THE COURT OF APPEAL
Birmingham P. Edwards J. Hedigan J. Record No: 141/2017
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
JUDGMENT of the Court delivered on the 31st of July, 2018, by Mr. Justice Edwards.
Introduction
1. On the 6th of February 2017, the appellant herein pleaded guilty to three counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990, being counts no's 1, 2 and 3 on the indictment, and four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, being counts no's 4, 5, 7 and 8 on the indictment. On the 2nd of May 2017, a sentence hearing took place. On the 11th of May 2017, the appellant was sentenced to a cumulative sentence of thirteen years' imprisonment plus five years' post-release supervision. The cumulative sentence was comprised of three concurrent seven year terms of imprisonment for the three rape offences charged in counts no's 1, 2 & 3, respectively, the said sentences to date from 24/01/2017; a further one year term of imprisonment in respect of the sexual assault charged in count no 4 to be served concurrently with the said seven year sentences; a further, and consecutive, sentence of two years imprisonment in respect of the sexual assault charged in count no 5, to date from the expiry of the seven year sentences on counts no's 1, 2 & 3 ; a further, and consecutive, sentence of two years imprisonment in respect of the sexual assault charged in count no 7, to date from the expiry of the two year sentence on count no 5; and a further, and consecutive, sentence of two years imprisonment in respect of the sexual assault charged in count no 8, to date from the expiry of the two year sentence on count no 7;
2. The appellant now appeals against the severity of said sentences.
Background facts
3. The events forming the subject matter of the present case took place in the appellant's home, also the home of the complainants' grandmother. Each of the four complainants are the nieces of the appellant, and they are daughters of three of the appellant's brothers. At the sentence hearing, Sergeant Tom Quinn testified that, between the 1st of May 2003 and the 31st of August 2003, one of the complainants ("SM") was visiting her grandmother's house where the appellant, as mentioned, also lived. SM was seven years old at the time and on her summer holidays from school. The evidence at the sentence hearing was that the appellant told SM to go into his bedroom and told her to pull her trousers down. SM did not understand what the appellant was asking her to do. Subsequently, the appellant pulled SM's trousers down, put his hand over her mouth and put her head into the pillow. He got on top of her but she got up and started screaming so the appellant got up and left. This incident was the subject of count no 5.
4. Sergeant Quinn also gave evidence that, between the 1st of June and the 31st of August 2006, another niece of the appellant, SM's sister, ("TM") was visiting her grandmother's house and was raped on three occasions and sexually assaulted by the appellant on one occasion. TM was seven years old at the time and she had just made her first holy communion, and was on her summer holidays from school. The evidence was that, on the first occasion, the appellant put his hand over the mouth of TM and carried her to the bedroom, put her lying on her tummy, pulled down her trousers and underwear. The appellant put his hand over her mouth and inserted his penis into her anus. The evidence was that this rape occurred for ten or fifteen minutes and that the appellant prevented TM from screaming by putting his hand over her mouth. This incident was the subject of count no 1.
5. Sergeant Quinn also gave evidence that, on another occasion during the same period, TM was again visiting her grandmother's house when the appellant lifted her across a fence and brought her into a sheep shed. Again, the appellant put TM lying on her stomach on the ground, which was described as "mucky and dirty" , pulled down her underwear to her ankles, lifted up her skirt, put his hand over her mouth and inserted his penis into her anus, despite the efforts of TM to fend him off. The evidence was that this offence also lasted for about 10 to 15 minutes. This incident was the subject of count no 2.
6. On the third occasion, again during the same period, the appellant was alone with TM in her grandmother's house. The appellant locked the doors, lifted TM up and brought her to his bedroom, put her on the ground lying on her stomach. The appellant kneeled behind TM with his knees either side of her, pulled down her trousers and underwear to her ankles, put his right hand over her mouth and again inserted his penis into her anus. The evidence was that TM was crying and found it found it difficult to breathe because the appellant's hand was over her mouth and nose. This offence again lasted for 10 to 15 minutes. This incident was the subject of count no 3.
7. On another occasion, during the above period, the appellant was sitting at the kitchen table when he told TM to get up from the couch. He grabbed her by the side of her hips, pulled her close to him and kissed her on the lips. This incident was the subject of count no 4.
