THE COURT OF APPEAL
258/2017
Peart J. Edwards J. Kennedy J. BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
M.S.
APPELLANT
JUDGMENT of the Court ( ex tempore ) delivered on the 3rd day of July 2019 by Ms. Justice Kennedy
1. This is an appeal against sentence. On the 2nd November 2017, the appellant was convicted of three counts of indecent assault in respect of two complainants, MW and DK, who were 15 years of age at the time of offending.
Background
2. The appellant was a surgeon, who was employed in a hospital where he was appointed as a consultant from the year 1968 until his retirement in 1995. He also had a private clinic in the locality. The offences concerned the indecent assault of MW and DK in both the hospital and his private clinic between 1974-1976. There is one count concerning DK who attended the appellant in relation to an ingrown toenail and during the course of the medical examination the appellant touched and massaged his genitals. The remaining two counts relate to MW who was diagnosed with non-descended testes and hernias, requiring an operation in April 1975 when Mr. S. performed the surgery. He had a number of appointments thereafter post-surgery with M.S. in his private rooms. He gave evidence at trial of two occasions when M.S. massaged the base of his penis with his fingers and thumb for a considerable period of time. On the second occasion in order to bring the situation to a close, the witness said that he ejaculated.
The Sentence
3. In terms of aggravating factors, the sentencing judge referred to the breach of trust by the appellant who was seen as an esteemed senior doctor and particularly in relation to MW who knew the appellant through his family, the nature of the abuse, the age of the victims and the impact of the offending on the victims.
4. In terms of mitigating factors, the sentencing judge referred to the age of the appellant, his personal circumstances, his poor health, the references and testimonials handed into court, the age of the case, the absence of previous convictions, the appellant's long and productive career as a doctor and the effect on the appellant of being placed on the sex offenders register.
5. The judge then placed the offences in the upper range of the range of offending, the maximum sentence for each offence being two years' imprisonment. Concerning MW, the judge imposed a sentence of six months' imprisonment in respect of one count and a concurrent sentence of ten months' imprisonment in respect of the second count. A consecutive sentence of ten months' imprisonment concerning the indecent assault offence on DK was imposed, giving an actual sentence of twenty months' imprisonment.
Personal Circumstances
6. The appellant was 85 years of age at the time of sentencing. He has no previous convictions. Medical reports were handed into the court during the course of sentence hearing which detailed his poor health. The appellant suffers from, inter alia , coronary heart disease, abnormal blood cholesterol, hypertension and chronic effort angina.
Grounds of Appeal
7. We now proceed to set out the grounds of appeal and then the submissions in summary of the appellant and the respondent: -
(i) The learned trial judge erred in law and in principle in imposing consecutive sentences.
(ii) The learned trial judge erred in law and in principle in giving insufficient weight to the health and age of the appellant.
(iii) The learned trial judge erred in law and in principle in finding that the offences fell within the upper range of offending.
(iv) The learned trial judge erred in law and in principle in failing to identify a headline sentence.
Submissions of the appellant 8. Mr Hartnett SC on behalf of the appellant submits that the trial judge erred in placing these offences at the upper range of offending given the actual nature of the assaults. Moreover, that the judge's failure to identify a headline sentence was an error in principle.
9. Secondly, it is argued that the judge should not have exercised his discretion in imposing consecutive sentences and in this regard we are referred to The People (DPP) v. G. McC [2003] 3 IR 609 where the Court considered the exercise of such discretion in circumstances similar to the present case.
10. Finally, it is submitted that the trial judge did not give adequate weight to the age and health of the appellant and any reduction given by the trial judge was lost by the imposition of consecutive sentences.
Submissions of the respondent
11. In response, Ms. Biggs SC on behalf of the respondent submits that the judge did not err in placing the offences within the upper range given the significant aggravating factors and relies on the decision of the People (DPP) v. Clarke [2014] IECA 27 as authority for the proposition that a court may consider the surrounding circumstances of the offending in assessing the gravity of the offence.
12. The respondent accepts that the trial judge did not follow the recommended best practice of engaging in a two-step process, but contends that such failure will not automatically result in an error in principle.
