of any reduction was very dependent on the stage in the proceedings at which it was offered. Kearns J. held that s.

29 did not give effect to a substantial repeal of the well established jurisprudence on sentencing to which he had referred. However,

Kearns J. did note that s. 29 enabled a court, when there were exceptional circumstances and notwithstanding the existence of some

mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. As Kearns J. pointed out that does not mean

that the court is not under a clear obligation to consider all mitigating factors and accord them due weight, but rather that there may

be cases where, even having done so, the maximum sentence may nonetheless be imposed.

3.4. It is also of some relevance to note that Kearns J. quoted with approval from the decision of this Court in The People (Director of

Public Prosecutions) v. C.D. [2004] IECCA 8 where, in delivering the judgment of this Court, McCracken J. said the following:-

“While the trial judge in the present case did not expressly refer to that section, nevertheless there could be no error in

principle if he was satisfied that there were exceptional circumstances which would warrant a maximum sentence.”

3.5. It is important to note that Kearns J. emphasised that it was important for sentencing judges who propose to impose the

maximum sentence to set out with some clarity what circumstances concerning the offence were found to be exceptional. However,

in the light of the approval of the comments of McCracken J. in C.D., it does not seem to this Court that the Supreme Court in R.

McC. was indicating that there must be a formulaic recital of the fact that there were exceptional circumstances. Rather what the

Supreme Court determined was that it should be clear from the ruling of the sentencing judge, both that the sentencing judge found

in substance there to be exceptional circumstances and also what those circumstances were.

3.6. Before leaving the decision in R. McC. and the decision in C.D. referred to in it, it is appropriate to note the findings that gave

rise, on the facts of those cases, to exceptional circumstances. In C.D., McCracken J. referred to:-

“… a combination of the breadth of the outrages, the fact that the rape and sexual assaults were systematic, the fact

that four daughters were involved, the fact that the offences took place over a period of 20 years and the impact on

the victims. This is a combination of factors which he was certainly entitled to regard as exceptional by any standards.

Accordingly, this Court considers that he was entitled as a matter of principle to impose life sentences.”

3.7. Likewise, in considering the case then before the Supreme Court in R. McC., Kearns J. referred to:

“the horrific nature of the rapes and the prolonged period during which the “campaign” of offences took place, involving

as they did multiple victims of tender years, were such as to justify categorisation in the very worst category,

particularly having regard to the fact that the victims were daughters of the offenders and in the case of the first

defendant his nieces also. It is impossible to conceive of a greater breach of parental responsibility than occurred in

these cases. Quite clearly, the maximum sentence should be reserved for the worst variant of the offence in question. I

am satisfied that there were those exceptional circumstances common to both cases such as to permit the imposition

of life sentences despite the mitigating circumstances of the plea of guilty present in both”.

3.8. It is striking that, in both of the cases then under consideration, what was regarded as exceptional was the prolonged and

horrific nature of the abuse carried out by a parent on children.

3.9. Against that background, it is appropriate to consider both the factors urged in favour of the proposition that there are

exceptional circumstances in this case and the factors urged on behalf of Mr. Z which suggest that a maximum sentence was

excessive to the extent of amounting to an error of principle on the part of the sentencing judge.

3.10. So far as exceptional circumstances are concerned, attention is drawn to the severity and prolonged nature of the crimes

including the extraordinary cruelty and depravity (both physical and sexual) shown, together with the fact that Mr. Z had 87 previous

convictions, mostly relating to sexual abuse against another daughter in respect of which he had pleaded not guilty and had been

convicted before the Central Criminal Court in November, 2010. The facts disclosed that the daughter involved in that case had had

two children by Mr. Z as a result of a multiplicity of rapes. Mr. Z was sentenced to fourteen years for those offences.

3.11. So far as the offences currently before the Court themselves are concerned, counsel on behalf of the DPP drew attention to

what is correctly said to be the level of depravity displayed by Mr. Z, the level of violence associated with and contemporaneous to

sexual abuse, the gross breach of trust involving the father of the injured parties and the lengthy duration of time over which those

injured parties were subjected to systematic physical and sexual degradation. In addition, attention is drawn to a factor taken into

account by the trial judge, being threats to kill the victims, which threats were taken very seriously by the children concerned.

3.12. On behalf of Mr. Z, it is suggested that insufficient account was taken of the plea of guilty, even though it was late, and in

particular the fact that it nonetheless saved the injured parties from having to give evidence.