8. The appellant was arrested in respect of the above offences on the 9th of February 2015. They had come to light during a Garda investigation of an unrelated matter. He was interviewed on three occasions, during which he made no admissions in respect of the above offences. Subsequently, two other nieces of the appellant, ("DW") and ("NM") made complaints in respect of the appellant. NM, is a cousin of TM and SM and was 16 years old and due to sit her Junior Certificate at the time in question. The evidence at the sentence hearing was that, between the 1st of May 2010 and the 1st of June 2010, NM was staying at her grandmother's house. She had been sleeping in a bedroom with the door locked. She was sleeping on her chest and woke up to find the appellant lying on top of her. She could feel his right arm underneath her and his right hand inside her underwear and his finger inside her vagina. NM started crying and the appellant then removed his finger. The evidence was that NM was penetrated by the appellant's finger for about a minute. This incident was the subject of count no 7.
9. DW is a cousin of NM, TM and SM. The appellant sexually assaulted DW when she was nine years of age during the period between the 1st of October 2001 and the 31st of October 2002. The evidence at the sentence hearing was that on the occasion in question, DW was staying in her grandmother's house during this period and most likely during the winter time as the evenings were dark. The appellant told DW to go to his bedroom and make his bed. DW went to the room and she put her hand on to the light switch but there was no light. The appellant came in from behind her and pushed her on her back on to the bed. She tried to get up but he held her down on the bed. He tried to pull down her clothes and pants. His hands were feeling her all over her body, touching her all around her chest and side. DW screamed, thinking that he was going to have sex with her. The appellant subsequently got up. DW was crying and the appellant told her if she told anyone he would kill her. This incident was the subject of count no 8.
10. The appellant was re-arrested subsequent to the complaints made by DW and NM. At interview with Gardaí, the appellant made no admissions in respect of DW, but did admit to sexually assaulting NM. The appellant was subsequently charged with the above offences and was ultimately sent forward for trial in the Central Criminal Court. The appellant had been admitted to bail pending his trial. However, on the 24th of January 2017, the appellant's bail was revoked in circumstances where the appellant was arrested in the context of a separate investigation on suspicion of having committed rape involving yet another niece.
11. Approximately one week before the appellant's trial, it was confirmed that the appellant would enter guilty pleas in respect of all counts on the indictment. Accordingly, he was arraigned on the 6th of February 2017. There was one count to which he pleaded not guilty and a nolle prosequi was entered against this count.
12. The appellant was ultimately sentenced in the terms outlined at the outset of this judgment and he is now appealing against the severity of said sentences.
Impact on the victims.
13. All four victims in this case furnished victim impact statements to the sentencing court. DW stated that she could never tell anyone what had happened to her as she was afraid what people would think of her, she felt dirty and knew what had happened to her was not normal. She used to cry every night and get flashbacks of what the appellant had done to her. She stated that sometimes she felt like taking her own life but that she couldn't put her family through that. She avoided going to her grandmother's house after this incident and if she did go there, she made sure that she was never alone with the appellant, and avoided him at every opportunity. She considers that he ruined her childhood and her self-confidence.
14. DW goes onto state that she never told anyone of the assault until she was in secondary school where she told a counsellor. She states that she very much played the assault down a lot to the counsellor as she didn't want her mother or anyone else to find out. It was only in light of revelations about sexual assaults perpetrated against other members of her family that DW felt able to come forward and tell the Gardaí and her family about the occasion when the appellant sexually assaulted her. DW concludes by stating that she has never truly gotten over what happened to her. However, she is very relieved that she has been able to tell her family after all these years. She feels that the healing can now begin and she hopes to finally be happy and move on with her life with her family.
15. NM states that since the assault perpetrated against her by the appellant, she cannot sleep without having nightmares. When she does sleep, she wakes up sweating and panicking. Since making her statement to Gardaí, NM and her fiancé have been intimidated and her fiancé has been physically assaulted. Her family has been ripped apart since she made her complaint - she says that none of her cousins talk to her anymore, some of whom used to be her best friends. She states that the assault has completely changed her life, she constantly pushes people away and cannot trust anyone. For years she has thought about suicide and "still do[es] to this day". The only thing keeping her going is her son and fiancé. Counselling has not helped her to come to terms with what has happened to her.
16. SM states that ever since the incident she has been terrified of the appellant. She avoided going to her grandmother's house as she knew he would be there. Even as she got older, she would shake with fear if she saw him coming down the road especially if she was by herself. She was afraid to even look at him. She recalls that he used to carry dog lead chains and when she could hear these chains moving she would know that he was on the way. SM states that, as she got older, she used to think a lot more about what had happened to her but was too scared to tell anyone about it. She was doing her Leaving Certificate when she finally talked to someone about it, after which she had to leave school for a couple of weeks. However, she decided that she wasn't going to let what had happened to her affect the rest of her life so she went back to school to complete her studies. SM states that her life has been a living hell for the last two years and she had had to leave her home six months after the abuse was revealed as everything just became too much for her.