13. Moreover, Ms. Biggs asserts that the imposition of consecutive sentences was appropriate given that the offending concerned two victims.
14. Finally, the respondent submits that, the judge having found that the offences fell within the upper range, the actual sentence of 20 months reflected a significant reduction in light of the mitigation present.
Discussion and Conclusion
15. These matters involved a significant betrayal of trust; the appellant's position as a medical consultant placed him in a particular position whereby he was, at the relevant time entrusted with the care of the injured parties. He abused that trust by his actions and such breach increases the gravity of the offending. The abuse concerned two young and vulnerable boys in respect of whom the conduct of the appellant has had a severe and long lasting impact.
16. The conduct of the appellant was reprehensible in many respects, not least that he preyed on these young boys whom he was entrusted to medically examine and instead he took the opportunity to abuse. This must have caused at the very minimum, terrible confusion in the minds of the victims. The appellant's abuse was effected in a most blatant manner under cover of a medical examination. The aggravating factors were therefore significant.
17. Whilst the nature of the acts in question in and of themselves were not of the most egregious nature, nonetheless, Mr S's culpability was at the highest level of intrinsic moral culpability as his acts were deliberate and intentional and were committed in the context of a medical examination and caused long term harm to his victims.
18. Mr Hartnett SC places heavy emphasis in oral submissions on a particular line in the sentencing judgment where the judge says:-
"I also take into account as aggravating factors the nature of the abuse, and I have recited that in the evidence of the victims already".
19. He argues that the judge considered as an additional aggravating factor, the nature of the physical acts perpetrated on each injured party and this constitutes an error in principle. Whilst it is the position that the actus reus of an offence is not an aggravating factor, nonetheless, it is a factor which must be considered in assessing the gravity of an offence. There are many other factors to be taken into consideration in assessing gravity to which we have already referred in order to assess the moral culpability of the offender and the consequential harm done.
20. Whilst the wording used by the judge may be somewhat infelicitous, we are satisfied that he correctly placed the matter at the upper end of the available range. When one looks to that range with regard to the maximum sentence, being one of two years' imprisonment, the upper end may extend from a period of some sixteen months to twenty-four months. We are satisfied that these offences fall within that range and therefore the judge did not err in so finding.
21. Whilst the sentencing judge did not follow the optimum practice in imposing sentence, this does not necessarily mean that there is an error in principle and this Court has previously so found. We must look to the actual sentence imposed ultimately by the judge and consider whether he fell into error in this respect.
22. Mr Hartnett SC also argues that the judge erred in imposing a consecutive sentence. In assessing this ground of appeal, we are very much alive to the fact that the appellant's conduct involved two separate victims. MW was abused on two occasions and DK on one occasion. We do not see any merit in the argument that the sentences ought to have been concurrent. If that were so, the sentence imposed concerning the abuse of DK would merge with the sentence imposed in respect of MW. We do not believe that to be appropriate in the circumstances and we are satisfied that the judge exercised his discretion in an appropriate manner.
23. Finally, the appellant argues that insufficient weight was attributed to the mitigating factors, in particular, the appellant's age and health. It is clear from a perusal of the transcript that the judge considered all aspects of mitigation urged on his behalf. As was stated by Ryan P. in The People (DPP) v O'Brien and referred to by the respondent in submissions:-
"There is no rule that prevents those who are ill from being sent to prison and the courts have recognised that such circumstances can be dealt with in custody"
24. Mr S is certainly an elderly man, but this does not of itself prevent a custodial sanction. The offences committed by him were grave offences and with long lasting impact on his victims. The maximum sentence, as already stated, for each offence is one of two years' imprisonment. The appellant did not have the mitigating factors of a plea of guilty or an expression of remorse available to him. The judge took into consideration the mitigating factors which were present and reduced the sentence accordingly.
25. When we examine the sentences actually imposed in respect of the offending conduct perpetrated on each individual victim, we are satisfied that the judge imposed a sentence in respect of each offence which was just and appropriate having regard to the particular circumstances of the offending conduct and the personal circumstances of the offender. The judge properly assessed the gravity of the offending conduct placing it in the upper range and had due regard to the mitigating factors and properly applied the totality principles.
26. We find no error in principle and accordingly the appeal is dismissed.
