Irish Court of Appeal

1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993, to review the sentence imposed on the respondent by the Central Criminal Court on the 24th April, 2013. On the 30th January, 2013, the respondent pleaded guilty to an offence of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001. The sentence hearing took place on the 23rd April, 2013, at the Central Criminal Court. On the 24th April, 2013, the court imposed a sentence of five years suspended in its entirety on the respondent entering into a bond in the sum of €1,000 to be of good behaviour for a period of five years and to maintain contact with the Probation Services in accordance with the standard conditions and ordered that the respondent’s name be placed on the sex offenders register for a period of five years. On the 15th May, 2013, the Director applied to the learned trial judge to have the respondent’s name removed from that register on the ground that such registration was not permissible in circumstances where there was no deprivation of liberty and the complainant was over seventeen years of age and the court acceded to the application.

2. The incident giving rise to the charge happened on the 27th October, 2005, in the bedroom of a house in Waterford City, which was shared by the injured party, Ms A, another young woman, Ms B, and the respondent. Ms A was aged 18 at the time and the respondent was aged 30. They had been on a night out socialising in Waterford and at various venues where a large amount of alcohol was consumed by all three. Some dispute had arisen between Ms B and the respondent during the course of the evening and when the party got back to the house, he went up to her room to apologise and while he was there on the bed with Ms B in her room, the injured party Ms A joined them. The three ended up in bed and asleep although fully clothed. The respondent was in the middle between the two girls. Some time later, the injured party woke up and found that the respondent was on top of her, moving up and down with his hands at either side of her head on the pillow and she was not wearing any clothes from the waist down, although she had been fully clothed when she fell asleep. The prosecution’s evidence was that the respondent’s penis had been in proximity of the injured party’s vagina. Although the respondent had ejaculated, there had not been penetration of the injured party’s vagina.

3. The evidence was that Ms B had left the room, but there was a difference in the statements as to when that had happened. This was an issue that came to be considered during the course of the sentence hearing.

4. It is unnecessary to describe the full details of subsequent events, but some facts should be noted. The injured party complained to Ms B about what had happened to her. On the evening of the 27th October three men came to the house and beat up the respondent. This assault was of some severity, because it prevented the respondent from going to work on the following day and it also caused the landlord of the house to make a complaint to the Gardaí which resulted in their visiting the house, following which the injured party made her complaint.

5. The respondent was arrested and detained pursuant to s. 4 of the Criminal Justice Act 1984. He denied sexual intercourse with the injured party. Forensic evidence was obtained from the injured party’s underwear and when it was subsequently tested, it matched the respondent’s DNA.

6. The respondent emigrated to the United States in February 2006, at a time when he had not been charged with an offence and he remained there until he was deported because of visa issues in December 2009. He was re-arrested on the 21st March, 2011, and the forensic evidence was put to him, but he continued to deny any sexual contact and suggested that the forensic match might have come from a toilet seat.

7. The investigating Garda, Garda McDonald, gave evidence that the respondent was at the time of the sentencing hearing 37 years old and was employed in the horse trade in Ireland. He had two previous convictions in this jurisdiction for public order offences and four previous convictions in the United Kingdom between 1998 and 2001: one for criminal damage, two offences of common assault and an offence of harassment. He had no previous convictions similar to this offence. Since his return from the United States he had not come to adverse Garda attention.

8. Garda McDonald was cross examined by counsel for the respondent and this is of considerable materiality to the issues that arise in this application. The relevant points were helpfully summarised in the submissions of the respondent as follows:-

• All persons involved had consumed a “considerable amount of alcohol” on the night in question.

• There were material inconsistencies between Ms B’s account of events and the Injured Party’s account in the lead up to each of them getting into the same bed.

• Further inconsistencies appear in respect of Ms B’s presence in the bed at the time of the offence.

• A technical issue in respect of the admissibility of DNA evidence against the respondent was capable of being raised by the respondent had the matter proceeded to hearing.

• The respondent was not arrested for the purpose of charge until the 13th October, 2011.

• It was accepted the respondent was quite shocked to be charged at such a remove date from the allegation itself.