17. TM states she was very frightened after what had happened to her and wanted to tell her parents but was afraid to do so as the appellant had warned her not to tell anyone. She has very negative feelings towards him as he ruined her childhood. She states that she tried to forget about what had happened to her as she got older but she was not able to do so. She used to cry in her bedroom on her own, reliving that summer over and over again in her head. She states that when her abuse was revealed she experienced nightmares, was unable to concentrate in school, and as a result left school at the beginning of 6th year. She states that even now she does not like people coming up behind her as it brings her back to when she was seven and what the appellant did to her. She does not want to think about the appellant anymore and is very keen just to get on with her life.
The Appellant's Personal Circumstances
18. The appellant was born on the 7th of February 1968. The offences the subject matter of this appeal were all committed by him during a period of nine years from 2001 to 2010, during which timeframe the appellant was aged between thirty three and forty two.
19. The appellant has one relevant previous conviction, namely a conviction under s. 2 of the Criminal Law (Amendment) Act, 1935 for the unlawful carnal knowledge of a female under the age of sixteen years. The victim was a fourteen year old cousin of the appellant who became pregnant as a result. The offence was committed when the appellant was in his late twenties, and the conviction was recorded by Longford Circuit Criminal Court on the 4th of February 1997. The appellant received a wholly suspended eighteen month prison sentence for that offence. The appellant has a number of other convictions but not for any relevant offence.
20. The sentencing court was furnished with a very lengthy psychological report, dated the 24th of April 2017, from Forensic Psychological Services ("the report") in respect of the appellant. Emanating from this report, the following narrative regarding the appellant's personal circumstances emerges.
21. The appellant was forty-nine-years-old at the time of sentencing. He grew up in a small village in the midlands in a family of ten. He was the middle child and had three younger brothers, three older brothers and one younger sister. He reported having had a good childhood and positive relationships with his parents. His mother took care of the children whilst his father worked long hours in the bog. His family had financial difficulties and often lacked the money to buy food and pay the rent. The appellant did not have many friends growing up and mostly interacted with his siblings. He had a good relationship with his brothers but occasionally had arguments with them, which sometimes turned physical. Most of the appellant's family members moved out of the family home over the years, whilst the appellant, apart from a three-year period where he lived with a sexual partner, remained living there until his incarceration in 2017.
22. The appellant attended primary school from the age of five. He did not enjoy school as he had difficulty following academic material. He never learned to read or write and received no additional support to help with his illiteracy. He would often abscond from school and would spend most of this time walking the fields. He permanently dropped out of school after his final year in primary school at the age of twelve. After leaving school the appellant spent his days looking after his dogs and chickens. At the age of eighteen he worked as a bog labourer for a number of weeks but stopped this work as it was extremely difficult. Subsequently, he began receiving regular social welfare payments. He was employed for two years with a pet food company, but apart from that has not worked in any formal job.
23. The appellant described his sexual and relationship history to the psychologists, and disclosed his previous conviction for unlawful carnal knowledge. He claimed to have had other sexual encounters as a young man, and that during his early thirties he had formed a relationship with a woman ten years younger than him with whom he lived for a period of three years. The relationship ended when she was unfaithful and he moved back to his parent's house. The appellant did not disclose to the psychologists that he had had his bail revoked in the circumstances previously mentioned.
24. The appellant began drinking at the age of 16, his consumption escalating during his twenties where he reported to have been drinking a number of bottles of wine a night. The local off-licence stopped selling alcohol to him but he continued to obtain alcohol through other means. His drinking resulted in the deterioration of his relationship with his parents. He often had physical altercations with his father when drunk, resulting in his father having to call the Gardaí on a number of occasions. The appellant reported that he began drinking more heavily subsequent to the offences the subject matter of the present case as "he was anxious about his actions being discovered and the consequences that would result from this". The appellant reported having curtailed his drinking behaviour two years prior to the psychological assessment, following a suicide attempt.
25. The appellant had never attended mental health services, but gave a history of episodes of low mood and of an attempt to hang himself in a garden shed two years previously, while inebriated.
26. The report indicated that in addition to the previously mentioned conviction for unlawful carnal knowledge the appellant has previous convictions for a number of burglaries of residential homes and shops, committed when he was approximately twenty years old. He received a custodial sentence for this and served a sentence of eighteen months imprisonment between Mountjoy Prison and Loughlan House, Co. Cavan.
