Court of Appeal allows review of suspended sentence for rape, finding it unduly lenient due to respondent's health.

THE COURT OF APPEAL

Ryan P.

Sheehan J.

Mahon J.

31CJA/13

In the matter of an application pursuant to s. 2 of the Criminal Justice Act 1993 and

In the matter of Bill No. CC 79/12

Between

The Director of Public Prosecutions

Applicant

and

Patrick O’Brien

Respondent

Judgment delivered on the 19th day of January 2015, by Ryan P.

1. This is an application by the Director of Public Prosecutions for an order reviewing the sentences imposed on the respondent at the

Central Criminal Court on the 21st January, 2013 in respect of eight counts of rape and eight counts of indecent assault, which were

sample counts on full facts, the offences having been perpetrated on the respondent’s daughter between 1973 and 1982. The

sentences were of twelve years imprisonment in respect of each count of rape, with nine years suspended and three years

imprisonment in respect of each count of indecent assault, all the sentences to run concurrently.

2. The respondent was born on the 4th August, 1940 and is now aged 74 years The abuse happened between 1973 and 1982 when

the child was aged from seven years to sixteen years. It began on the night before she made her first Holy Communion when the

respondent had sexual intercourse with her. Over the next nine years the abuse continued regularly and frequently so that it became

routine. The mother would go out at night to play bingo leaving her at home with the respondent who raped and indecently assaulted

her. It was a nightly occurrence for him to rape her while watching television and when the other children were in bed. The assaults

were not confined to the family home and took place in other locations, such as in woods or a car park or in the home of a family

friend. The respondent would collect the victim from school at lunchtime and bring her home to rape her while the mother was out at

work. The abuse included oral sex as well as vaginal and anal rape. The victim required hospital treatment when she was aged twelve

for anal warts, when unfortunately this indication of sexual activity was not recognised by the hospital.

3. The victim was beaten and she lived in a culture of fear. The family decided to relocate to England in 1982, but she was made to

stay in Ireland with her father who moved her into the mother’s bed and continued to rape her nightly. The abuse continued until the

child was sixteen years.

4. The victim read a powerful impact statement to the court. She described the terrible trauma that she underwent at the hands of

the respondent and her feelings of despair and how she believed that she deserved everything she got. She felt that she was a

helpless pawn in an evil marriage. She attempted suicide on two occasions, one of them requiring treatment in intensive care. Her

capacity for forming human relationships was destroyed. She has deep psychological scars but she described relief to a degree by the

court process and the fact that she had been vindicated. Nothing however could undo the enormous damage her father did to her

which is something that she has lived with since she was a young child and will have until she dies.

5. The torture that the child suffered is truly shocking. The long-term effects that the woman described to the sentencing court are

consistent with our knowledge of the devastating consequences of sexual abuse of children.

6. The learned trial judge heard evidence of the investigating Garda officer, the victim impact statement and the plea in mitigation

made by counsel for the accused on the 14th January, 2013. Counsel in pleading for mitigation emphasised the importance of the

accused’s guilty plea. She pointed out the long time that had elapsed since the offences were committed, that there were no

previous convictions and the last one had been committed in 1982. The respondent had not been convicted of any offence

subsequent to 1982 and he was remorseful for what he had done. On his behalf she offered an apology to his daughter.

7. Counsel pointed out that the respondent was infirm of health and he was of advanced age. She cited the judgment of DPP v.

Kennedy but acknowledged that the offending was of a wholly different order in that case Counsel did not seek to equate the two

cases, but simply to refer to the principle. The specific mitigating factor relied on by counsel was the respondent’s state of health.