• The plea of guilty was of assistance to the prosecution.

“Q. And I think that whilst it has been indicated that the complaint or the injured party was proceeded up the stairs by [the respondent] who went up to apologise to[Ms B], I think there were aspects of the evidence which would have been inconsistent vis-à-vis [Ms B] and the injured party? Would you agree with that?

A. Yes, Judge.

Q. And I think one of those instances would have been, for example, that in fact, [Ms B] states that . . . the injured party, was with her when [the respondent]as called into the room by the injured party?

A. Yes, Judge.

Q. And I think there is various other matters of that type of inconsistency which my client could have instructed me to put to the jury if the matter had proceeded to trial, such that the injured party indicated that [Ms B] was not in the bed when this event occurred; however, [Ms B] in her statement indicated that she was woke, that the bed was moving and that she then heard Mr. Cunningham snoring and she left the room?

A. Yes, Judge.”

“What this man done to me when I was a young, pregnant naïve girl is an absolute disgrace, and hatred is not a strong enough word to describe how I feel towards him. He changed who I am and who I was going to be. Over the years I have been trying to build myself back up, trying to regain my confidence and self worth with the help of [her partner] and my family. I would like to acknowledge Waterford Garda station, especially Garda Kevin McDonald for all the hard work and dedication over the years. Today I hope justice is served so I can move on from this in the best possible way I can.”

12. The respondent’s sister gave evidence in which she said that it was not in his character to do anything like the incident the subject of the charge. She said that since the case happened, he had fallen down a lot, had gone into himself and had become very depressed, “a few times he tried to commit suicide”. She said that “he is very sorry for what happened and he doesn’t - he didn’t want any grief for anybody, and he feels like he has shamed the family”.

13. Counsel for the respondent handed into the court “a letter of remorse” in which she said that the respondent “clearly expresses there that he takes responsibility that he is very remorseful and he apologises for all the difficulties that have come about as a result of this particular matter”. Counsel also referred to the fact that in the Probation Report, it was indicated that the respondent had no recollection of any sexual activity. The report concluded that the respondent was at low risk of re-offending.

During the course of counsel’s plea in mitigation, the judge remarked that

“The injured party herself has described herself as being very naïve, and I think that’s putting it on the - well, I would say, I might take a different view that it was more than very naïve, that it might have been extremely naïve, but it is not a matter where I propose in any way to have it influence my sentence in this matter.”

“are at variance with the statement that was made by [Ms A] to the Garda Síochána and to the fact that Garda McDonald has accepted, under cross examination, that there were circumstances of potential conflict in the prosecution as between the testimony, if testimony were to be given by Ms A, and the testimony, if testimony were to be given by [Ms B].”

“But in the circumstances that prevailed, and in the circumstances of where there is, as I say, an acceptance on the part of the prosecution that there was potential for conflict, I must take the more benign view of the facts of this case and I must approach it in circumstances where at the time this incident occurred, it was not a situation where there were but two in the bed, but where there were three in the bed.”

17. The accused man found himself in court many years after the incident through no fault of his own. The judge referred to the retaliatory beating that the respondent had suffered.

18. The learned trial judge referred to the victim impact report and his request for it to be redacted and said that he had been in no way influenced “by what I perceive to have been an attempt to influence me in my decision, and equally I have not reacted adversely towards [Ms A] as a result of that perceived attempt to influence my sentence”. He said it went without saying that the victim of a sexual offence was going to suffer traumatically but, having said that, he was concerned in this case that he did not have any objective account, “having regard to, as I say, the potential conflict that existed in the evidence in this case and to the great discrepancy as between the facts outlined to this Court and the facts set out in the statement that the complainant made to An Garda Síochána”.

19. The judge noted that alcohol had seemed to play at part in this particular offence and in a number of the respondent’s previous convictions.

20. The learned trial judge went on to consider whether he could take what he acknowledged was the exceptional step of imposing a suspended sentence. It was clear, he said, that the respondent was genuinely remorseful for what occurred and he noted that he was at low risk of re-offending.

