COURT OF CRIMINAL APPEAL 

Application for leave to appeal against conviction and sentence

Fennelly J.

Budd J.

O'Higgins

145/07

The People at the Suit of the Director of Public Prosecutions

V

Anthony Ward

Applicant

Judgment of the Court (ex tempore) delivered on the 25th day of July 2008 by Fennelly J.
This has become an appeal which is limited to an application for leave to appeal against severity of sentence. Mr. O'Carroll on behalf of the applicant is absolutely right, the court would have to say. He explained to the applicant that the grounds of appeal against conviction were not maintainable because this was essentially a credibility matter whether the jury believed the complainant beyond reasonable doubt. This court cannot usurp the jury function and Mr. O'Carroll very constructively, so far as the court is concerned, and also so far as his client is concerned, ensured that the only matter now outstanding is the question of severity of sentence. Mr. O'Carroll in that respect made a very eloquent plea to the court under seven headings. These can be summarised very briefly, firstly as was obvious that this is a very old case and it is established in the case law of that court that that is something which weighs on the balance that another matter that classically weighs on the balance that the applicant is a man with no previous convictions and in this context no previous convictions also means no subsequent convictions. He is a man of very good character. Thirdly that his own character and reputation have been destroyed because of the waiver by the complainant that the anonymity of which she was entitled as a matter of law but equally which she was perfectly entitled to waive because the anonymity was there to protect her and not him. Fourthly that he lost his employment because once the complaint was made his employer let him go that he is registered under the Sex Offenders Act which of course is a stigma in itself though and the court

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would have to say that that's not something that should be regarded as a mitigating factor it is a penalty imposed by the legislation. Also that he is now 51 years of age, when he was in his mid twenties at the time of the offences and as is reasonably clear that re-offending is most unlikely. All of those are quite proper points to make and they carry some weight. There is no doubt about that. Mr. O'Carroll goes on to make the point that the learned trial judge erred in law in the sentences he imposed not in the quantum or length of the sentence but in making them consecutive. That really is the significant point, because in the end of the day, accepting as this court must, that the jury has found the applicant guilty of these three offences, there are different characteristics of the facts but there is one of the offences which is the second one in time, which was a very serious sexual assault. So far as the court is concerned it would have warranted a sentence of several years and not just the one year and it is probable that that is what the learned judge was thinking of in balancing, in his mind, against the total quantum that he would have imposed for one as distinct from the total quantum imposed by way of three consecutive sentences of one year. In the overall the judge balanced that correctly and the court is satisfied that he did not make any error in principle and it has to dismiss the application for leave to appeal.