THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
227/16
The People at the Suit of the Director of Public Prosecutions
Respondent
JUDGMENT of the Court delivered on the 5th day of December 2016 by
Mr. Justice Birmingham
1. On the 24th November, this Court dismissed an appeal against conviction. This judgment now deals with the sentence aspect of the appeal. It is not intended to repeat all that was said in the course of the earlier judgment. It is sufficient at this stage to recall that in July 2016, the appellant was convicted of two counts of indecent assault and that at a subsequent sentence hearing on the 27th July, 2016, he was sentenced to eighteen months imprisonment.
2. The acts of indecency occurred during the summer of 1985 and were perpetrated by the appellant against his wife’s niece who had come to Ireland on holidays from the United States where she lived with her parents. The basic facts relating to the two offences which resulted in convictions may be briefly stated.
3. The first incident occurred on an occasion when the complainant aged ten years accompanied her uncle in law to a supermarket. He engaged in what was a highly inappropriate conversation and then took the complainant’s hand and placed it on his penis over his trousers asking her to “thrill me”.
4. The second incident was later in the complainant’s stay with the appellant and his family. This incident occurred on the 25th August, 1985. It is possible to date it because the abuse occurred while a film “I Know Why the Caged Bird Sings” was playing on RTE in the TV room. On this occasion the appellant placed his hand inside the complainant’s underwear and proceeded to rub her clitoris.
5. The sentence hearing was a fairly brief one which consisted of a member of the gardaí outlining the facts, a victim impact statement being read and submissions by counsel on behalf of the then accused now appellant. No evidence was called on behalf of the appellant and only quite limited information was put before the Court by way of documentation and testimonials.
6. In the course of his sentencing remarks, the judge commented that he had thought about the case since the jury had returned its verdict, had listened to the submissions made by counsel on behalf of the accused and that what he had to decide was whether the accused was deserving of an immediate custodial sentence. The trial judge then answered his own question by saying that he felt that the accused had to undergo an immediate custodial sentence in this case, commenting that the sexual assault was serious, but that the position he was in at the time aggravated the situation and that he felt that the appropriate sentence taking all the factors into account was one of eighteen months imprisonment.
7. In the course of the appeal it is argued that the sentence was excessive and that insufficient attention was paid to the factors that were present that were very much in favour of the appellant. It is though, acknowledged at least tacitly, that the judge’s task was not made any easier by reason of the fact that the information put before him about the appellant was not as full as it might have been. In the course of the sentence appeal, particular emphasis has been placed on the fact that Mr. Prior has suffered very significant set backs in his business as a result of his convictions and subsequent incarceration. In particular it is proving impossible to obtain insurance cover for properties, including apartment blocks owned by the appellant.
8. The Court has some difficulty in deciding to what extent the business difficulties experienced post sentence in the Circuit Court can be considered at the first phase of this appeal process when consideration is being given to the question of whether the sentencing judge erred in principle. That a custodial sentence was likely to have some impact on the appellant’s ability to run his business must have been readily apparent at all stages, even if the extent of the impact or the precise nature of the impact was not appreciated or certainly was not brought to the attention of the sentencing judge. In those circumstances, the Court feels that some limited regard can be had to the issue.
9. In the course of his sentencing remarks the judge commented:-
“Now obviously every sexual assault is a serious assault by definition, but on the scale of offenders that appear before this Court, Mr. Prior could not be deemed to be the more serious.”
10. The judge then referred to the fact that Mr. Prior had no record of convictions whatsoever, that he was unlikely to re-offend, that he had been a hardworking man all his life, that he had been generous to individuals who were less fortunate than he was and that he was a charitable man donating to charity. On the other side of the coin, the judge referred to the fact that this was a case which was a serious event for the injured party and that he had to take into account as an aggravating factor that Mr. Prior was in a position of trust when he committed these offences and that he isolated the victim.
Discussion
11. As the sentencing court recognised, all sexual offences involving children are serious. It is true that the physical acts in issue in the two offences are not as serious as many offences which the Court is called to on to deal with. It is however, the case that the offending has had a very serious impact indeed on the victim which was evident from the powerful and eloquent victim impact report that was read to the Court. It is also the case that the surrounding circumstances were particularly aggravating. Not only was the victim a young child, but she was particularly vulnerable. She was separated from her family and had left her home to cross the Atlantic and spend time with her Irish relatives while her mother was undergoing surgery. In the Court’s view the question posed by the judge as to whether custody was required was correctly answered by him. In the Court’s view a custodial sentence in this case was entirely appropriate. The real question is what should the duration of that have been. This was a case where the gravity of the offending had to be marked by a period in custody.
12. On the other hand there were factors present which meant that the sentence should be no longer than was necessary to mark the gravity of the offence. The Court was being called on to sentence somebody who was 68 years of age, someone who had health issues and someone who came before the Court as a person who had made a positive contribution to society. While the full extent of his charitable and philanthropic activities was not put before the Court, the Court was made aware of his history of assisting individuals in need and of contributing to charities and indeed referred to this issue when imposing sentence.
13. In a case such as this when a judge has identified a sentence which he regards as potentially appropriate, it may be helpful for him to ask himself the question whether the sentencing objective can be met with a lesser sentence. That exercise may not be expressly undertaken and indeed it rarely if ever is.
14. In the Court’s view the seriousness of this offending could have been marked by a custodial sentence somewhat less than the one that was actually imposed and this is what ought to have happened. Sentencing someone in the appellant’s position, late 60’s with health issues to a term in prison, which would clearly be a foreign and strange environment and with an inevitable disruption of his business activities would nonetheless still mark the seriousness of the offence. A sentence that is so short as to undermine the seriousness of what has occurred would not be appropriate.
15. However, a sentence that is longer than strictly necessary in circumstances such as these is an error. Accordingly, this Court will intervene and will substitute for the sentences imposed in the Circuit Court, sentences of twelve months imprisonment on each count, the sentences to run concurrently. In varying this sentence in the manner proposed the Court is, as required to do, sentencing as of today’s date. In doing so it takes into account that the appellant has belatedly stated that he accepts the verdict of the jury,
