Court of Appeal dismisses appeal against life sentence for exceptional rape of two young girls despite guilty plea.

THE COURT OF APPEAL

[Appeal No. 76/14]

Birmingham J.

Sheehan J.

Mahon J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JIMMY O’NEILL

APPELLANT

JUDGMENT of the Court delivered by Birmingham J. on the 21st day of December 2015

1. On the 3rd March, 2014, the appellant was sentenced in the Central Criminal Court (Carney J.) to life imprisonment. He now appeals

against that sentence. The sentence was imposed in a situation where the appellant had pleaded guilty to one count of rape and four

counts of s. 4 rape in respect of two young girls. Of note is the fact that the appellant, Mr. O’Neill, had entered pleas of guilty in the

District Court and had been sent forward to the Central Criminal Court on signed pleas, and had confirmed those pleas. Carney J.

imposed concurrent life sentences on each of the five counts to which pleas had been entered.

2. The details of the incident giving rise to this prosecution and the imposition of sentence are almost too horrible to recount. The

incident in question occurred on 28th September, 2013. On that occasion, the two young girls who were the injured parties, and are

cousins, were playing on a green area located outside their grandparent’s house. They were aged nine years old and six years old at

the time. They will be referred to in the course of this judgment as Suzanna and Carol Anne, respectively. They were lured from the

green area by the appellant to a flat in which the appellant was staying. He did this by asking them to accompany him to the flat with

a view to playing with a six-year-old girl there who, he said, wished to play. On arrival at the flat, he made demands of them and

forced them to comply with his commands by threatening to cut their parents’ throats as well as their own. He slapped the face of

one of the girls. Then, having removed the injured party’s clothes, the appellant proceeded to penetrate Suzanna orally, anally and

vaginally; thereafter, the appellant penetrated Carol Anne both orally and anally. As a result of having anally raped Carol Anne, there

was excrement on his genitals. Despite this, the appellant forced Carol Anne to perform oral sex upon him which caused her to gag

and spit the excrement onto her vest. At that stage, the appellant put his clothes back on, told the injured parties that they could

put their clothes back on and commanded them to wait in the flat before departing a short time later. The injured parties were able to

leave the apartment via a window. The appellant was arrested in the immediate aftermath of these events. The incident lasted

approximately 20 minutes. During the course of detention, he was interviewed on seven occasions. By the second interview, he was

struggling to cope. By the fifth interview, he made full admissions. In the course of the interview, he outlined how he had been

drinking that whole day from 7.05am that morning onwards, both cider and vodka, and how he had also taken Valium tablets.

3. So far as the appellant’s personal circumstances are concerned, he was 30 years of age at the time of the sentence hearing and

was the father of two daughters aged five and six years old. He had a considerable number of previous convictions between 2001 and

2013. However, all of these were District Court convictions, including a number of public order offences, and the longest custodial

sentence that had been imposed on him previously was one of six months. The number of public order offences suggested that

alcohol was a problem, and this was confirmed by the fact that he had been barred from his mother’s home because of his alcoholism.

There were no previous convictions for sexual offences.

4. The facts of the case were presented by Inspector Aidan Minnock. The cross- examination of Inspector Minnock by counsel for Mr.

O’Neill was designed to establish that:-

• Mr. O’Neill was a serial offender but a minor offender.

• Mr. O’Neill had problems with alcohol and substance abuse from a very early age.

• Mr. O’Neill had contact with the psychiatric services and, as far back as the 2000, had been diagnosed with a well

established depressive problem.

• Mr. O’Neill was very unstable emotionally from time to time, had not done well in school and his level of intelligence was

described as borderline.

• Mr. O’Neill’s family background was chaotic, having been abandoned by his father when he was six years old.

• There was a suggestion that Mr. O’Neill may have suffered organic brain damage as a young child when hospitalised

following an episode of turning blue as a result of a choking incident. There was no forensic report, as such, in relation to

this. Indeed, it must be said that there was a dearth of information by way of professional reports put before the court.

The prosecuting member was unaware of this, but was not in a position to refute it. Some old medical notes were made

available to the court, but there was no forensic report as such in relation to this.

• There was nothing sexual in the Mr. O’Neill's long list of previous convictions.

• From a very early stage, Mr. O’Neill had indicated that he would be seeking to be returned to the Central Criminal Court

on foot of signed pleas of guilty.

• It had been indicated to the families of both victims from an early stage that they could be assured that there was no

prospect of their children having to give evidence. Mr. O’Neill did not wish his legal representatives to view the tapes of

the interviews that were conducted with the children; this was a gesture that was of some comfort to both families.

5. Understandably, counsel for the appellant did not dispute the fact that these were offences of extreme seriousness, and his

argument before the Central Criminal Court was addressed to the contention that this was a case where a determinate sentence

would be appropriate and where an indeterminate sentence of life imprisonment would not be appropriate. In the event, it is submitted

on behalf of Mr. O’Neill that the trial judge erred in principle in imposing a life sentence in this case, where there had been a plea of

guilty. It is accepted on behalf of the appellant that even if the sentence of life imprisonment was set aside, that offences of this

seriousness would have to be met by a very severe sentence and that the case comes at the upper end of the spectrum for

sentencing.

