THE COURT OF APPEAL
Ryan P.
Finlay Geoghegan J.
Peart J. 87CJA/14
In the matter Section 2 of the Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
APPELLANT
Respondent
Judgment of the Court (ex tempore) delivered on the 20th day of April 2015 by Mr. Justice Peart
1. On 28th of February 2014 the respondent pleaded guilty to three counts of sexual assault and one count of attempted defilement of a child under fifteen years of age.
2. The offences in question were committed on two separate dates, the first being 26th September 2010 when two offences of sexual assault were committed on the same day but at different locations - one at the respondent’s own apartment and the other later that day at the home of the child in question. The other two offences were committed on 3rd October 2010, namely an offence of sexual assault and an offence of attempted defilement of a child under fifteen years. Both of those offences were committed in the child’s home, one in the sitting room and one in the child’s bedroom.
3. The sexual assault offences essentially consisted of the masturbation of the child who was then aged thirteen. The offence of attempted defilement consisted of the respondent’s attempt, which was resisted by the child, to insert the child’s penis into the respondent’s mouth.
4. The respondent was aged fifty two years when these offences were committed. The child, as stated, was aged only thirteen. The respondent had moved to Ireland in 2008 having apparently lived in England prior to that where he had worked as an Anglican priest for many years.
5. The injured child served as an altar boy in his local catholic church and it appears that the respondent also had an involvement at that church where he did some work on a voluntary basis. That is how he came into contact with the child. The child’s mother was also involved with the same church. It is also part of the relevant factual background that the child’s father was suffering from motor neurone disease and was confined to his bed at home.
6. The respondent managed to insinuate himself into the trust and life of this child and his mother. He befriended the child and gained his trust and friendship first of all by telling him that he was going to buy a dog and suggesting to the boy that he might like to take the dog for walks. The boy’s mother had no difficulty with this as she also trusted the respondent given his age and his involvement with the church. She brought her young son down to a local park to meet the respondent and left her son with him so that he could walk the dog and she went back home again to care for her husband.
7. As it happens the park in question was very close to the respondent’s own apartment and on 26th September 2010, having walked the dog, he persuaded the boy back to his own apartment and once in the apartment the dog was locked away and the first of these offences was committed on the boy. He then suggested to the boy that they would go out again with the dog and buy some fireworks. On the way they met the boy’s mother who was coming back to pick up her son. The boy’s mother invited the respondent back to her home for dinner that evening. That invitation was accepted, and while he was in the house and while mother was in the kitchen preparing dinner the respondent again began to masturbate the young boy while in the sitting room. However, it appears that they then went upstairs to the boy’s bedroom where they both lay down on the bed where the respondent again masturbated the boy to ejaculation.
8. The respondent then stayed for dinner and returned to his own apartment later in the evening. A week later on 3rd October 2010 the respondent was again invited back by mother to have dinner in the boy’s house. On that occasion the third sexual assault was committed, once again in the form of masturbating the child while on the couch in the sitting room, and thereafter he committed the attempted offence of defilement which has already been described, by attempting to place the boy’s penis in his mouth. That attempt was, as I have said, resisted by the child. Once again the respondent stayed for dinner, and it was only after he had left the house that the boy felt able to tell his mother about what was happening.
9. She immediately contacted the gardaí and it appears that on the following day the respondent sent a bouquet of flowers to mother, presumably by way of thanks for dinner. The gardaí interviewed the child who made a full statement. The respondent was arrested and while he co-operated to some extent he refused to make any answer to particular questions about the alleged offences.
10. While he acknowledged that he had been with the family and the child, he made no comment when pressed about the particular accusations being made against him in relation to the offences. He was interviewed on six separate occasions but he persisted throughout in making no comment in answer to the allegations. He was charged with the offences in due course.
11. He pleaded not guilty right up to the morning on which the trial was to commence. On that occasion for the first time he instructed his legal team that he was going to plead guilty. Thereafter the matter was put back for sentencing. On the sentencing date a probation report was available, as was a medical report from the respondent’s general practitioner and a victim impact statement which set forth clearly the devastating effects these offences have had on the child and also on his mother and father.
12. These offences have made the boy experience anger and self-loathing, of being dirty and used by the respondent. He has experienced feelings of guilt as well as discomfort when around older men. He has had to attend for counselling and his mother feels that the offences have caused her son a lot of problems and that the effect on the family generally has been devastating.
13. The GP report stated that the respondent suffers from a number of different cancers, renal, testicular and bowel. It appears that he suffers from depression and takes medication for that also.
14. The probation report disclosed, according to the transcript, that although the respondent in his youth was a good and successful student academically, he had himself experienced a difficult childhood and upbringing marked by violence and abuse. The report also noted that the respondent was attending counselling with the Safer Lives programme in Cork. The report indicated that the respondent was full of regret and remorse for what he has done and for the effect which his offending has had on the child in question. He accepts his full responsibility for what he did and it is accepted by the Probation Service that he has insight into his offending behaviour and empathy for his victim.
