DPP -v- P O'C Court of Criminal AppealJudgment was given on November 5th this year by Ms Justice Susan Denham, sitting with Ms Justice Elizabeth Dunne and Mr Justice John Mac Menamin
Judgment
The trial judge was correct in imposing a three-year sentence on a former primary school teacher who pleaded guilty to a sexual assault on an 11-year-old girl, but in the special circumstances of the case, 12 months of the sentence should be suspended with a provision for probation supervision.
Background
There was a complex history to this case. The appellant had been charged in 1998 with indecent assault on five complainants, all pupils in the primary school where he was a teacher, over a four-year period in the early 1980s.
He sought the severance of the charges, with separate trials in relation to the complaints of the girls, known as A, B, C, D and E. This case related to the case of E.
He was acquitted in the trial concerning complainant A, which took place in 2000. The jury was discharged in relation to the trial concerning complainant B and a new trial listed for May 2000. The trial relating to complainant C took place in March that year and resulted in conviction and a four-year sentence.
In the meantime the trial relating to B took place as planned and the appellant was again convicted and sentenced to four years, with one suspended.
As he was already serving a sentence, this meant that in effect this sentence ran concurrently with the previous sentence. The appellant was released from prison on completion of these sentences.
The indictment in relation to complainant D was quashed on direction of the trial judge.
The final trial, relating to E, was due to take place in June 2002 but no judge was available and it was relisted for January 2004. The appellant took judicial review proceedings to prohibit the trial on the grounds of delay, succeeding in the High Court in 2005, but this decision was overturned by the Supreme Court in March 2008.
In October that year he was arraigned on the charge relating to E and he pleaded guilty, and was sentenced in February 2009 to three years imprisonment.
He claimed that the judge erred in principle in imposing a consecutive sentence and that his counsel said it had been the practice to impose concurrent sentences where the offences were committed against several victims.
Quoting remarks from the trial judge that the judicial review proceedings had meant the matter was “hanging over the victim” for a number of years, he said the trial judge had erred in visiting delay caused by judicial review on the appellant when imposing sentence.
Counsel for the Director of Public Prosecutions said there was a fundamental fallacy in the appellant’s case in claiming that this sentence equated to a consecutive sentence and effectively arguing that he should not receive any term of imprisonment for this offence.
He wrongly assumed that had he pleaded guilty to the offence against E at either the sentencing for the offences against B or C, the sentence imposed then would have remained the same.
Had this happened, the judge would have been dealing with a person who had been found guilty of sexual offences against three young girls, all pupils in the school where he was a teacher. It could not be assumed that he would have limited the sentence to four years in these circumstances.
Ms Justice Denham pointed out that there was no statutory law relating to consecutive or concurrent sentences relevant to the case. It was a matter of common law.
Decision
In this case, the maximum sentence for the offence was 10 years. This particular offence fell neither at the top nor the bottom on the scale, but in the lower middle and a four-year sentence was an approximate potential sentence.
In this case there was a plea, but it came very late. It did not come in 1999, at the time of the original indictment, and the victim had had to endure almost 10 years anticipation of the trial.
The appellant took tactical decisions in relation to his trials, including severing the five indictments and taking judicial review proceedings. While these decisions were not aggravating factors, they meant that all offences were not tried in 1999 or 2000. This meant that all the counts were not tried together.
Had they been, it could not be assumed that the judge would have sentenced the appellant to four years.
The situation would have been of a teacher assaulting a number of his pupils, as opposed to one, in his school. If there were a series of assaults and a number of pupils these were relevant factors in sentencing. It was also relevant whether the offender had been in a position of trust, as the appellant was.
The fallacy in his case was to assume that if all the offences had been tried together, he would have received in effect a total sentence amounting to four years. The court did not accept his submission that because he received a four-year sentence in relation to complainant B and what was in effect a concurrent sentence in relation to complainant C, that he should received no sentence in relation to complainant E.
The court was satisfied that, given the very late plea of guilty, a three-year sentence was appropriate.
Referring to the probation report, Ms Justice Denham said that while he had poor insight into the reasons for his sexual offending, he was considered a low risk for reoffending, providing certain factors remained stable.
There was no error in principle on the part of the trial judge but, given the unique history of this case, Ms Justice Denham said the court was satisfied a portion of the sentence should be suspended and suspended the final 12 months.
The full judgment is on www.courts.ie
Peter Finlay SC and Simon Kearns BL, instructed by Higgins Chambers O’Flanagan, Headford, Co Galway, for the appellant; Gerard Clarke SC and Melanie Greally BL, instructed by the Chief Prosecution Solicitor, for the DPP.