Two recent High Court judgments on the sentencing of sex offenders will help bring clarity to this area, writes Carol Coulter, Legal Affairs Editor.
There has been much discussion of the issue of sentencing guidelines for judges, particularly in relation to serious offences like murder, manslaughter and rape. No such guidelines exist, and in our jurisdiction the principle of judicial discretion reigns supreme. However, judicial discretion is meant to be exercised in the context of certain principles. The problem for most members of the public - and many lawyers - is that they do not know what these principles are.
In two recent High Court judgments Mr Justice Peter Charleton was faced with the task of passing a sentence following a conviction for rape. The first case was relatively straightforward, in that the rape was of a young adult woman by a young man she had met in a night club, and the trial took place two and a half years after the offence.
The second case concerned the prolonged abuse of a young girl by her stepfather, the offences having taken place over 20 years ago, so the issue of delay in the case coming to trial arose.
Before his appointment to the High Court Mr Justice Charleton was a senior counsel with a long practice in criminal law, and he is also the author of an authoritative book on the subject. Before passing sentence in these cases he examined over 20 years of case law to clarify the considerations that should come into play in deciding on the sentence.
He said he was not attempting to establish guidelines for the sentencing of offenders who have been found guilty of rape, rather to place the sentence he was about to impose "within the parameters of existing law and practice". To this end he examined all the previous reported and unreported decisions of the High Court, the Supreme Court and the Court of Criminal Appeal, as well as some cases from other common law jurisdictions.
His research is likely to be of great assistance to other judges in deciding on the appropriate sentence in rape cases, and in informing lawyers defending perpetrators of what they can expect.
He stressed that rape is an extremely serious offence, justifying a custodial sentence except in the most exceptional circumstances. However, he also pointed out that the Court of Criminal Appeal had stated that a custodial sentence was not mandatory. It can only be suspended in exceptional circumstances, and while an early guilty plea could justify a reduction in sentence, it did not justify suspending it.
After reviewing all the reported cases where the sentence was suspended he summed up his conclusions: "A forgiving attitude by the victim towards the perpetrator can be a factor in sentencing, on the decided cases. It can never, however, be determinative because a crime is an attack on society and not simply a private wrong.
"Lenient sentences have been imposed in cases where the victim has consented at first to sexual intercourse and then changed her mind.
"The cases referred to above indicate that a suspended sentence can only be contemplated where the circumstances of the offence are such as to be so completely exceptional as to allow the court to approach sentencing for an offence of rape in a way that deviates so completely from the norm established by the case law."
He then quoted a seminal English case, R v Billam (1986), which laid down general guidelines for "normal" rapes. "For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case," it said. ""Where rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years."
His study of Irish cases suggested a similar attitude on the part of Irish judges. After examining 48 Irish cases where the sentences ranged between three and eight years, Mr Justice Charleton concluded: "I would suggest that the decided cases tend to indicate that where there has been a worse than usual effect on the victim, where particular violence has been used or where there are relevant previous convictions, such as convictions for violence of some kind, the perpetrator may expect to receive a sentence of eight years' imprisonment, or more if the circumstances are sufficiently bad."
Looking at 22 cases where sentences of between nine and 15 years were imposed, he found that they usually involved a number of counts, previous convictions of a similar nature, or unusual violence or humiliation. A further 22 cases attracted sentences between 15 years and life, and they concerned either an incident that lasted a considerable number of hours, gang rapes, or multiple incidents, multiple victims, or both.
In the case before him the man had denied the charge and attempted to deceive the court about what had happened, meaning he was not entitled to expect any significant discount in a sentence on the upper range of "normal". He sentenced him to seven years, but with the final 18 months suspended if he participated in a sex offenders' programme in prison.
In the case involving a number of rapes and sexual assaults of a young girl, aged between four and 12 at the time, Mr Justice Charleton concentrated on the issue of whether the delay in the case coming to trial should be taken into account in imposing sentence. Again, he examined both Irish and other common law cases for guidance.
"Many decided cases emphasise that the obligation on the court is to sentence the offender as he now is, while recognising that the conviction recorded against him declares the wrongdoing for which he must bear responsibility," he said.
"It would appear to me, having examined the relevant precedents, that where the accused has contested the charges, the ordinary tariff for elderly cases of multiple rape and sexual assault on young people by a person who is in a position of trust tends to be between seven and nine years."
He outlined a number of matters that should be taken into account in deciding a sentence in such cases. These included: examining the actual circumstances of the case as if they had occurred recently and brought before the court with minimal delay; the ordinary principles of mitigation and aggravation; the offender's conduct in the intervening years between the offence and the trial could then be taken into account (for example, if he had sought to make up for his abuse in a meaningful way); the age and health of the offender; other episodes of offending should not be taken into account, but should be the subject of separate proceedings.
In this case, where the perpetrator was in his 60s and had not offended for the past 20 years, he imposed a 10-year sentence, but with the last three years suspended if the man entered a sex offenders' programme in prison and entered a bond to be of good behaviour on his release.