She summarised his medical condition and handed into court a list of the various conditions from which he suffers. Counsel said that

the respondent has ongoing and constant pain of different degrees which is worse at night than during the day. He wears a morphine

patch all the time. He falls regularly, perhaps twice or three times a week. He was suffering at the time of sentence from cracked or

broken ribs due to the most recent fall and had been in hospital as recently as the previous week. He was a regular attender at A & E

for these reasons. His list of ailments included arthritis and he was on medication for a number of different things. He had takesn

thirteen different tablets that morning and would take another six at night before going to bed. As well as the morphine patch, he

used Solpadeine for pain relief. He had a heart condition for which he used a spray. He had obstructive airway and lung problems. He

remained indoors and only left home by ambulance or private car when there was an emergency. He could not manage stairs and

there was a difficulty with a carotid artery. Counsel mentioned gastritis, hernia and other matters, his diet was necessarily limited, he

was being treated for heart disease and he had difficulties with emphysema in addition to the arthritis already mentioned. Finally, she

mentioned that the respondent is on oxygen, that he has a tank that is switched on overnight so that he has eight hours of oxygen.

8. The learned judge referred to a previous case in which he had heard evidence in respect of an infirm accused from the Director of

Nursing of the Prison Service to deal with how the State was in a position to cope with somebody in ill health. The court put the

matter back to allow an opportunity to adduce such evidence and that was heard on the 21st January, 2013.

9. The Director of Nursing of the Irish Prison Service, Ms. Frances Nagle O’Connor, gave evidence that the Prison Service would be

able to deal with the list of ailments from which the respondent was suffering. She said that the care provided in the Prison Service

would match the community equivalent. She was cross-examined by counsel for the respondent who questioned her assertion that

the prisoner would be as well provided for in prison as in the community and she was clear that that was the case. She pointed out

that the previous week a person in prison had had a major hear attack and was very successfully treated within the prison setting. A

person living in the community was as likely to experience a medical emergency as one in prison.

10. When it came to sentence the trial judge said that it was one of the most difficult cases to resolve. He said that it was one of

the worse cases of abuse on a daughter as one could possibly find. The judge briefly summarised the evidence as to the extent and

frequency and nature of the abuse. He said that he had very little difficulty in saying that it was at the top of the scale as regards

offences of this nature by fathers on daughters. On the other hand, there was the health position of the respondent. The judge

referred to the case of DPP v. Kennedy but noted the difference because the offences in that case were at a low level of gravity, one

being described as on the cusp of criminality. Nevertheless, the judge noted that the Court of Criminal Appeal had suspended in total

the moderate sentences imposed on the grounds of the accused man’s state of health.

11. The judge proceeded to identify the range of penalty and to locate where this case lay on the scale. He had regard to the breach

of trust involved, the youth of the victim, the long time over which the abuse extended and the effect that it had on the victim. He

assessed the case as meriting a sentence of twelve years imprisonment. He imposed terms of imprisonment of that length on the rape

counts and in respect of the indecent assault counts, he imposed sentences of three years imprisonment, all the sentences to run

concurrently. Then, he said, he had to have regard to what was to be found in favour of the accused and predominantly there was

the very serious and exceptional medical condition. There was also the plea of guilty and the remorse. He referred to the length of

time from when the offences were committed and the respondent’s good behaviour since and a history of employment. Taking

account of these matters the judge suspended the final nine years of the rape sentence, but he also decided to certify that the case

was a fit case for appeal and he continued the bail pending the hearing of the appeal by the Court of Criminal Appeal.

12. Counsel for the Director returned to court on the 24th January, 2013, and drew attention to s. 31 of the Criminal Procedure Act,

2010 which provided an automatic right to appeal, replacing the previous requirement for leave to appeal. In the circumstances, there

was a question mark as counsel submitted over the jurisdiction of a trial court to grant bail until the hearing of the appeal.

13. The trial judge said that he had sought to express the gravity of the case and second to take account of the health situation of

the respondent and other factors. He was, however, in doubt.

“Now, having designed the sentence, I was concerned as to whether I might be giving too much weight to the health

situation and I was anxious for an immediate involvement in the case of other judges. I frankly did not want to take the

responsibility of this particular case entirely on my own and I wanted the burden to be shared with me by others.”

