Patrick O'Brien, who was jailed for raping his daughter Fiona Doyle, cannot be treated as a person for whom a prison sentence would be impossible to tolerate, the Court of Appeal has stated.
The 75-year-old had pleaded guilty at the Central Criminal Court to 16 sample charges of rape and indecent assault committed against Ms Doyle at Mackintosh Park, Pottery Road in Dún Laoghaire between 1973 and 1982.
Trial judge Mr Justice Paul Carney had described it as one of the worst cases of abuse one could possibly find.
Mr Justice Carney, taking into account O’Brien’s health problems, sentenced him to 12 years in prison, suspended the final nine and granted him continuing bail pending an appeal. Bail was rescinded a few days later, the court heard.
Last month, the Court of Appeal found O’Brien’s sentence was unduly lenient.
In a judgment outlining its reasons for reaching that decision, President of the Court of Appeal Mr Justice Seán Ryan stated there was no rule which prevents those who are ill from being sent to prison.
O’Brien is and has been suffering from a number of serious illnesses with painful and unpleasant symptoms and with significant disabilities, Mr Justice Ryan said. “But the evidence before the trial court was that he would be as well-treated in prison as in the community.”
Therefore, he said, the point is that O’Brien is entitled to such mitigation as his health condition warrants. “He cannot be treated as a person for whom a prison sentence would be impossible to tolerate,” the judge said.
His illness is persistent, causing pain, discomfort and disability but it was “not worse for being in prison rather than living in the community,” the judgment added. “Similarly, advanced age is relevant but not in any way a bar to a custodial penalty.”
Frances Nagle O’Connor, of the Irish Prison Service, had given evidence that prison authorities would be able to deal with the list of ailments from which the respondent was suffering, the judgment stated.
Under cross examination, Ms Nagle O’Connor was clear the care provided by the Prison Service would match that which could be provided in the community. She had pointed out that the previous week a person in prison had had a major heart attack and was very successfully treated within the prison setting.
It was clear Mr Justice Carney had located the level of offending at the highest possible category “and this court endorses that view”, the judgement said.
O’Brien’s 12-year sentence was “entirely unobjectionable and indeed a more severe sentence could hardly have been considered inappropriate”.
It said it was clear Mr Justice Carney was “extremely uneasy” about the allowance that he ought to make for O’Brien’s medical conditions. “He said so on a number of occasions.”
However, the approach adopted by Mr Justice Carney was “an error in principle” and the sentence, “insofar as it directed the suspension of nine years, was unduly lenient,” said Mr Justice Ryan, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon.
“The torture that the child suffered is truly shocking,” the judgment stated.
The abuse began on the night before Ms Doyle made her first Holy Communion in 1973 when O’Brien had sexual intercourse with her. She was seven years old.
Over the next nine years the abuse continued regularly.
The mother would go out at night and to play bingo leaving her daughter at home with O’Brien who raped and indecently assaulted her. It was a nightly occurrence for him to rape her while watching television and the other children were in bed.
The assaults were not confined to the family home and took place in other locations, such as in woods or a car park or in the home of a family friend. O’Brien would collect his daughter from school at lunchtime and bring her home to rape her while the mother was out at work.
The abuse included various categories of rape.
Ms Doyle required hospital treatment when she was aged 12 which was “unfortunately” not recognised by the hospital as an indication of sexual activity. She was beaten and lived in a culture of fear.
The family decided to relocate to England in 1982 but she was made to stay in Ireland with O’Brien, who and continued to rape Ms Doyle nightly. The abuse continued until she was 16 years of age.
Ms Doyle read a powerful victim impact statement into the court. The described the terrible trauma that she underwent at the hands of her father and her feelings of despair and how she believed that she deserved everything she got.
She felt she was a helpless pawn in an evil marriage, had attempted suicide on two occasions, one of them requiring intensive care, and her capacity for forming human relationships was destroyed.
She has described relief to a degree by the court process and the fact that she had been vindicated.
Counsel for O’Brien, Mary Rose Gearty SC, had submitted to Mr Justice Carney that her client was of infirm health and advanced age.
Ms Gearty said O’Brien’s list of ailments included arthritis, he wears a morphine patch all the time and he falls regularly, sometimes twice or three times a week.
He was suffering at the time of sentence from cracked or broken ribs due to the most recent fall and had been hospitalised as recently as the previous week.
He had a heart condition, obstructive airway and lung problems, he remained indoors and only left home by ambulance or private car when there was an emergency.
Ms Gearty mentioned gastritis, hernia and other matters. His diet was necessarily limited, he was being treated for heart disease and he had difficulties with emphysema in addition to the arthritis already mentioned. O’Brien requires oxygen and has a tank that is switched on overnight.
The Court of Appeal will hold a hearing next Monday to determine O’Brien’s new sentence.
Speaking outside the court, Ms Doyle said her father’s “age and health weren’t an issue when he was abusing me and it should not be an issue now”.