21. In those circumstances, the learned trial judge imposed the sentence of five years imprisonment suspended on condition that the respondent acknowledged himself bound to the people of Ireland in the sum of €1,000, the condition being that he would keep the peace and be of good behaviour for a period of five years, that he would keep supervision appointments with the probation officer and comply with his directions in relation to substance abuse and attend for assessment and treatment as directed.

22. In further and final exchanges with counsel on that occasion the learned trial judge observed that the fact that the respondent would be on the sex offenders register was itself a punishment and recognised being by the court as such. That registration was subsequently removed as recorded above.

The grounds for the application.
23. The applicant submits that the learned trial judge was in error in saying that the fact that the respondent was to be on the sex offenders register was an additional punishment and that this view that he expressed was by implication part of his rational in deciding on a suspended sentence. However, the respondent’s submissions point out that the comment by the judge came subsequent to the imposition of sentence and did not form part of his rational for the suspension. In the view of this Court, the comment by the learned trial judge was not apparently part of his reasoning for deciding on a suspended sentence and it is unnecessary to comment further on the question whether it is proper or reasonable to consider registration as a discrete punishment.

24. Grounds 2 and 3 refer to the learned trial judge’s reference to the book of evidence contents and to matters of potential conflict and discrepancy. It is submitted that if there was any issue of fact arising that was relevant to the sentence issue that could have been dealt with during the oral evidence on the 23rd April. The Director submits that any such inconsistencies as existed “were irrelevant to the sentence hearing other than to validate the defence point that there was some saving to the State by way of a guilty plea”. There was a plea of guilty to the offence of sexual assault, perpetrated on the injured party while she slept and it was submitted that there was an error in principle by the learned sentencing judge in seeking to highlight potential conflict and/or discrepancy by way of mitigation in those circumstances. The learned trial judge was not permitted to look elsewhere for material and there was no basis for his decision to take a benign view.

25. The respondent submitted in respect of these grounds that the learned trial judge was entitled to consider that there was potential for conflict of evidence. He was also entitled to adopt the view most favourable to the accused unless the prosecution had proved the contrary beyond a reasonable doubt. Such inconsistencies as the judge noted highlighted the value of the plea of guilty.

26. The Director submits that it was irrelevant to the sentence that the judge imposed, whether there were two people or three people in the bed.

27. These grounds require further consideration below.

28. The fourth ground advanced by the Director for challenging the sentence is based on the references by the learned trial judge to the naivety of the complainant. The judge drew a distinction in a manner that was implicitly critical of the victim between being very naïve and being exceptionally naïve but did not offer any further explanation or interpretation. However, since the judge declared that the naivety of the complainant was not something that he was taking into account, this Court will not further consider it as material to this application.

29. The same conclusion has to be reached in regard to the comments by the learned trial judge about the victim impact statement. The purpose of such a statement is for the victim to inform the court of the effects that the crime has had on her. It would be legitimate to object to extraneous material in a victim impact statement, including a proposal as to sentence on the ground that it was not within the statutory function of such process. This Court is unable to agree with the judge’s interpretation of the statement by the victim that she sought justice so that she could move on with her life. The court is of the view that the judge was too ready to infer an attempt to pressurise him. Having said that, here again the judge said that he was not taking any criticism of the statement into account.

30. Ground 6 challenges the learned trial judge’s finding that the respondent had genuine remorse. The applicant relies on the statement in the report of the clinical psychologist Mr. O’Keeffe that the respondent did not recall sexual activity on the occasion. However, the trial judge had the evidence of the accused’s sister and he also had what was described as a letter of remorse that was handed in by counsel for the respondent, which this Court has not seen. Taken with the plea of guilty, the Court considers that the learned trial judge had sufficient information on which to base a finding that the respondent was remorseful, although it might have been more satisfactory if he had engaged in a fuller discussion of this question, but the fundamental point is that there was a rational basis for the conclusion.