14. The trial judge accepted that the procedure he had adopted was not appropriate. He said that he really wanted the opinions of

three experienced minds as to whether he was giving excessive weight to the medical situation and he pointed out that it was open

to the Director to appeal on the ground of undue leniency, which is what has happened.

15. The medical information put before the court on behalf of the respondent was in the form of two letters from his General

Practitioner Dr. Gallagher. The first is dated 13th December, 2012 and is as follows:

“Mr. Patrick Austin O’Brien suffers from a wide variety of complaints which I will enumerate in this letter.

1. Rheumatoid Arthritis: pain, stiffness and poor mobility and balance.

2. Chronic Obstructive Airways Disease: breathlessness, cough, chest infection, hypercapnia hypoxia, tremor,

confusion, respiratory failure.

3. Hiatus Hernia and Gastritis; nausea and indigestion abdominal pain.

4. Ischaemic heart disease: chest pain, breathlessness, poor exercise tolerance.

5. Lung lesions currently under investigation.

Mr. O’Brien is on a wide range of medications for all his medical conditions. As requested I have compiled a list of his

consultants for you information.”

16. The doctor attached as he said a list of nine consultants. In another letter of the 21st January, 2013, Dr. Gallagher answered

queries that the respondent’s solicitor had raised. He confirmed that the respondent required oxygen for concentrated air overnight.

He said that the list of specialists he had previously provided remained as presented and that the respondent might require urgent

care for cardiac or respiratory conditions intermittently. Mr. O’Brien had been admitted to the Rheumatology/Rehabilitation Unit of Our

Lady’s Hospice for rehabilitation and pain control on a number of occasions. He enclosed a list of his current medications. He said that

Mr. O’Brien requires a walking aid to mobilise and is unable to use stairs. His exercise tolerance is poor limiting the distance he can

walk to about 25metres at a time. He required concentrated air overnight. He had a number of ongoing medical conditions including

pulmonary lesions which are under investigation and that require attendance at outpatient’s clinic.

Submissions of the Director

17. The Director argues that the sentence imposed by the learned trial judge represented an error in principle and was unduly lenient

in all the circumstances. Specifically, the trial judge was not justified in granting the lengthy suspension of sentence that he did when

there was insufficient medical evidence before him to warrant such a course. He also did not take sufficiently into account the

evidence of the Director of Nursing Services that the accused’s medical conditions would be as well cared for in custody as in the

community. The seriousness of the charges, the facts of the case and the relationship between the parties meant that the sentence

was unduly lenient and the sentence was inconsistent with the learned trial judge’s depiction of the case as being at the highest level

of seriousness. The breach of trust involved, the prolonged period of offending and the severe residual symptoms suffered by the

victim militated against the course adopted by the trial judge and rendered his decision reviewable as being an error in principle.

18. The Director submits that it was wholly inappropriate to seek to rely on the case of DPP v. Kennedy – the Court of Criminal Appeal

14th April, 2008 unreported to justify the imposition of the largely suspended circumstances. The grounds on which the Appeal Court

in Kennedy suspended the whole of the are so wholly incomparable with the facts of this case that it makes the citation of Kennedy

quite inappropriate.

19. There was a substantial divergence from the norm in this case which was more than sufficient to set aside the test for

intervention under s. 2 of the 1993 Act, in accordance with the decision in DPP v. Byrne [1995] 1 ILRM 279.

20. Experience in this country and elsewhere in recent years particularly has shown that cases of historic child abuse emerge and

involve accused persons of advanced years and also sometimes of ill health who must nevertheless face the consequences of their

actions and the proper requirements of justice in the public interest and in the interests of victims.

21. The Director submits that the learned trial judge should have had more regard to the evidence of the Director of Nursing in the

Irish Prison Service. Her evidence was clear that the medical conditions of the respondent would be as well treated in prison as in the

community. There was therefore no reason why he could not serve his sentence while being looked after properly in respect of each

and all of his ailments. In this respect also, the case was entirely different from that of the applicant in the Kennedy case. The

Director also refers in detail to the particular circumstances of the case to emphasise the seriousness, which indeed the learned trial

judge acknowledged when he said that it was one of the worst cases of abuse on a daughter that one could possibly find. Many, if

not all of the aggravating features associated with sexual abuse of children are present in this case.