6. The starting point for consideration of this issue is to be found in s. 29 of the Criminal Justice Act 1999. Section 29(2) provides:

“To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence

prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional

circumstances relating to the offence which warrant the maximum sentence.” (Emphasis added)

7. Also relevant is s. 29(1) which provides that a court should take into account the stage at which a person indicated an intention

to plead guilty and the circumstances in which any such indication was given. In this case, and somewhat unusually, the appellant

pleaded guilty in the District Court and was sent forward for sentence on signed pleas.

8. The statutory landscape was surveyed in the case of DPP v. Z [2014] IECCA 13, (a judgment of the Court of Criminal Appeal

delivered by Clarke J.). There, the Court had commented:-

“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.”

Victim Impact Reports

9. The Court had before it a number of victim impact reports; these included the report in relation to Suzanna, prepared by her

parents Ruth and Gerard, which was read to the Court on their behalf by Inspector Minnock, and the report in relation to Carol Anne

which was read to the Court by her father, John. [The names of the little girls and their parents have been changed to reduce the

risk of identification]. These reports make truly harrowing reading.

The Trial Judge’s Sentencing Remarks

10. The trial judge imposed sentence on the same day as he heard the evidence. He commented that he was not reserving judgment

in order to ease the suffering of everyone concerned. The judge did put the matter back to the afternoon. In relation to the facts of

the case, the trial judge had this to say:-

“The facts of this case are fully recorded on the transcript and do not require to be rehearsed by me here. I would find it

too upsetting to recite the facts adduced this morning. A feature of this case was to observe the faces of the hard boiled

press corp attached to this Court having difficulty listening to the facts emerging . . . . In the normal course, the accused

would be entitled to a substantial discount for employing the signed plea procedure, which had up to now, fallen into

desuetude in this Court. He would also be entitled to a substantial discount for his early plea of guilty and cooperation.

Unfortunately, for the accused, this case is too serious for his expectations in this regard to be given effect. For the past

twenty years I have refrained from saying that this is the worst case ever, because doing so has always prompted a

worse case to come along the following week. Mr. Giblin S.C. for the accused rightly perceived in this plea that the issue

is whether the case can be met with anything less than life imprisonment. The Court of Criminal Appeal has always leaned

heavily against non mandatory life sentences, but it has upheld them in some case. I have examined the cases where life

sentences mainly imposed by me in relation to children have been upheld, and I am satisfied that this case falls into that

category.”

The Imposition of a Life Sentence

11. Both in the sentencing court and before this Court, counsel on behalf of Mr. O’Neill reviewed the cases where life sentences have

been imposed at first instance and have then been considered by an appellate court, referring in that regard to cases such as DPP v.

D [2004] IECCA 8, DPP v. R.McC [2008] 2 I.R. 92 and DPP v. Z. While acknowledging the seriousness of the offending in the present

case, counsel submits that the offending is not at the same level as was in issue in those three cases where life sentences were

upheld. In DPP v. D, the accused had pleaded guilty to charges of rape of three of his daughters and charges of sexual assault of a

fourth daughter, the offences having occurred over a 20-year period when the victims were aged between six and twelve years old.

In DPP v. R.McC, the accused pleaded guilty to charges of rape, attempted rape, sexual assault and assault against six victims. Two

of them were his daughters, and four were his nieces. The offences were committed over an 11-year period. His daughters were as

young as five or six years of age when the abuse commenced. In DPP v. Z, the accused pleaded guilty, late in the day, to sample

counts of rape and child cruelty against four of his daughters.

12. The appellant submits that other cases where life sentences have been imposed and upheld have involved prolonged abuse by

persons in a position of trust and that what was in issue here was a single incident, albeit a very serious incident, which would not

appear to have been premeditated but rather was opportunistic. The point is also made that the period of time actually served by

persons on whom a life sentence is imposed is longer now than what was the case in the past. Again, the point is made before this

Court, as it was before the sentencing court, that if a life sentence is imposed in circumstances such as this, there will be no

incentive for individuals who have been charged with serious offences to enter a plea of guilty.

13. In criticising the sentence imposed, counsel is critical of the fact that no account was taken of the exceptionally early plea of

guilty, a plea entered in the District Court, and the way in which the case was met. Records were not sought in relation to the two

young girls by the defence, and the accused made clear that he did not wish his legal advisers to view the recordings of the

interviews that were conducted of the little girls, a course of action which provided a degree of comfort for the families involved.

14. Counsel is also critical of the remarks made by the trial judge in relation to the accused’s dysfunctional background and the

relevance of drink and drugs. In that regard, the sentencing judge had said in this case, as he had in others:-

“In relation to the accused’s dysfunctional background, I have regard to the ruling of Geoghegan J., that this affords little

if any mitigation. In relation to any question of drink or drugs, I have regard to the ruling of Murray C.J., as he then was,

that this affords no defence or mitigation in one’s responsibility to society.”

