Court of Appeal reduces sexual assault sentence from eight to six years and suspends final year.

THE COURT OF APPEAL

Birmingham J

Sheehan J.

Edwards J.

85/13

The People at the Suit of the Director of Public Prosecutions

V

L.B.

Appellant

Judgment of the Court (ex tempore) delivered on the 11th day of February 2015 by Mr. Justice Birmingham

1. On the 23rd February, 2013, the accused was found guilty of 22 counts of sexual assault. It is in the case that the judge had

directed the jury to return a verdict of not guilty in respect of one count and that the jury acquitted the appellant on one further

count. On the 7th March, 2013, he was sentenced to what was described as an effective sentence of eight years I will refer in due

course to the sentence in more detail.

2. A number of grounds of appeal have been advanced in both written submissions and in oral argument. The area of most focus has

been on the failure to sever the indictment that in a situation where there were four complainants. It is the situation that an

application was made at the outset of the trial to sever the indictment. Consideration of the question of joint trials of multiple

offences or whether separate trials should be ordered begins with the Criminal Justice Act 1924 and in particular the rules that are set

out in the schedule therein relating to the procedures for the indictments. Rule 3 provides that charges for any offence whether

felonies or misdemeanours may be joined in the same indictment if these charges are found in the same facts or form a part of a

series of offences of the same or similar character. Rules 6(3) provides; when before trial or at any stage of a trial, the court is of

opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one

offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any

one or more offence charged in indictment, the court may order a separate trial of any count or counts of such indictments.

3. The issue has arisen for consideration quite frequently in recent times in the cases of alleged sexual offences and more particularly

has arisen in cases where what is involved is alleged offences committed against children. The argument today has focused on the

inclusion of two complainants RM and DC where only one count is alleged to have been committed and that to have been committed

at a time unspecified during a lengthy window period. The question is posed whether the case is one which if tried alone would have

resulted in a conviction and indeed the question is posed whether if that case was to be considered in isolation that a prosecution

would have been directed and would have proceeded.

4. Then so far as the complainant DL is concerned, there are two counts that are in issue. There is what has been referred to as the

Bingo Hall count and there is also a count relating to inappropriate sexual activity which is alleged to have occurred on a couch in the

same location as other offences are alleged to have occurred, but the couch not featuring in the other offences.

5. The authorities establish that there is a line to be drawn between two types of evidence, sometimes referred to as systems

evidence and on the other side of the line similar fact evidence. Though it must be said immediately, that the language is not always

used with precision and sometimes those two terms are used interchangeably. What is clear is that there is a line to be drawn and

what is equally clear is that it is not always going to be easy to identify on which side of the line a particular case falls.

6. The case at hearing is one where the similarities of the accounts of the complainants are really striking both in terms of how the

opportunity for abuse was set up, how the children were in effect groomed using the attraction of the computer and computer games

and then the way in which the assaults were actually perpetrated, placing the child on the knee, fondling the genitals and so on.

7. The prosecutor summarised what each complainant had to say and that summary is quite instructive and bears repeating. In the

case of DL her evidence was that the reason for visiting the home where the accused was, was to visit the mother of the accused

who used to give them tea and cakes. She goes on to refer to the fact that they were invited to play computer games. She goes on

give the fact that the door to room was closed by the accused. She refers to sitting on the accused’s lap and the fact that her

vagina was rubbed and she says underneath her underpants.

8. In the case of the complainant GD, she says that the point of contact as it were and the reason for visiting the house where the

accused was, she refers to the invitation to play computer games, she refers to the door being closed by the accuse, she refers to

sitting on his lap and she refers to her vagina being rubbed underneath her underpants.

9. In the case of RMcD, the reason for visiting the house where the accused was was to visit his parents, again she speaks of being

invited to play computer games, again she mentions the door in the room, though that was not really probed to any great extent in

her case and she refers to sitting on the appellant’s lap. But she does say that her vagina was rubbed and in her case outside of her

underpants.

10. In the case of CMcD the fourth complainant, the reason for visiting the house was to meet the accused mother and his parents,

again she refers to the tea and cakes, which was a feature of the occasion and again refers to being invited to play computer games,

again speaks of the door to the room being locked by the accused, again speaks of sitting on the appellant’s lap and again speaks of

attempts to rub her vagina, in her case under her under her underpants..

11. The court is not persuaded that the points in relation to RMcD or DL are good. In the case of RMcD, yes there is vagueness as to

the date of the offence and as to the age that she was when it occurred, but her account of how it occurred mirrors closely that of

her co-complainants. In the case of DL there is first of all the Bingo Hall issue. If the Bingo Hall stood alone, but it does not, there

might be substance in the complaint. But the evidence was that matters have the same starting point and the same starting place as

other complainants, indeed the identical starting point and identical complaints. In the case of the couch, the sexual activity is not of

such a different character that it required to be severed.