27. The appellant accepted that the statements given to Gardaí by all of the victims in the case were accurate in so far as they relate to the offences in respect of which he has pleaded. However, the appellant had wanted to deny one additional sexual assault charge that was initially preferred and which related to SM. Following legal advice, he pleaded guilty to all matters with the exception of this charge (which had formed the basis of count no 6 on the indictment, in respect of which a nolle prosequi was subsequently entered).
28. In terms of insight into his offending behaviour, the report stated that the appellant reported that he had a sexual preference for women and did not feel sexually aroused when looking at children. He also expressed significant shame and remorse for his offending behaviour, and fully accepted responsibility for his actions. The report records that the appellant felt that he was unable to stop himself from engaging in the offending behaviour.
29. The appellant reported having experienced significant anxiety since his incarceration, mainly due to the concern that other prisoners will find out the nature of his offending behaviour. His low mood has been exacerbated by the death of his mother while he has been imprisoned and the fact that he was unable to attend her funeral.
The authors of the report carried out an assessment of the appellant's cognitive ability using the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV). Using various measurement indices to examine verbal comprehension, perceptual reasoning, working memory and processing speed, it was determined that his overall thinking and reasoning abilities are exceeded by 99% of his peers. The report concluded that:
"Whilst there are no significant strengths or weaknesses in [the appellant's] cognitive functioning, his results indicate that he has poor vocabulary and his command of language is particularly limited. [The appellant] will find it difficult to express himself and will find it difficult to understand the spoken word unless concise and simple language is used by those communicating with him.
[The appellant's] performance indicated that he also has particularly poor concentration and memory. He will find it difficult to keep his attention focused and will be easily distracted.
[The appellant] has significant difficulty with abstract information and his perceptual ability is poor. He will find it difficult to understand information unless it is presented to him in a simple and concrete format.
[The appellant] has poor processing speed. He has significant difficulty learning new and unfamiliar tasks. He will find it challenging to function in day to day life unless adequate and additional time is afforded to him in which to listen, verbalise, problem solve and digest pictorial or verbal stimuli.
Given his poor cognitive ability, [the appellant] will have greater difficulty functioning on a day to day basis other than adults his age"
30. The report also noted that the appellant has very low adaptive functioning, poor communication and organisation skills, high levels of psychological distress and is impulsive in that he finds it difficult to resist temptations even when facing legal and social consequences. The report also noted that the appellant may be suffering from an undiagnosed intellectual disability, however, the authors of the report were unable to diagnose same in the context of the assessment they were conducting. The appellant's incarceration inhibited them from carrying out a comprehensive review.
31. Finally, the authors of the report, using established actuarial methods of risk assessment, deemed the appellant to be in the Moderate - Low range of risk of re-offending overall, meaning that "[the appellant's] risk of committing a sexual offence in the coming 5 years is 6.6% if he returns to living in the community." The report noted that risk factors associated with this risk of re-offending were: his lack of positive social influences; his lack of a current relationship; his lack of close relationships; his impulsivity; his lack of insight into his problems, and; his deviant sexual preference in relation to his offending against prepubescent victims. Protective factors tending to positively impact upon his risk were reported to be: his lack of emotional identification with children; his absence of negative attitudes towards women; his concern for others; his lack of hostility or resentment; his lack of sexual pre-occupation; the fact that he does not use sex as a coping strategy, and his ability to co-operate with supervision.
32. In conclusion, the report stated the following
"In light of the above, the following recommendations are made:
1) It is imperative that the prison services are made aware of [the appellant's] high level of psychological vulnerability to ensure his safety and well-being.
2) It would be beneficial for [the appellant] to be moved to a protective wing of the prison in order to ensure his safety from potential violence against him, should his offences be discovered by other prisoners
3) It would be beneficial for [the appellant] to engage in individual psychotherapy. His psychotherapist should have experience working with clients with limited cognitive ability and forensic problems.
4) Given [the appellant's] limited cognitive functioning, it is recommended that any conversations or directions are delivered in clear, concise, simple and concrete language.
5) It is recommended that [the appellant] receives support in relation to his literacy skills. Any official documentation or correspondence should be read out to him and then explained in language that is commensurate with his ability.
6) It is important that [the appellant] does not resume his alcohol consumption when he is released from prison. He will require significant support with this and it would be beneficial for him to attend an addiction treatment programme
7) It would be beneficial for [the appellant] to complete an assessment for a potential diagnosis of intellectual disability. This would be best done after he is released from prison."