22. The Director also submits that the sentence did not have sufficient regard to the impact on the victim or of the need for

deterrence.

Submissions of the Respondent

23. The respondent submits first that the alleged inadequacy of the medical information was not a point raised at the sentencing

hearing. The medical conditions of the respondent as described in the admittedly limited material provided was not contested by the

prosecution. Moreover, there was sufficient medical information before the judge to enable him to make the finding of fact that the

accused was of such infirmity that the suspension of nine years of the sentence was justified.

24. Counsel argues that the ratio of the decision in DPP v, Kennedy confirms that a sentencing judge must give weight to the illness

or declining health of an accused. This is particularly so in the case of an elderly offender. Notwithstanding the differences in the

facts of the cases, the respondent argues that the principle of taking serious illness into account so as to affect even a much lower

sentence than would normally be expected has been applied in a number of the cases that are cited in the submissions.

25. The respondent points out that he is now serving a sentence of imprisonment and that the impact of a significant sentence which

he must serve, apart from the suspended element, is increased in view of his advanced age and state of health.

26. The fact that a substantial time has elapsed since the commission of these crimes is also a significant mitigating factor.

27. The learned trial judge’s expression of his concern about the matter and that it was a difficult case to resolve reflected a careful

approach on his part and one that is not indicative of error in principle.

28. It is submitted that there were important mitigating factors in the plea of guilty, the expression of remorse, the length of time

since the offences were committed and the absence of any previous convictions. The victim acknowledged that the guilty plea had

been gratifying and the respondent submits that his pleas were indeed of great benefit to her.

29. The principle of deterrence was sufficiently respected by the overall sentence of twelve years that was imposed before the nine

years suspension was allowed in respect of the respondent’s health condition.

30. The respondent had also brought a motion to permit additional evidence to be adduced but did not proceed with that application.

Discussion

31. Delay in a case of this kind, in which the status of the perpetrator and his conduct in committing the abuse were factors in the

causation of the delay, as to which the Court is entitled to draw inferences from the abuse and the relationship, is not generally a

matter of mitigation. See People (DPP) v J.M. [2002] 1 IR 363.

32. Illness or infirmity is taken into account in sentencing as a mitigating feature as it is relevant to the circumstances of the

particular accused, which must be assessed in each individual case, as stated in D.P.P. v. McCormack [2000] 4 I.R. 356. There is no

rule that prevents those who are ill from being sent to prison and the courts have recognised that such circumstances can be dealt

with in custody.

33. Similarly, advanced age is relevant but not in any way a bar to a custodial penalty. The unfortunate experience of recent times in

this and other countries is that such persons have come before the courts with considerable frequency to answer charges of historic

abuse and, when convicted, many have faced imprisonment.

34. Mr O’Malley in the second edition of his book on Sexual Offences observes that “Reasonably heavy sentences were imposed on

some elderly offenders, but leniency was generally extended to those who were in advanced old age, ill health or both, and all the

more so where the offences were at the lower end of the spectrum.” He goes on to record a case comparable with the instant one

and where a sentence of life imprisonment was imposed on a man aged 73 who was convicted of 87 counts of sexually assaulting,

raping and orally raping daughters aged between five and 11 years and of sexually assaulting his son between ages three and six.

35. A terminally ill man of 74 years who had weeks or months to live was sentenced by the Central Criminal Court to imprisonment for

18 months because of the gravity of the abuse of five daughters.

36. In The People (DPP) v J.M. [2002] 1 IR 363, the accused was 84 years of age and medical reports indicated that his physical and

mental health were in an advanced state of deterioration which the Court of Criminal Appeal considered to be the most important

reason for suspending the sentence. It was not the function of the Court to extend mercy to the offender; that was for the

executive under the Constitution. The Court had to reach a just and proportionate sentence in the particular circumstances of the

accused.