12. In the courts view the trial judge approached this issue in a careful responsible manner. The court is not at all convinced that the

exercise in subjecting the transcript to very close analysis supports the proposition that has been advanced, that he had applied the

wrong test.

13. This was a case where it was clearly appropriate that there should be a joint trial. Failing to order a joint trial or failing to permit

the evidence of the four complainants would have meant, to use the language of the case of DPP v. B.K, that the jury would not get

a full picture. This was classically a case warranting a joint trial. Indeed if this was not a case for a joint trial it is hard to conceive of

a case where such a trial would ever occur.

14. The next ground of appeal relates to a failure to discharge the jury. The circumstances in which this ground is advanced are

these. An issue arose leading to an application to discharge the jury during the evidence of complainant DL. Ms. L said that when she

went to the accused’s mother, that three people whom she referred to as G, T and M would usually be with her and others. She

stated that there would be three or four of them. She stated that she recalled CMcD being there, a cousin of the complainant GD.

She then went on to say:-

“Yes we would all go into the sitting room and he used the close the door behind us and there used to enough chairs just

for the children and there used to be no seat for him and he used to make one of us sit at the back on top him on his lap

and he used to put his hand down our pants.”

15. Then the witness spoke in some general terms and in terms which are certainly open to the implication that the appellant was

abusing all or certainly most of the children present and was doing so in rotation. Where she said:

“. . . and then he would be rubbing it for a while, but then he would slowly like move into inside my pants and just rub it

there for ages like, until you got your go on the computer and we would all switch like in a clockwise way.”

16. Further on she said:

“Like it would happen until like you would be asking for your go on the computer and he would either give to you

straightaway or he would make you wait like, ten minute or up to half an hour on his lap and then would change for the

next person. Once you got your go on the computer the next person would switch and would have to go on his lap then

again.”

17. There are a number of points to be noted. First of all these comments or observations were not led or adduced by the

prosecution. If they are to be interpreted as establishing that the witness was of the view and this seems a reasonable interpretation

that Mr. B had been abusing children other than the complainants, the question arises is what is the significance of this. DL believed

and indeed from her perspective she knew that she had been abused. It must be that she believed that her co-complainants had also

been abused. It would scarcely be surprising that she would believe that they were not the only ones. It is necessary to consider the

fact that uninvited this complainant strayed outside the terms of her statement and what the significance of that is.

18. The prosecution case was that Mr. B had abused four children. Evidence of similar activity involving other children would not have

had any significant effect. How would the jury view the accused? Well if it is the situation that DL was a credible witness, a witness

who could be relied on, then these remarks added nothing to the case. If she was an incredible witness or a witness about whose

credibility there was doubt then the fact that she was certainly on one view broadening the allegations added nothing. The trial judge

was clearly correct to reject the application to discharge the jury.

The amendment to the indictment

19. The amendment in question was one that related to the date that the offences occurred and only to the date the offences

occurred. The count, in respect of which the application was made, was count 24, which related to complainant GD. Her evidence at

trial was that the abuse occurred during the time that she was eight years old and the indictment was amended to reflect this.

20. It is as I have already indicated the situation that the amendment related only to dates and thus falls quite clearly within the

principles that have been established by cases such as Dossi an old English case going back to 1918 and the more recent case of DPP

v. Michael Anthony Walsh. What those cases say and what is clearly established is that it has long been the law that a date specified

in indictment has never been critical unless of course it relates to an essential element of the offence such as the fact of establishing

that a person is under a particular age, for example if it is a question of sexual activity without consent or something of that nature.

This was not a case where it was being suggested that there was a moment in time when the complainant and the accused would

not or could not have been in contact with each other and that the amendment was in some way undercutting a defence that was

being advanced. Nothing of this sort was an issue. In those circumstances the court is of the view that the amendment was a proper

one.

21. Another ground then relates to the failure to provide, what was described as a warning relating to the evidence of children. It is

the case that in the past, evidence given by children required cooperation but, that requirement has at the instigation of the

Oireachtas ceased to be part of our law. The critical fact here is that those who gave evidence were not, at the time they gave

evidence children. This was a question of adults giving evidence and that is sufficient to dispose of this point. Insofar as the concern

might be that they were giving evidence about matters that had occurred well in the past and that there might be doubts about the

accuracy of their recollection or their ability to deal with points of detail or anything of that nature, those were points that were

required to be dealt with and were dealt with by way of a delay warning.

22. The position therefore is that the court is satisfied that none of the grounds that have been advanced are made out and the

court will dismiss the appeal against conviction and will affirm the conviction. The court now turns to the question of sentence.

