Appeal court says determinate sentence preferable to life sentence

 

DPP -v- PS Court of Criminal AppealJudgment was delivered by Mr Justice Finnegan on January 28th, 2009. Composition of court: Mr Justice Joseph Finnegan, Mr Justice Declan Budd and Ms Justice Mary Irvine.

Judgment

The applicant was entitled to credit for an early plea of guilty, co-operation with the Garda and the early and apparently genuine expression of remorse and this justified a lesser sentence than life imprisonment.

However, account must be taken of his continuing danger to the public, meriting a significant period of post-release supervision.

Background

The applicant was convicted of rape of two boys, aged between nine and 11 and between 11 and 13 when the offences occurred, following a guilty plea to 11 sample counts. He was sentenced to life imprisonment and appealed against the severity of the sentence. The offences took place between January 2004 and August 2006.

Both victims had spent time in foster care and the applicant was a friend of the father of one of them.

The offences took place in an apartment block where PS was caretaker, at his flat and in the home of the father of one of the victims. The offences included him forcing the boys to perform sexual acts on each other and watching while he performed acts on them individually.

The abuse was accompanied by significant violence.

When the abuse came to light, the applicant wrote a letter of apology to the victims’ parents and when arrested made full admissions and expressed remorse.

He was born in 1963 and is now 45. From the age of nine until his teenage years, he was subjected to abuse and considered this to be normal. He had very little education. A report from a psychotherapist concluded that his background “created in him a distorted perception and confusion around his own sexuality”.

His low self-esteem and lack of confidence led him to form dysfunctional, unhealthy relationships throughout his life, causing him to make “very inappropriate and unacceptable choices”, leading him to sexually offend.

He had a number of previous convictions, including two for sexual assault on boys.

Evidence was given of the impact on the victims, both of whom were receiving counselling and benefiting from it, but they were likely to have problems relating to guilt and shame and in trusting others in the future, it said.

At the sentencing hearing, the trial judge identified aggravating factors in the offence, including the special position of trust in relation to the victims; their age and the fact that there were two victims; the length of time during which the offences were perpetrated; the involvement of the victims in the presence of each other, and the nature of the degradation they suffered during the rapes and attempted rapes.

Having regard to this and to the mitigating circumstances of the early guilty plea and the expressed remorse, the trial judge concluded that a 10-year sentence would be appropriate. He then considered the applicant’s history of offending.

He referred to the judgment of Mr Justice Peter Charleton in The People (Director of Public Prosecutions) -v- Drought, in which he reviewed a large number of such cases, where he concluded that a specific case fell into the small category of cases which merited a non-mandatory life sentence, due to the accused’s failure to respond to significant sentences for serious sexual offences.

In the light of this, the trial judge then imposed a life sentence on the applicant.

The applicant appealed against the life sentence.

The grounds of the appeal were that the trial judge had erred in principle in imposing the maximum sentence in the circumstances of the case and where he had entered an early guilty plea; that he should not have imposed a life sentence by reason of his previous convictions; that he attached a disproportionate weight to the previous convictions and insufficient weight to the mitigating factors, and that he failed to consider post-release supervision as an alternative to the maximum sentence.

Decision

Mr Justice Finnegan referred to the Supreme Court judgment in DPP -v- R McC and CD, which considered whether it was an error of principle for a judge not to take account of an early guilty plea and other mitigating factors, as outlined in the Criminal Justice Act 1999.

This Act provided for a maximum sentence, notwithstanding the plea of guilty, in exceptional circumstances.

The Supreme Court found that these exceptional circumstances must be identified in such a way as to make it absolutely clear why the maximum sentence is warranted.

The trial judge in this case identified the aggravating and mitigating circumstances and fixed a sentence of 10 years.

He then identified the previous record of offending as constituting special circumstances.

He was entitled to consider the applicant as a continuing danger to the public and this was a relevant factor in sentencing, according to the court.

However, the applicant was also entitled to credit for his early guilty plea, co-operation with the Garda and early and apparently genuine expressions of remorse.

“Taking all the aggravating and mitigating factors into account, the case is one which in the court’s opinion can be dealt with by a determinate sentence with a significant period of post-release supervision,” Mr Justice Finnegan said. Accordingly, the trial judge was in error in imposing a life sentence.

“Where an appropriate determinate sentence can be devised, that is preferable to a life sentence. That is not to say that a life sentence may not be appropriate given the exceptional circumstances of a case.”

The appeal was allowed and a sentence of 15 years substituted for the life sentence, with 10 years of post-release supervision. The last 2½ years of the sentence were suspended on condition that the applicant received psychological counselling.

The full judgment is on www.courts.ie


Garnet Orange BL, instructed by the chief prosecution solicitor, for the DPP; Paul Burns SC and Tara Robinson BL, instructed by Michael Hanahoe solicitors, for the appellant.