Sentencing Remarks 33. Following receipt of a plea in mitigation, the sentencing judge delivered a lengthy sentencing judgment. We now set out certain excerpts from this judgment that are pertinent to the present appeal: "Now, who could doubt the seriousness of those matters? All of the offences are rendered more serious by two factors; they occurred in the children's grandmother's house, which should have been a place for visits from which they derived pleasure, as one would with one's grandparents, but they could not have done so and even when the events came to an end, and I'll come to the victim impact reports in a few moments, those visits cannot but have been a source of hardship rather than the opposite to them and no third party, no parent, for example, could have suspected for a moment that such things would be happening in that house. So, there was a breach of trust and a gross breach of trust by these children's uncle at the time of these offences, apart all together from the intrinsic seriousness of them.
……………………..
Now, turning then to the accused, I've referred to his date of birth and yes, sorry, I've referred to his date of birth which was the 7th of February 1968. He resided with his parents all his life, except for a three year period when he was in a relationship with it appears a mature woman. He is a person who is illiterate and has very limited educational attainments. I have read the psychological report from Forensic Psychological Services. This seems to be a very thorough report. He was candid with the services in question because he admitted his unlawful carnal knowledge of the 13 or 14 year old member of his extended family, giving rise to her pregnancy and also he admitted a further similar type of conduct on a child of 16 or thereabouts, who and he she became pregnant also. He does not know whether he was responsible for that pregnancy or not but it can be seen that on his own admission, with respect to the 16 year old, and having regard to the conviction in respect of the 14 year old, there is a major pattern here of serious sexual offending and whilst
Now, he has had limited employment history, about two years and he left school, as I say, at the age of 12. Now, he has never attended the mental health services but there is a reference to low mood and also an attempted suicide. There is also a reference to excessive drinking and he and in addition to that fact the psychologist has sought to address his cognitive functioning and under a number of headings it is described which as borderline, extremely low and in summary he is described as having poor concentration, significant difficulty with abstract information and poor processing speed. It is recommended, apparently, that he have I think psychological or psychiatric assessment for potential intellectual disability. So, there's no doubt about the fact that he is a person with severe limitations and that he's also a person who has a poor history in terms of education and employment.
Now, as we know, the propensity to offend in the future is not a factor which, save to an extent to which I will refer in a moment, cannot [sic] be taken into account in sentencing as a factor which exacerbates the seriousness of the offence and calls for a sentence of greater severity than otherwise might be the case. However, when a person is when a person comes before the courts in respect of offences of this kind and there is a low risk of reoffending then the sentence must be lower than otherwise might be the case accordingly. It need hardly be said that amongst the reasons for this is that the necessity for personal deterrence in respect of future offending will be lower in such a case.
Now, in this instance, I reject the evidence explicitly of Forensic Psychological Services in respect of the fact to the effect that there is a that the risk of reoffending is in what might be described as the moderate low range on the basis of several tests which were conducted. In the first instance, this man was his bail was revoked in circumstances where there was a breach of the terms of the bail by the fact that he had that he associated with a female in the area who was apparently a member of the extended family. Now, the allegation in respect of that event is an allegation of rape. That is a matter which must be dealt with in separate proceedings. I reach no view as to whether or not the an offence was committed or whether or not if it was committed or the as to the strength of the evidence. So, it is important that I place on record that that is something I cannot and do not take into account, even though were it proved it would obviously go to the issue of the risk of future offending. It is something which will, no doubt, be addressed by the sentencing judge on any conviction should there be a conviction for such an offence.
However, there was a lack of candour in speaking to the psychologist on the part of the accused, in telling the psychologist about the circumstances in which he came to be remanded in custody and his bail revoked and that want of candour, of course, undermines any professional's conclusion on this topic. One is not required, just because there is a report of an expert which is not contradicted, to mechanically accept the evidence constituted by the report. The fact that it's not aural evidence obviously goes to weight, apart from anything else, and I reject the report insofar as it reaches that conclusion. It is not, also in my view, in accordance with common sense. There is no such thing as trial by expert, but we have his own engagement with a 16 year old, we have a conviction in respect of a 14 year old and we have four offences in respect of four children, albeit the eldest of whom was 16. As a matter of common sense, the commission of offences of this kind over a lengthy period or even if the is seems to me to be something utterly incompatible with a low risk or even a moderate risk of reoffending. The law excludes me from increasing sentence to impose anything in the nature of preventative detention, but it means a case that it is a case where a higher level of sentence for by way of personal deterrence is necessary and the mitigating factors sometimes present otherwise doesn't exist.