15. Indeed the respondent gave evidence at the sentencing hearing itself during which, albeit in the absence of the child and his mother who were unable to attend that day, he offered his apologies publicly and said that the child should feel no shame or guilt or any responsibility for what had occurred and that he accepted fully that he was solely to blame.
16. Before passing sentence the judge heard submissions on the respondent’s behalf and was informed by counsel for the DPP that the maximum penalty for sexual offences was fourteen years and that the maximum sentence for the attempted defilement offence was life imprisonment.
17. In her sentencing remarks the judge noted the aggravating factors in the case which were the disparity in age between the respondent and the boy, the manipulation involved by the purchase of the dog and the offer to allow the boy to walk it, the manipulation involved by the respondent having told the boy also that he loved him, the bringing of the boy into his own apartment, the insinuation of himself into the family trust, the taking advantage of the invitations to dinner, the fact that the family was vulnerable in the sense that father was ill and bed-ridden, the breach of trust that was involved in all of this offending, the attempt made to escalate the level of the offending by the attempt to have the boy insert his penis into the respondent’s mouth, and the effect of the offences on the child and his family as described in the victim impact report.
18. All of these aggravating factors were referred to by the judge during her remarks. She placed the offences at what she described as the lower end of the mid-range for such offences. She also noted the mitigating factors which she noted as being that he pleaded guilty to all four offences, noting in particular that it was particularly significant in offences of this kind because it saves the child and the family the stress of coming to court and giving evidence, and she stated that significant weight had to be given to that. Nevertheless she noted that his co-operation had been limited at interview. It was also noted that he had no previous convictions, that he had had a difficult upbringing himself and that he had given some very limited co-operation. It was also noted that he suffered from three forms of cancer, was remorseful and sorry and had insight into what he done.
19. In passing sentence, the judge stated as follows:-
“Now in respect of the three sexual counts I am going to impose a sentence of three years to run concurrently. I will suspend two and a half years of that sentence. I will set out the conditions shortly. In respect of court four, the attempted defilement, I am going to impose a sentence of four years with three and a half years suspended to run concurrently with the previous.”
20. The judge then went on to state the conditions attaching to the suspensions and those are not relevant for present purposes.
21. The DPP submits that the sentence is unduly lenient having regard to the aggravating circumstances which have already been set forth. The DPP has submitted that the sentencing judge failed to assess the seriousness of these offences and place them correctly on the scale of gravity for such offences before going on to consider the mitigating factors. In other words, the judge did not conduct the sentencing exercise by first of all deciding what the appropriate sentence was for the particular offences before making any deduction considered appropriate to take account of the mitigating factors.
22. Counsel has referred to the approach to sentencing set forth in DPP v. Dillon (Unreported, CCA, December 17th, 2003), and in his written submissions has referred to the summary of the sentencing exercise as explained by Prof. O’Malley in his book on Sentencing where he states that:-
“A court must not begin by positing a tariff for the type of offence before it. It should instead determine where the particular offence lies on the overall scale of gravity, having regard to the standard indicia of seriousness. It should then decide on an appropriate tariff, disregarding for the moment any mitigating factors. Finally, of course, it must consider any such factors that may be present and give due credit for them, thereby reducing the sentence that would otherwise have been appropriate. This approach must be followed in the sentencing of all offences.”
23. Secondly, the DPP has submitted that the principal error in the sentencing in the case is the fact that so much of the sentences were suspended, resulting in a period of just six months being served for the offences, which are submitted to be very serious for the reasons already stated.
24. While it is accepted by the DPP that the offences may not be of the most serious kind in the range of such offences, nevertheless the context in which they were committed, the manner and locations of the offences, and the further act of attempted defilement should have placed the offending at a higher point on the scale than was done by the judge when she placed the offences at the lower end of the mid range.
25. In support of that submission counsel has referred to the aggravating factors which I have already set forth such as the serious breach of trust, the pre-meditation and planning, the fact that three of the offences were committed in the victim’s own home, and the impact of the offences upon him.
26. Thirdly, it has been submitted that while the judge may not have fallen into error by identifying four years as the appropriate sentence for the defilement offence and three years as being appropriate for the offences of sexual assault, she erred in suspending all but six months of these sentences, since there were no exceptional circumstances which could justify such leniency.
27. In this regard counsel has referred to DPP v. McGinty [2006] IECCA.37, where the test for the imposition of an entirely suspended sentence is stated thus:-
“Where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interests of justice. This is a combination of factors which could only arrive in the rarest of cases.”
28. Counsel for the appellant has submitted that this passage ought not to be regarded by this Court as the appropriate test in this case because, as he rightly says, McGinty was a s. 15A drugs case and that it would therefore be too high a test for this court to apply.
29. The DPP submits in any event that the test is not met albeit that in the present case the sentence is not suspended in its entirety. It is submitted that there was nothing of any strength and substance by way of mitigation in the case that is not already adequately reflected in the three year sentences and four year sentence themselves, and certainly nothing approaching special reasons of a substantial nature and of a wholly exceptional nature to justify the length of the suspension.