__________________________

23. The court has just dismissed the appeal against convictions and turns now to the question of the appeal against sentence. The

sentence under appeal it will be recalled was an aggregate sentence or effective sentence of eight years imprisonment. The position

is that the trial judge was called on to sentence in respect of 2 counts of sexual assault on CMcD, 1 count on RMcD, 17 counts on GD

and 2 counts on DL. The trial judge approached this by setting out to structure his sentence and he did so, in the first instance in

relation to counts 2 and 4, which related to DL imposing a sentence of two years imprisonment. The sentences in each case being

concurrent. He then turned to count 5, which related to RMcD and in that case, he imposed a sentence of two years imprisonment

but consecutive to the sentence that he had imposed to count 2. Count 6 and 7 related to CMcD and again the sentence was one of

two years imprisonment and in this instance the sentences while concurrent to each other were consecutive to count 5. In count 8,

which related to GD it was one more a sentence of two years and in this instance it was consecutive to the sentence that had been

imposed on count 7.

24. In the Circuit Court the plea in mitigation focused on the fact that there had been cooperation with the gardaí throughout the

investigation, that the appellant was the primary carer for his elderly parents and the fact that it was a matter obviously of

considerable significance that there were no previous convictions, his involvement in the community, his work record, the fact that he

had built an accountancy practice and he was set to lose that as a result of the inevitable incarceration and the fact that he was

and continued to have the support of his family who would be there for him upon release. The matter of course that was not available

to him by way of mitigation was that there had not been a plea of guilty, he had exercised his right to contest the trial and that was

his right, but it did mean that what would otherwise have been a very valuable aspect of mitigation did not feature in the case.

25. From the point of view of the perspective of the injured parties, these are obviously serious offences. But from the perspective of

society, these are very serious offences as well. The victims were very young. There was breach of trust and one has to have regard

to the systematic nature of the offender and the fact that the children were subject to grooming.

26. The appeal against sentence today really focuses on two issues. The decision of the trial judge to make the sentences

consecutive and we have sought to explain that what he did was he imposed a sentence of two years imprisonment in respect of

each of the four complainants, but each complainant was consecutive to the other complainants making the total of eight years.

Secondly it is said that the sentence that was arrived at, the aggregate sentence failed to have regard to the totality principle.

27. The court has commented on the seriousness of the offences and it is the view of the court that faced with offences of this

seriousness involving four such young injured parties at the time of the offending that the trial judge was within his rights and it was

a matter for his discretion as to whether the sentences should be consecutive and was within his rights to conclude that consecutive

sentences were appropriate. So far as the question of totality is concerned, the court has to have regard to other sentences that

have been imposed in similar cases and other cases that have been dealt with by this Court of Appeal in recent times. It seems to the

court that by reference to other sentences, that the sentences imposed in this case were somewhat out of line and indeed out of line

to such an extent that an error in principle is identified. The court therefore will proceed to set aside the sentences imposed in the

Circuit Court and to substitute the sentences that it at this point in time now regards as appropriate. In doing so the court will

maintain the structure of sentence identified by the sentencing judge. Therefore what the court will do is in respect of counts 2 and

4 in the indictment which relate to complainant DL and where a sentence of two years had been imposed by the trial judge, the court

will substitute for that figure of two years a sentence of eighteen months imprisonment. In respect of count 5 which related to RMcD

and where again the sentence of the trial judge was two years, the court will substitute a sentence of twelve months imprisonment,

but as the trial judge did, the court will make that sentence consecutive to the sentence to be served in respect of counts 2 and 4.

In respect of counts 6 and 7 where the trial judge had imposed consecutive sentences of two years imprisonment, that is to say

consecutive to count 5, the court will substitute for that sentence of two year a sentence of eighteen months imprisonment. in the

case of count 8 in the indictment which relates to GD, where the trial judge had identified two years as the appropriate sentence, the

court conscious of the fact that the abusing of this victim was the most systematic and intense of all the abuse that occurred leaves

in place the sentence of two years imprisonment. The effect of all of that is that the effective sentence of eight years imprisonment

imposed by the trial judge is now reduced to six years imprisonment. The court will go further and will suspend the final twelve months

of that sentence on condition that the accused seek an opportunity within the prison system to participate on the sex offenders

programme and if necessary that he will seek a transfer to another prison for that purpose, that he will participate in that programme,

that he will commit himself to that programme and that he will satisfactorily complete it. Subject to those conditions the final year of

what is now in effect a six year sentence will be suspended on the accused entering into a bond to keep the peace and be of good

behaviour during the balance of his time in custody and following his release from custody and of course the condition being that he

participate on the sex offenders programme that the court has referred to. It is understood that the programme is entitled the “Better

Lives Programme”.