3.13. It is said that the trial judge did not properly consider whether there were sufficient exceptional circumstances to meet the

requirements of s. 29 and that the trial judge failed to have sufficient regard to the dysfunctional background and alcohol abuse of

Mr. Z, together with any possible rehabilitation. It is also said that undue weight was placed on the threats to kill, and, indeed, as a

separate ground, that the approach of the sentencing judge in relation to those threats was itself wrong in principle.

4. Conclusion

4.1. The test is as to whether there are exceptional circumstances surrounding the offence which would warrant the imposition of the

maximum penalty of life imprisonment notwithstanding such mitigating factors as there may be. While it may always be possible to

envisage a worse case (abuse might have gone on for a longer period or involved more children or had different, and arguably more

depraved, features), nonetheless, in order that it might be said that there are exceptional circumstances relating to the offence, it is

not necessary that it be impossible to envisage an even more serious offence of the type concerned. What is required is that the

particular offence not only be of a very serious type of the offence concerned but be so in an exceptional way.

4.2 While it might have been preferable for the sentencing judge to have identified the features which he considered rendered these

offences exceptional, this Court has no doubt that a fair reading of the sentencing judge’s ruling as a whole makes it clear that he

considered that the evidence which he had heard placed this case in the exceptional category. It seems clear from the first two

paragraphs of the transcript of the trial judge's ruling on sentence that he considered the facts as had been recorded on the

transcript of the sentencing hearing as in indicating a range of offending “both as regards multiplicity of offences and the

heinousness of the acts making up the constituent parts of each individual crime” as giving rise to exceptional circumstances. This

view is confirmed by the fact that, in the first part of the final sentence in para. 2, the sentencing judge states that he is satisfied

that “a life sentence [is] warranted on the facts of the case”.

4.3 This Court is strongly of the view that the sentencing judge was more than entitled to come to such a conclusion on the evidence

before him. As noted earlier there are striking similarities, at least at a broad level, between the offences to which Mr. Z ultimately

pleaded guilty and the offences which were under consideration in both R. McC. and C.D. While, as the Court has already noted, it will

be always possible to point to certain distinctions, it seems clear to this Court that those two cases and this case all fall into an

exceptional category which involves prolonged and depraved sexual and physical violence against persons who are entitled to place

their trust in the perpetrator. There may, of course, be other exceptional circumstances which could arise on the facts of other

cases. However, this Court is of the view that offences of this type are such as entitle a sentencing judge to take the view,

depending on the severity and nature of the abuse concerned, that exceptional circumstances exist which might justify, even in the

presence of some mitigating circumstances, the maximum sentence of life imprisonment. The exceptional circumstances in such cases

are to be found in the nature of the offences themselves.

4.4 That is not to say that the sentencing judge does not have to consider such mitigating circumstances as were present, for if they

were sufficiently weighty, it might be that the maximum sentence would not be justified notwithstanding the exceptional nature of the

crimes. As pointed out by Kearns J. in R. McC., the effect of s. 29 is that a maximum sentence can be imposed even though there

may be some mitigating factors which might, in an ordinary case, require to be reflected in a somewhat reduced sentence. In

substance s. 29 requires the Court to balance the exceptional nature of the offence (if that be found) with such mitigating factors as

are present and clearly permits the court, in an appropriate case, to take the view that the exceptional nature of the offence

outweighs any mitigation present so that the maximum sentence can still be imposed.

4.5 Against that background, it is necessary to look at the mitigating circumstances put forward. The plea of guilty was very late. It

occurred the day after Mr. Z had initially pleaded not guilty. There was, therefore, no prior intimation that a contested trial was not

going to take place. It is true that, as counsel urged, the victims were saved the ordeal of having to give evidence by the plea of

guilty, however late, and that there are policy reasons for encouraging guilty pleas. However, a great deal of the anxiety which

victims feel stems from the anticipation of having to give evidence in the context of a contested case where it might reasonably be

anticipated that their evidence will be strongly challenged. While the timing of a plea will always be relevant, it seems to this Court

that it is particularly relevant in serious sexual offence cases such as this, for an early plea will remove from the victim at least some

of the anxiety which victims will necessarily feel concerning an impending trial. A late plea is, therefore, of little value.