I take into account the personal circumstances of the accused. Sentence is not an exercise in vengeance. The Court is required to look at the offence and in terms of the offender on a subjective basis. The maximum penalty for the sexual assaults is 14 years. The maximum penalty in respect of the section 4 assaults is imprisonment for life. It seems to me it's a case where consecutive sentences are imposed. One does not, as it were, mechanically reach a conclusion as to sentence in respect of a given offence and then, as it were, add on, in the case of consecutive sentences, the sentence which one has arrived at in respect of other offences because that could well give rise to a breach of the principle of proportionality and the fact that the Court must look to the totality of sentencing. Accordingly, the sentencing in respect of each of the offences before me will be lower than it might otherwise be but I believe that the ultimate sentence, the ultimate period which he would be required to serve, will be in conformity with the principles of totality and proportionality and will meet the circumstances of the crime as committed by this offender.
Now, in the ordinary course in respect of each of the section 4 offences, one would be thinking of the appropriate sentence as being in or about a 12 year sentence. From that, one would then reduce the sentence or deduct, as it were, an appropriate number of years to mark the plea of guilty. The maximum period for which which should be given, in my view, in favour of the accused by virtue of that plea can only be in or about a quarter, that is to say three years, because of the fact that the plea came so late and that there was no cooperation with the gardaí, save in the case of Ms W.
The appropriate sentence in respect of the sexual assault involving the kiss would, I think, be regarded as towards the very bottom of the scale of seriousness of these offences and accordingly I propose to, in due course, mark that as taken into consideration. The State must consent to that but I assume consent will be forthcoming. So, were it not for the other offending the sentence in this matter would be in or about nine years in respect of the section 4 offences. One would then turn to the sexual assaults. The three assaults are very serious in terms of that class of offence and it seems to me that in those circumstances, absent any other factor, they would have to attract a sentence on their own, so to speak, of seven years. I'm not making any distinction between the 16 year old and the two much younger children in the circumstances of the case looking at it in the round. This is, as I say, not to down grade any one offence or the effect on any other one victim against the other.
That would be the appropriate sentence before a reduction for a plea. The appropriate sentence after a reduction for a plea would be in or about five years but it seems to me that in order to properly apply the principles of proportionality I should further reduce the sentences in respect of the section 4 offences to seven years and the sentences in respect of the sexual assaults to two years. That will mean that the total period to be served by the accused is 13 years imprisonment in respect of all, cumulatively. So, the sentences on the section 4 assaults, for the avoidance of doubt they are three in number, will be seven years concurrently. The offence of sexual assault which involves, if I could put it this way, the kiss on Tracy Mannion will be marked, subject to the consent of the State, as being taken into consideration and a two year sentence, each of which will be consecutive on the seven year sentence and on each other will be imposed in respect of the three sexual assaults and that gives a cumulative sentence of 13 years.
I am not at all happy about the future after his release and accordingly I turn to one of the incidents of conviction. It is not part of the penalty but and that is a sexual offenders order or a supervision order more properly and I impose a term of five years post release supervision. That five years order will be that during that period he will abide the directions of the Probation and Welfare Service. The position is that much more complicated orders have been sought on occasion but they really reflect only, if you like, an elaboration of or a higher degree of specificity in respect of the offences or the directions which can be imposed by the Probation and Welfare Service. So, for the avoidance of complexity I propose to do it on that premise, or on that basis."
34. Following subsequent exchanges with counsel the sentencing judge decided to impose a sentence of one year's imprisonment in respect of court no 4, to be served concurrently with the seven year sentences imposed on counts no's 1, 2, &3, instead of taking it into consideration as he had originally proposed doing.
Grounds of Appeal
35. The appellant seeks to rely upon six grounds of appeal, as follows:
i) The sentencing judge erred in measuring a total sentence of 13 years (with 5 years' post-release supervision) in all the circumstances of the case;
ii) In so calculating, the sentencing judge erred in measuring 2 years in each case as an appropriate period for sexual assaults in which there had been a plea of guilty;
iii) The sentencing judge erred further in making each such sentence consecutive;
iv) The sentencing judge failed to afford adequate mitigation to the appellant for his intellectual limitations as found in the psychological report dated 24th April 2017;
v) The sentencing judge erred in failing to give sufficient weight to the pleas of guilty entered in relation to the offences;
vi) The sentencing judge erred in effectively punishing the appellant for a later allegation both in rejecting the findings of the psychological report as to the likelihood of his reoffending and in deciding to mark his lack of candour.