37. In D.P.P. v. E.M. (ex tempore, Court of Criminal Appeal, 7th November, 2011) a sentence of 15 years for sexual assault was upheld

where the accused’s medical conditions were not deemed to be life threatening and could be dealt with by appropriate medical

treatment while in custody:

“The present case… relates to… an elderly gentleman who suffers from diabetes, he has some cataracts, and therefore is

visually impaired, and had some other health difficulties, none of which are life threatening in any way, and all of which

presumably can be dealt with in the usual was by the appropriate medical treatment when he is in prison.”

The case of D.P.P. v. Kennedy, upon which the trial judge placed great weight, was a case of very particular and exceptional

circumstances, and in which there was significant medical evidence presented to the court.

38. The learned trial judge had evidence before him about the respondent’s medical condition in the form of letter reports from his

General Practitioner, Dr. Gallagher. It would undoubtedly have been preferable and more cogent if detailed reports from the

respondent’s consultants had been before the court. The dates of the medical reports indicate that they were produced as a matter

of urgency for the hearing. However, sparse as they were, they did indeed contain an amount of information that was legitimately

before the court. If the prosecution had wished to challenge any such evidence, it would have been appropriate to request an

adjournment so that a medical examination could be carried out on behalf of the prosecution. That did not happen. It seems to the

court that the information was far from an ideal in form and extent and detail, but it was nevertheless medical information that was

relevant and that was legitimately relied on by counsel for the respondent in making her plea in mitigation. The learned trial judge was

entitled to take the information into account in deciding on sentence. The court would not wish to indicate its endorsement of the

sufficiency of this mode of establishing serious medical evidence to a sentencing court.

39. The central question in the case is whether the trial judge erred in principle in allowing by way of excessive mitigation for the

respondent’s medical condition. It is clear that the trial judge put the case in the most serious category and this Court endorses that

view. He located the offence at a level of seriousness warranting a sentence of twelve years imprisonment. That is entirely

unobjectionable and indeed a more severe sentence could hardly have been considered inappropriate.

40. It is clear that the judge himself was extremely uneasy about the allowance that he ought to make for the medical condition of

the respondent. He said so on a number of occasions. He wished to have the views of colleagues in another court on the question.

His specific concern was that he might be suspending too much of the sentence.

41. Insofar as the learned trial judge was of the view that the case of DPP v Kennedy, unreported, Court of Criminal Appeal, 14th

April, 20108, was a relevant precedent, this Court does not agree. Although it is true that the respondent in this case does suffer

from a lengthy list of ailments of considerable severity and representing substantial disability on his part, they do not bear comparison

with the Kennedy case. That was a very extreme case, in which to take one point, counsel for the Director of Public Prosecutions

accepted that if the trial judge had suspended the sentence in its totality, there would not have been an application for review of the

sentence.

42. It is legitimate and proper for a judge to take into account a guilty person’s age and state of health and other personal

characteristics when deciding on sentence. Old age and ill-health are generally to be considered as mitigating factors. But that is to

be distinguished from circumstances of such infirmity of body or mind that would make it exceptionally oppressive and unjust for the

person to undergo a term of imprisonment,

43. In this case the respondent is and has been suffering from a number of serious illnesses with painful and unpleasant symptoms and

with significant disabilities. But the evidence before the trial court was that he would be as well treated in prison as in the community.

The point therefore is that he is entitled to such mitigation as his health condition warrants but he cannot be treated as person for

whom a prison sentence would be impossible to tolerate. His illness is persistent, causing pain and discomfort and disability but is not

worse for being in prison rather than living in the community.

44. In the opinion of this court, the approach adopted by the learned sentencing judge was an error in principle and the sentence as

imposed, insofar as it directed the suspension of nine years, was unduly lenient.

45. In accordance with established jurisprudence the court will afford the parties an opportunity to put relevant up to date material,

including in particular any medical reports, before the court so that it can impose the appropriate sentence in accordance with

section 2.