MR JUSTICE Carney said yesterday that a life sentence would have been appropriate for the Dublin father who raped and sexually abused his teenage daughters over seven years. But binding decisions by the appellate courts precluded this.
The 40 year-old man pleaded guilty to 10 representative counts of rape, incest and indecent assault of his daughters now aged 21, 20 and 18 from 1989 to February 1996.
Mr Justice Carney devoted much of his comments to the legal principles on which the 15 year sentence by him was based.
The statutory maximum penalty was life imprisonment for most of the offences to which the man had pleaded guilty, he said.
Mr Justice Carney said it seemed to him that a life sentence would be appropriate in this case for the following reasons: the gravity and multiplicity of the offences involved the calculated sexual tariff exacted from the girls over a period of years in the cowardly circumstance that it only operated when the wife was out at work.
Most important was the fact it would enable release to take place only when those qualified to so decide were satisfied that the accused would no longer posed a threat that release from a life sentence is on licence which can be subject to conditions and is subject to recall and for deterrent effect, he said.
"Notwithstanding the penalties determined by Parliament, decisions of courts binding on me preclude me from imposing the maximum penalty," said Mr Justice Carney.
He said he had set out his reasons for this conclusion in detail in the following judgments: The DPP v J.D. (April 26th, 1995); the DPP v J.R. (December 5th, 1995) and latterly in the DPP v Michael Bambrick (July 26th, 1996).
He said he was bound by the 1993 decision of the Court of Criminal Appeal in the DPP v James Jackson case. In that case, counsel for the defendant submitted that the trial judge had imposed a "preventative sentence" to protect women from the applicant.
Giving judgment in the Appeal Court Mr Justice Hederman had stated: "The Court is satisfied that preventative detention is not known to our judicial system and that there is no form of imprisonment for preventative detention."
Mr Justice Hederman had said that it had been drawn to the Appeal Court's attention that the sentence had been imposed "to protect women, protect prostitutes but indeed to protect all women against the accused until such time as in humane judgment of the authorities he is fit to be released".
Mr Justice Carney said the Appeal Court ruled: "It is the view of this court that sentencing and sentencing policy is exclusively a matter for the judiciary and not, for the executive and thereafter it is for the courts to impose the appropriate sentence."
Mr Justice Carney also cited the unanimous judgment of a five member Supreme Court in the case of the DPP v G. In that case a man was jailed for life for sexually interfering with three girls aged between six and 12, two of them his nieces, on more than 409 occasions while he was babysitting.
The then Chief Justice, Mr Justice Thomas Finlay, said the trial judge had displayed extreme care and much compassion. It would have been impossible not to be struck with the concern which he showed for the possibility of further offences by the accused if and when he had finished his term of imprisonment.
Mr Justice Finlay continued: "I accept, however, that the fact the maximum sentence was imposed in a case where the trial judge unequivocally accepted the importance and genuineness of the admissions and plea of guilty does constitute an error in the application of the principles applicable to sentencing, particularly in a case of rape."
Mr Justice Finlay allowed the appeal by G and reduced the period of penal servitude imposed upon each count from life to 15 years, said Mr Justice Carney.
Imposing his sentence on the Dublin father, Mr Justice Carney said: "Accordingly, in the circumstances that the accused surrendered himself to the police, volunteered a confession, pleaded guilty and made it clear from an early stage that his daughters would not be called to give evidence, I am required to impose a determinate sentence which, as a matter of reality, will have to be less than a life sentence as it is actually served."
Mr Justice Carney said he was reiterating what he had said in the case of DPP v Michael Bambrick:
"To impose a sentence of say 30 years and claim it was a lesser sentence than life imprisonment would be both judicially dishonest and populist.
"It is my intention to sentence within known and existing parameters. The sentences being imposed within those parameters are intended to be severe and deterrent."
Mr Justice Carney said he was taking into account against the accused the following: the gravity and multiplicity of the crimes; their aggravating features and the sexual tariff operated by the accused against his daughters over a period of years; the effect of the crimes on the victims as disclosed by the victim impact reports.
In the accused's favour he was taking into account his surrender to gardai; pleas of guilty and the early indication that his daughters would not be called on to give evidence; the request of his daughters that his sentence be not too long; his forgiveness by his wife and two daughters coupled with his wife's willingness to take him back into the family home.
Mr Justice Carney said he was further taking into account in the man's favour the dicta of Mrs Justice Denham of the Supreme Court that sentence was not concerned with either retaliation or revenge; the absence of previous convictions and the expressions of remorse coupled with willingness to submit to treatment programmes.