4.6 Next, it is said that the trial judge erred by indicating that the only way in which the victims could be protected (given the

threats made by Mr. Z) was by the imposition of a life sentence. It is, of course, the case, as counsel for Mr. Z argued, that our

sentencing law does not permit persons to be imprisoned simply for the purposes of preventing other crimes. Convicted persons are

required to receive the appropriate sentence which reflects the offence and the offender. Having served such a sentence, a

convicted person is entitled to be at large and can be no more subject to continuing imprisonment for the protection of the public

than any other person about whom there might be legitimate concerns as to the commission of future offences, but who has not, as

yet, been convicted of any.

4.7 However, this Court is not satisfied that, on a fair reading of the entirety of the judgment of the sentencing judge, it can be said

that the trial judge fell into the error of imposing an impermissible sentence for the purposes solely of protecting against future crimes.

The sentencing judge was entitled to take into account the very serious and credible threats made by Mr. Z to his victims in reaching

an assessment as to whether this was, indeed, the sort of exceptional case which would warrant a maximum sentence even in the

presence of mitigating factors. It is clear that the sentencing judge was satisfied that the nature of the offences themselves were

sufficient to render them exceptional. There can be no doubt but that the sentencing judge was entitled to take that view.

4.8 Finally, it is said that the sentencing judge failed to take any adequate account of the dysfunctional background of Mr. Z and his

abuse problems. In taking the view that those factors were of little weight, the sentencing judge made reference to an unnamed

decision of Murray C.J. to the effect that the voluntary consumption of drink or drugs does not amount to mitigation and to the ruling

of this Court delivered by Geoghegan J. in Director of Public Prosecutions v. Martin Stafford [2008] IECCA 15 to the effect that an

accused’s dysfunctional background provides little mitigation. This Court has, in a judgment also delivered today, in the case of

Director of Public Prosecutions v. Adam Fitzgibbon, made clear that the suggestion that drink or drugs abuse and a dysfunctional

background can never be a mitigating factor of any great weight is not a proposition which can properly be derived from those cases.

This Court agrees with the analysis of that issue in Fitzgibbon. It is clear, therefore, that there may be cases where either or both, or

particularly a combination of, a dysfunctional background and substance abuse, can be a factor which needs to be materially taken

into account.

4.9 What Murray C.J. emphasised in the case referred to (which was Director of Public Prosecutions v. Keane [2008] 3 I.R. 177) was

that the fact that an offence was committed while someone was under the influence of drink or drugs could not, of itself, be taken to

be a mitigating factor. What Geoghegan J. emphasised in Stafford was that many persons with difficult backgrounds do not fall into

criminality and that a difficult background cannot, of itself and without more, be taken to be a significant mitigating factor. However,

that is not to say that a sentencing judge is not required to take into account all the circumstances of the case and, if it be

appropriate on the facts, take into account the circumstances of the offender, including any particularly severe dysfunctional

background and persistent difficulties with abuse most especially where those difficulties are connected with such a background and

where such problems are being or are likely to be addressed. It might, therefore, on one view, be said that the sentencing judge in

this case did not give adequate consideration to those factors. However, having reviewed the evidence which was available to the

sentencing judge, this Court is of the view that, on the facts of this case, any mitigation which might derive from background or

substance abuse could not possibly outweigh the exceptional nature of the offences themselves.

4.10 A like comment can, in the Court's view, properly be made in respect of any prospect of rehabilitation. That such a prospect is a

matter which the Court must always take into account cannot be doubted. However, the weight to be attached to such

consideration is very much dependent on the facts of the individual case. Where a cogent basis is put forward for suggesting that

there is a real prospect of rehabilitation, same may carry significant weight so far as mitigation is concerned. In contrast, where any

hope of rehabilitation is purely speculative, little weight may attach. In addition, it must be noted that any such speculative hope of

rehabilitation will be present in virtually every case. The whole point of s. 29 of the 1999 Act is that it may nonetheless be permissible

to impose the maximum sentence notwithstanding limited mitigation. Mitigation which would be present in virtually any case can not,

therefore, of itself, necessarily exclude the imposition of the maximum penalty in an exceptional case. If it could, it would have the

effect of rendering the section largely inoperative.

4.11 In those circumstances, this Court is of the view that such mitigating factors as were present were not of a sufficiently weighty

nature as would have precluded a sentencing judge from imposing the maximum sentence given the horrific and exceptional nature of

the crimes for which Mr. Z was to be sentenced. In those circumstances, this Court is of the view that the sentencing judge was

entitled to impose the maximum sentence of life imprisonment and that there was no error in principle in the sentencing judge taking

that approach. For those reasons, this Court will dismiss the appeal.