31. Ground No. 7 is that the trial judge erred in principle in giving insufficient weight to certain features of the offence and to the fact that the victim suffered severe psychological sequelae. The judge expressed himself as finding it relevant to the victim’s psychological trauma that there was potential conflict in the case. This might have implied unreliability on the part of the complaint but that was not a finding made by the learned trial judge nor would it have been justified or legitimate and it would have been inconsistent with the respondent’s plea of guilty.

32. Finally it is submitted that the trial judge was in error in suspending the sentence in the absence of the most exceptional of circumstances and that in present case there was an absence of such circumstances.

33. The respondent argues that there were indeed quite exceptional circumstances present as follows:-

(a) The judge accepted that the plea of guilty was an early plea.

(b) The respondent was at low risk of re-offending.

(c) The offence was at the higher end of the lower scale as the judge found.

(d) The respondent had not come to adverse Garda attention in eight years since the offence.

(e) The delay was not attributable to any fault of the respondent

(f) Genuine remorse.

(g) Potential for conflict if the matter proceeded to trial.

34. The learned trial judge accepted that it would be exceptional to impose a non- custodial sentence.

"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(3) On such an application, the Court may either -

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application."

1. The onus of proof to show that the sentence was ‘unduly lenient’ rests on the Director of Public Prosecutions

2. Great weight should be afforded to the trial judge’s reasons for imposing the sentence at issue. In particular, if the trial judge has kept a balance between the circumstances of the case and the relevant circumstances of the offender the decision should not be disturbed.

3. The test is not the converse of that when there is an appeal by an appellant; it is not a query as to whether a more severe sentence could have been imposed and upheld as being right in principle. Rather, it is an inquiry as to whether the sentence was ‘unduly lenient’.

4. Nothing but a substantial departure from what would be regarded as the appropriate sentence would justify intervention.

"In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle.

The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependant upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered."

Discussion
39. The Court has earlier disposed of some of the applicant’s grounds. The principal remaining complaints made by the applicant are first that the learned trial judge took into account matters that were irrelevant to the nature of the crime and to the accused and the sentence was erroneously arrived at in those circumstances which constitute an error of principle. He found a potential zone of conflict in the evidence and an area of discrepancy between the evidence and the contents of the book of evidence and as a result he found that he could take a benign or a more benign view of the circumstances than might otherwise have been warranted. The Director’s case is that there was no basis for reducing the seriousness of the crime on any such ground or to take those things into account in circumstances where the accused man had pleaded guilty to sexual assault.

40. Secondly, the Director submitted that it was incumbent on the Court to seek to resolve areas of material dispute rather than simply to identify them or for the trial judge to discover them for himself by analysis of the book of evidence. If there was inconsistency that was relevant to the sentence and which could have been cleared up in evidence, the judge should have identified such issues and entertained discussion as to the means by which it might be resolved. If it transpired that the judge was ultimately left uncertain as to the position, obviously he had to take the more favourable view of the matter from the accused’s point of view.

41. The respondent pleaded guilty to sexual assault of the complainant. He had a choice whether to plead guilty or not guilty. If he chose the latter course, he would through his counsel have been able to challenge all of the evidence put forward by the prosecution and to exploit any inconsistencies in the oral or documentary evidence. He would have been able to dispute the validity of the Garda interviews and of the collection of the forensic evidence that led to the DNA match. He would, in a word, have been able to contest each and every feature of the prosecution case. But he did not do that and instead elected to plead guilty to sexual assault.

42. It was open to the respondent in those circumstances on the sentence hearing to make the case that he had put in an early plea of guilty and the learned trial judge accepted that. The trial judge was entitled to reach that conclusion. The respondent was able to argue that his plea was in ease of the prosecution. It spared the victim the distressing ordeal of testifying and being cross-examined on matters of intimate, personal detail. Those were legitimate matters of mitigation.

43. On the question of discrepancy mitigation, it seems to the Court that whether there were two girls and the respondent in the bed at the time when the assault took place or only one girl does not actually amount to a matter of mitigation. There is no choice to be made in those circumstances as to a more heinous understanding of the crime and a less serious one. Admittedly, if they case went to trial, the accused man would no doubt have sought to exploit the difference in account if that is how it transpired, in order to suggest unreliability on the part of the complainant and/or the other witness. But those are not matters that mitigate the crime.