Discussion and analysis 36. The Court has had the benefit of written legal submissions from both sides, which were amplified by oral submissions at the appeal hearing, and is grateful to counsel for their assistance.
37. It is convenient to start with ground no (iv) because it relates to the policy objectives of the process of sentencing. It is suggested in effect that the trial judge in determining upon his sentences got the balance wrong as between the accepted sentencing objectives of retribution, deterrence (both general and specific) and rehabilitation, and that by focussing excessively on specific deterrence he ended up imposing sentences that were disproportionate both individually and cumulatively. Moreover, it is complained that in doing so he had inappropriate regard to the fact that the appellant's bail had been revoked in circumstances where he has since been charged with another rape offence.
38. The first thing to be said is that deterrence is a legitimate sentencing objective, and it operates in most cases in parallel to sanction by way of retribution and denunciation. It seeks to modify future behaviour by encouraging desistence in a coercive way through the intimidatory effect of the sentence imposed. In a "carrot and stick" approach it is sometimes pursued in conjunction with the penal objective of rehabilitation which also seeks to modify future behaviour by encouraging desistence by assisting an offender in addressing, and where appropriate rewarding the offender for having addressed, personal and environmental factors that would pre-dispose him to engagement in offending behaviour, rather than through any form of intimidation or coercion. The important thing to appreciate is that pursuit of deterrence, or any of the other recognised sentencing policy objectives, may only operate to influence the calibration of what should be the appropriate sentence from within the scope of the judge's legitimate margin of appreciation in terms of proportionate sentencing. The sentence selected, regardless of what policy objectives are being pursued, must at the end of the day be proportionate both to the gravity of the offending conduct and to the personal circumstances of the offender. Pursuit of a sentencing policy objective cannot be used to justify the imposition of a disproportionate sentence.
39. In the case of a sexual offender, the objective of ensuring appropriate specific deterrence will naturally be of concern to any sentencing judge. In calibrating the extent to which a sentence within the legitimate discretion of the court should be biased in favour of a specific deterrent effect, it is both proper and appropriate for the sentencing judge to have regard to the risk of re-offending. This is not with a view to incapacitation or any form of preventative detention, but with respect to arriving at the appropriate balance in the pursuit of legitimate sentencing policy objectives. The sentencing judge in this case was entitled to reject the evidence of the psychologists who assessed the appellant as being at moderate-low risk of re-offending, because it was clear to him, as it is to us, that the opinion was offered in circumstances where the assessing psychologists had not been provided with benefit of full information. It was highly material to the issue of any risk assessment that the psychologists should know that the appellant had been charged with a further relevant offence. To state this is not to undermine or disrespect the appellant's presumption of innocence with respect to that matter. It could not be, and was not in this case, taken into account in his sentencing as aggravating gravity in any way. However, it was potentially relevant information for the psychologists in terms of assessing the risk of future offending, and it is a fact that they did not have this information. Whether that was due to lack of candour on the part of the appellant, or simply because he may not have been asked the right questions, is really neither here nor there. The bottom line is that the sentencing judge felt obliged to reject the psychologist's opinion concerning the level of the risk of re-offending, which he was entitled to do in the circumstances, and to substitute his own assessment based upon the evidence that had been adduced before him and the application of what he described as "common sense". We find no error of principle in the judge's approach.
40. The first five grounds of appeal amount in substance to complaints about the process of sentencing and amount to a contention that the aggregate or cumulative sentences imposed were disproportionate and too severe in consequence of that. Drilling down to see what specific complaints the appellant makes about the process, it is implicitly but quite clearly being asserted that the sentencing judge over assessed the gravity of at least some of the offences; and/or that he had inappropriate recourse to consecutive sentencing; and/or that he failed to have sufficient regard for the totality principle; and/or that he afforded insufficient allowance for mitigation and the personal circumstances of the appellant.
41. There are in essence three categories of offending conduct involved in this case, namely anal rapes, sexual assaults involving digital penetration or violence/threats or restraint of the victim, and other sexual assaults.