30. The respondent has submitted that insofar as the DPP has submitted that the judge erred in principle in the sentence imposed, that is not the test required by s. 2 of the 1993 Act and that what the DPP must show is that the sentence was unduly lenient, and refers to the four principles which should be had regard to in the discharge of that onus on the DPP as stated in DPP v. Byrne [1995] 1 I.L.R.M. 279.
31. He has referred also to the judgment of Barron J. in People (DPP) v. McCormack [2000] 4 I.R. 356and it has been submitted that the sentencing judge carefully set out and considered all the aggravating and mitigating factors before deciding upon the appropriate sentence.
32. It is submitted that it is clear from pp.16 to 19 of the transcript that the sentencing judge took account of all the aggravating factors to which she referred in detail, and of all the material circumstances, including the particular circumstances relating to this particular offender, and arrived at a proportionate sentence in all those circumstances.
33. Counsel has noted that the DPP does not appear to have taken issue with the length of the three and four year sentences per se, but rather the length of the suspension applied to those sentences, and in relation to this the respondent submits firstly that there is no absolute requirement to impose an immediate custodial sentence at all in the absence of a mandatory statutory requirement in that regard; and secondly, that although the sentence is significantly suspended it is nevertheless a sentence of three years and four years respectively and should a six month sentence because the conditions of suspension hang over the respondent for the period of the suspension, and the breach of any such conditions may result in him having to re-enter custody to serve the remaining part of the sentences.
34. Insofar as the DPP submitted that the principal mitigating factor was the plea of guilty and that not much credit ought to be given to that given the lateness of the plea as well as the respondent’s medical condition, the respondent has submitted that the mitigating factors taken cumulatively amount to more than is suggested by the DPP, and in that regard it is submitted that the judge was entitled to have regard to the explanation for the lateness of the plea as explained by counsel to the judge during the sentencing hearing. That explanation was that the respondent through no fault of his own had had to change his legal team because his solicitor was not in a position to continue to act, and therefore was not represented again by solicitor and counsel for some time - in fact not until the trial date itself, and that new counsel had met the respondent for the first time on the morning of the trial and that the respondent had immediately instructed counsel that he wished to plead guilty to the offences.
35. In such circumstances it is submitted that the respondent should not lose the credit that an early plea would normally attract, and that the judge was entitled to exercise her discretion in that regard and regard the plea as a significant factor in mitigation, as she did.
36. Counsel has referred also specifically to the other mitigating factors which were before the judge, namely the respondent’s own problematic upbringing, his being deemed by the probation service to be suitable for probation supervision, his medical conditions, his regret and remorse and his insight, and the fact that he has no previous convictions. It is submitted that the respondent’s medical conditions in particular would make him a poor candidate for a custodial sentence.
37. The court has noted the DPP’s acceptance that the sentences of three years for the sexual assault and the four years for defilement are not in themselves unduly lenient and that her focus is confined to the suspension of these sentences for all but six months.
38. It can be seen from the sentencing remarks of the judge that she considered the gravity of these offences, including the aggravating factors. Her exposition in that regard is clear from the transcript which this Court has seen. Having stated that the offences were in her opinion at the lower end of the mid range, she decided that the appropriate sentence for sexual assault was three years and for the defilement offence, four.
39. If there were no mitigating factors to be considered that would be an end of the matter and there could be no criticism by the DPP that such sentences were so erroneous in principle that they should be set aside on the grounds of undue leniency. Another judge may have considered imposing a longer sentence but it could not be contended that the sentences were so out of kilter with sentences imposed for similar offences that they would be set aside on grounds of undue leniency.
40. Therefore this Court must consider whether excessive credit was given for the mitigating factors and whether by suspending all but six months of each sentence, the sentence became in its totality unduly lenient.
41. There were a number of mitigating factors to be taken into account after arriving at the sentence. There was the plea of guilty. There was the fact that he had no previous convictions. There was his engagement with the Probation Services and his attendance at the Safer Lives programme which, in his own evidence, he indicated had made him see his own culpability and gave him insight into his offending. There is also his medical condition which has been described, and the problems that he experienced in his own upbringing.
42. One way that these mitigating factors could be considered and taken into account would be to have reduced the length of the sentences themselves from what the gravity of the offences, taking into account all the aggravating factors, might have attracted, and impose a lesser sentence, including perhaps a much shorter element of suspension. Another way would be, as the sentencing judge did, was to suspend a period of the sentence.
43. This court is satisfied that there was an error in principle in suspending two and a half years of the three sentences and three and a half years of the four year sentence. In this Court’s view there was an inadequate basis for suspending such a lengthy portion of each sentence. That is not helped in the Court’s view by the fact that the sentencing judge has not explained in her own sentencing remarks precisely how such lengthy periods of suspension were justified. In this Court’s view the sentence is unduly lenient as a result of the unwarranted length of suspension, and the Court will proceed therefore to a re-sentencing hearing as soon as possible.