44. Similarly, the fact that DNA evidence might actually be challengeable is a decision for the accused and his advisers. Whether it is or is not does not constitute mitigation of the seriousness of the crime.

45. In so far as potential weakness in the prosecution case is of any relevance, it is not to mitigate the offence but rather to establish that the guilty plea has value. There is, however, a limit to the mitigation to be allowed for the possibility of acquittal in a hypothetical trial on the mere assertion of discrepancies in statements of evidence. The sentencing court is also entitled to consider whether the exploration of the prosecution evidence undermines the remorse implicit in acknowledgment of guilt.

46. The learned trial judge took into account the substantial relevant elements of mitigation. They included the early plea as the judge had concluded, his decision that the offending was at the lower end of the mid scale or the higher end of the lower scale; he noted that the respondent had been beaten up after the incident when some persons meted out rough justice and he held that the respondent was genuinely remorseful.

47. It was unfortunate that the sentence hearing in this case somehow segued from consideration of the gravity of the crime and legitimate matters of mitigation into an exploration of potential conflict between the victim of the assault and other witnesses in respect of matters that were substantially irrelevant to the sentence. The sentence hearing was not sufficiently sensitive to the rights of the victim but that is not the issue to be decided by this Court, which is the claim of undue leniency in the sentence passed on the respondent. The learned trial judge made a number of references to the victim, some of which were clearly critical and others less obviously so. In the former category are the references to potential conflict and discrepancy. In the latter is the comment about naivety. There was also a sceptical comment by the trial judge about the psychological trauma that he acknowledged as being the fate of victims of sexual assault but as to the degree that operated on this victim he expressed doubt, citing once again the discrepancy or potential conflict as to evidence but without saying how the two might be connected. The judge was unduly sensitive to a perceived attempt to influence his decision and was too ready to infer such a meaning from what the victim said. It would not in any respect have impacted upon the rights of the accused man if a more sensitive approach had been adopted towards the victim.

48. The Court is satisfied that there were significant errors of procedure and other defects in the sentencing process as above described but that is not the question that the section requires to be answered. The Court of Criminal Appeal in Redmond drew together the tests to be applied in an application of this kind. It is not sufficient that this Court would have imposed a higher sentence. The onus is on the Director to establish that the sentence was unduly lenient, which is understood to mean a substantial departure from the norm. The Director does not argue that a suspended sentence could not properly have been considered but that the instant circumstances were not so wholly exceptional as to warrant that approach.

49. In determining undue leniency in the context of Section 2, it is relevant to look to the consequent step in the event that the application succeeds. Under sub-section (3) (a) the Court may quash the sentence and replace it with what the Court considers appropriate. If this Court is not satisfied that it would be appropriate to impose a sentence of immediate imprisonment, notwithstanding the defects in the sentence process or even a conclusion that there was an error in principle, it would not be justified in quashing the sentence.

50. It is clear that the crime committed by the respondent was a serious one as the DPP submits and that it should in the absence of the most exceptional circumstances be met with a custodial sentence. The learned sentencing judge acknowledged as much and this Court endorses the general rule. There were nevertheless as the sentencing Court held and this Court accepts powerful mitigating features, including the information available to the sentencing court as to the respondent’s character since the time of the assault, which would substantially reduce the appropriate penalty to be imposed. In all the unusual particular circumstances of this case, the question for the Court is not only whether the trial court sentence constituted a clear departure from the norm but also if it would be just to consider sending the respondent to jail at this remove from the offence. Relevant to this question is the following brief chronology.

27th October, 2005 - Date of offence

2nd November 2005 - Respondent arrested and detained, but not charged.

February 2006 - Respondent went to US when not under obligation to stay in the State

December 2009 - Respondent was deported because of visa issue

21st March 2011 - Respondent rearrested and forensic evidence was put to him

30th January 2013 - Respondent pleaded guilty to sexual assault

23rd April 2013 - Sentence hearing

24th April 2013 - Sentence judgment

13th November 2014 - Court of Appeal hearing

27th November 2014 - This judgment.