42. It is convenient to deal with the rape offences first. The available penalties range from non-custodial options to life imprisonment, but having regard to The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250, The People (Director of Public Prosecution) v D(W) [2008] 1 IR 308, and numerous decisions of our own court, the starting point must be in almost all cases a substantial custodial sentence. In this case the intrinsic seriousness of what was done was aggravated by the young age of the victim, the age disparity between the appellant and his victim, the multiplicity of incidents, and the breach of trust involved in the abuse by an uncle of his niece, and the fact that he had a relevant previous conviction for a sexual offence. Mitigating factors to be taken account of in the assessment of gravity were the appellant's very low level of intelligence and his reduced cognitive functioning / his query or undiagnosed but suspected intellectual disability, manifesting itself in his case in impulsivity and a self-perceived inability to stop himself from engaging in the offending behaviour. As the victim impact report from TM bears out, the harm done by the appellant's offending conduct was considerable.
43. The sentencing judge in his assessment of the gravity of the offending conduct determined upon headline sentences of twelve years in the first instance. This may have been towards the severe end of the range in terms of the judge's legitimate margin of appreciation having regard to the appellant's level of mental functioning, but it was certainly not outside the range. The sentencing judge then indicated a willingness to reduce those sentences by a quarter to reflect mitigation. In that regard he specifically referenced the pleas of guilty, while noting that they had been late pleas and that there had been no-cooperation. While the sentencing judge did not specifically mention at this stage of his judgment the appellant's history of episodes of low mood and attempted suicide, his alcohol addiction, his illiteracy, his vulnerability to being taken advantage of, matters which he was entitled to have taken into account as relevant personal circumstances and as matters that might make prison harder to bear in his case, we are none the less satisfied that the trial judge was cogniscent of them from his detailed review of the psychological report, and may be inferred to have taken them into account. We have said previously that a sentencing judge is not required to checklist every item he is taking account of in mitigation. Clearly, however, specifically mentioning such matters aids transparency and will be of assistance to any court engaged in an appellate review. We consider that the discount of 25% afforded was sufficient to reflect both the plea and all of the other circumstances we have mentioned.
44. In relation to the first, and more serious, category of sexual assaults, i.e., those involving digital penetration, violence/threats or restraints, it is clear that the sentencing judge approached the assessment of gravity in the same careful way that he had approached it in the case of the rape offences. The aggravating circumstances were in each case manifest, being the fact of digital penetration in the case of count no 7; the violence associated with the forcible removal of clothing and climbing on top of the victim in counts no's 5 and 8; the issuing of a threat to kill to the victim in count no 8, and the assailant putting his hand over the victim's mouth in count 5 to restrain her from screaming. There were multiple victims, and again relevant factors were the young ages of the victims, the age disparity between the appellant and his victims, the multiplicity of incidents, the breach of trust involved in the abuse by an uncle of his nieces, and the fact that he had a relevant previous conviction for a sexual offence. The same mitigating factors with respect to culpability as were mentioned above in the case of the rape offences also required to be factored in. Again, the harm done to each victim was considerable.
45. We are satisfied that the headline sentences of seven years, though again at the severe end of the range in terms of the judge's legitimate margin of appreciation, were not outside the range. He went on to discount by two years for mitigation, but again referenced only the pleas of guilty. Once again, notwithstanding that, we are satisfied on the basis of the sentencing judge's detailed review of the forensic report that he was fully alive to the other relevant mitigating factors, and may be inferred to have taken them into account. We consider that the discount of two years afforded for mitigation was sufficient to reflect both the plea and all of the other circumstances we have mentioned.
46. The sentence in respect of count no 4, involving the unwelcome kissing of TM, received the lowest sentence, namely a sentence of imprisonment for one year, and no major complaint is made in respect of that. In any case we consider this sentence to have been appropriate notwithstanding that it was less of a violation, and caused less harm than the other offences, having regard to associated aggravating factors previously identified and which applied also in this instance.
47. In so far as the appellant complains about the imposition of consecutive sentences, we consider that this was manifestly a case for consecutive sentences, having regard to the multiplicity of victims and the overall incidence of offending. Offences involving the same victim were made concurrent inter se, but offences involving different victims were made consecutive. This was entirely appropriate in the circumstances of the case in our judgment.
48. In so far as the totality principle is concerned, the sentencing judge clearly had regard to it. He further reduced his indicative sentences of nine years for the rapes to seven years to take account of totality, and similarly reduced his sentences of five years for the serious sexual assaults to two years in each case. We consider that the totality principle was fully respected in the sentencing judge's approach, and find no error of principle on that account.
49. Finally, as must be clear from what we have already said, we do not agree with the complaint that the sentences ultimately determined upon, both individually and cumulatively, were too severe and excessive. In our view the sentences imposed were proportionate, both individually and cumulatively. We find no errors of principle and we dismiss the appeal.