15. The reference to the views of Geoghegan J. is a reference to the case of DPP v. Stafford [2008] IECCA 15, where judgment was

delivered by Geoghegan J. and the reference to Murray C.J. is a reference to DPP v. Keane [2008] 3 I.R. 177. This Court, like the

Court of Criminal Appeal in DPP v. Adam Fitzgibbon [2014] 2 I.L.R.M. 116, does not agree that the remarks of the trial judge here fully

reflect what was being said by either Murray C.J. or Geoghegan J. In another case, failure to accurately reflect what was said by

Murray C.J. and Geoghegan J. might have caused considerable difficulties. However, given the terrible nature of the offences at issue

in the present case, counsel on behalf of the appellant was realistic enough to accept that such factors are unlikely to significantly

influence the outcome.

16. The issue really turns on the question of whether the circumstances of the offences in issue in the present case are exceptional

to the extent of permitting, or indeed even requiring, the imposition of life sentences and, secondly, whether the early plea of guilty

and the manner in which the appellant met the case meant that the imposition of an indeterminate life sentence was inappropriate.

Conclusion

17. In addressing the key element in this appeal, which is the appropriateness of indeterminate life sentences, it goes without saying

that these offences are offences of the utmost gravity; indeed, it is almost trite to say that. In the experience of members of the

Court, these offences are exceptional, exceptional in terms of the random nature of the attack on children at play, the depths of

depravity involved, and the extent of the cruelty and inhumanity inflicted on these young children.

18. It is the case that a plea of guilty will almost always see some reduction in sentence for the person entering it; where, as was

the case here, the plea was an early one, entered in the District Court and confirmed following the return for trial, ordinarily there

would be a significant reduction in sentence. That would certainly be so in a case where an accused met the case as this accused

has met his case: waiving medical records, requesting that the video recordings of the children’s interviews not be viewed and so on.

19. However, the Oireachtas has specifically identified that there may be cases where the imposition of the maximum penalty is

appropriate. Counsel says that if a life sentence is to be upheld in the present case, that this would involve a substantial broadening

of the category of cases where a non-mandatory life sentence could be regarded as appropriate. Awful as the present case is, it is

said that it lacks the element of sustained systematic abuse by a person in a position of trust which is present in all the other cases

where life sentences have been imposed and upheld. In the course of the judgment in DPP v Z, Clarke J., at para. 4.3, commented:-

“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.”

20. The appellant places considerable reliance on the extract just quoted. However, it must be noted that Clarke J. in the very next

sentence went on to say:-

“There may, of course, be other exceptional circumstances which could arise on the facts of other cases.”

21. While it is certainly the case that sustained systematic abuse by a person in a position in trust, is not in issue in the present

case, nonetheless, the facts of the present case, beginning as they do with the abduction of two young children, clearly put the

case into an exceptional category.

22. Cases where discretionary life sentences will be considered are likely to be rare, and those where discretionary life sentences, if

imposed, will be upheld are likely to be extremely rare. There are a number of reasons for this, not least the fact if life sentences in

such cases were to become usual that they would provide a disincentive for individuals to plead guilty. This aspect was commented

on by Kearns J., as he then was, in DPP v. R.McC where he commented:-

“There are also likely to be considerable negative implications for pending cases if the imposition of a non-mandatory life

sentence becomes a norm in circumstances where there has been a plea and co-operation by an accused person. An

offender with no previous convictions may well feel that the value of any plea or other co-operation will vanish into the

ether if a ‘life sentence’ remains a likely result when it comes to sentence. Many cases where there might otherwise be a

plea might as a consequence be fully contested. This would add to the stress and upset of victims, slow down the

efficient disposal of criminal work in the courts and add greatly to the cost and expense of processing individual cases.

Lengthy concurrent but determinate sentences, on the other hand, may be seen as providing a more tangible mechanism

for granting credit for a guilty plea and other mitigating factors in a form which is transparent and identifiable.”

This Court would respectfully agree with the views offered by Kearns J.

23. The distinctive feature of the sentence of life imprisonment is that it is indeterminate. Unlike a prisoner serving a fixed term, the

life sentence prisoner does not know when, if ever, he or she will be released. It is for this reason that even in very bad cases, the

court will think first of a lengthy determinate sentence.

24. While non-mandatory life sentences are likely to be very rare, the Oireachtas has specifically identified that there may be cases

where the imposition of the maximum penalty is appropriate even on a plea. It is cases such as this that the Oireachtas may well

have had in mind.

25. In this case the trial judge was a very experienced one indeed. He recognised that the manner in which the appellant and his legal

advisers had met the case was such that it would ordinarily have received considerable recognition. However, despite recognising

that, he felt that the exceptional circumstances of this offence merited the imposition of the maximum penalty, life in prison. The

judge has been criticised for not setting out in detail the reasons why he viewed a life sentence as appropriate, and indeed,

necessary. However, truly, this is a case where it can be said that the facts spoke for themselves. In the view of the Court, the

facts of this case are so exceptional that this was a conclusion which he was entitled to reach, and no error in principle has been

disclosed.

26. Accordingly, the Court will dismiss the appeal.