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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v J D (Approved) [2025] IECA 108 (08 April 2025)
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Cite as: [2025] IECA 108

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THE COURT OF APPEAL

[2025] IECA 108

                         

Court of Appeal Record No. 116/2023

McCarthy J

Burns J

MacGrath J

 

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

 

BETWEEN/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

-AND-

J.D.

RESPONDENT

 

JUDGMENT of the Court delivered on the 8th day of April 2025 by Mr Justice Patrick McCarthy

 

1.       This is an application by the Director of Public Prosecutions ('the appellant') pursuant to section 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on J.D. ('the respondent') in Kilkenny Circuit Court on the 24th of March on grounds of undue leniency.

2.       The respondent was indicted on 74 counts of sexual assault, contrary to section 2 of the Criminal Justice (Rape) (Amendment) Act 1990, as amended by section 37 of the Sex Offenders Act 2001, and he subsequently pleaded guilty to 20 so-called 'sample counts' of sexual assault for assaults against two victims (who are his daughters), referred to as 'Victim A' (whose date of birth is the 8th of November 1982) and 'Victim B' (whose date of birth is the 7th of July 1991) or 'the victims' herein. Counts nos. 1–43 relate to sexual assaults of Victim A and counts nos. 44–74 relate to sexual assaults of Victim B. The respondent was sentenced to post-mitigation sentences of 3 years' imprisonment on each of counts nos. 37 and 42 (assaults which related to Victim A) such sentences to run concurrently inter se. The respondent received post-mitigation sentences of one and a half years' imprisonment on each of counts nos. 65, 69 and 74 also to run inter se but consecutive to the sentences on counts nos. 37 and 42 (assaults relating to Victim B).

3.       The first offence in respect of which Victim A was victim occurred between the 1st of September 1992 and the 30th of November 1992 (Count No. 1) and the last between the 1st of June 1994 and the 31st of August 1994 (Count No. 43).

4.       The first offence in respect of which Victim B was victim occurred between the 1st of January 1997 and 31 March 1997 and the last in respect of which she was victim 31st of January 2004 and 6th of July 2004 (Count No. 74).

5.       The respondent pleaded guilty to counts nos. 1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 42 and 43 inclusive (all applicable to Victim A) and counts nos. 44, 49, 53, 57, 61, 65, 69 and 74 inclusive (all applicable to Victim B) being a total of 20 counts. The penalties for those offences were changed by statute over the period of offending (being from the first of September 1992 to the 6th of July 2004). The said penalties are set out in the table below.

Appropriate Sentencing Regime

 

Count No.                    Applicable Legislation                                   Maximum Penalty

1        Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

5        Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

9        Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

13      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

17      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

21      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

25      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

29      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

33      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

37      Section 2(2), Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37, Sex Offenders Act 2001   10 years' imprisonment

42      Section 2(2), Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37, Sex Offenders Act 2001   10 years' imprisonment

43      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

44      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

49      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

53      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

57      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

61      Section 2(1), Criminal Law (Rape) (Amendment) Act 1990          5 years' imprisonment

65      Section 2(2), Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37, Sex Offenders Act 2001   14 years' imprisonment

69      Section 2(2), Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37, Sex Offenders Act 2001   14 years' imprisonment

74      Section 2(2), Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37, Sex Offenders Act 2001   14 years' imprisonment

 

6.       Thus, the maximum penalty applicable in respect of counts nos. 37 and 42 (relating to Victim A) is 10 years and the penalty in respect of counts nos. 65, 69 and 74 (relating to Victim B) is 14 years.

7.       The post-mitigation sentence identified by the judge on counts nos. 65, 69 and 74, being consecutive to counts nos. 37 and 42 gave rise to an effective post-mitigation carceral sentence of 4 years and 6 months' imprisonment. The pleas were entered on a so-called 'full facts basis' in respect of the entire course of offending and the offences on which a sentence was not imposed were taken into consideration when imposing sentence. It will be seen accordingly that offending was taking place against Victim A alone between the 1st of September 1992 and the 1st of January 1997; from the latter date until the 31st of January 2003 the respondent was offending contemporaneously against both; and then solely against Victim B from January 2003 to the 6th of July 2004.

Factual background

8.       The offending behaviour in this matter occurred on dates between 1992 and 2004 and involved incidents of sexual abuse which occurred in the family home of the respondent and victims with the exception of one incident of sexual assault against Victim A which we describe below.

9.       The evidence-in-chief was provided by one Detective Garda Brendan Peters at the sentencing hearing on the 23rd of March 2024. Allegations of sexual abuse relating to this matter were first reported to an Garda Síochána in October 2018 by Victim B. During the investigation of these offences, both Victim A and Victim B provided statements to gardaí in which they each described being sexually abused by their father on effectively a weekly basis during the periods referred to in the counts.

          Offending against Victim A

10.     Victim A described a pattern of sexual abuse which occurred on a weekly basis (mostly at weekends and within the family home) which began in September 1992 when she was approximately 10 years of age. She stated that the respondent would get into her bed, place his hand inside her underwear and touch her vagina. She stated that when she tried to stop the abuse the respondent would be nasty to her and warn her against disclosing the abuse to anyone. The abuse continued despite the fact that she was sharing a bedroom with another sibling at that time.

11.     The sexual abuse of Victim A progressively became more severe in nature. The respondent began dragging Victim A on top of himself while he was in bed with her. Using his own hand, he would then rub his penis underneath her. On one occasion when her mother was not present in the home, the respondent got on top of Victim A, held her down by the hands and licked her face. Victim A screamed, which awoke her infant sister, Victim B, and stopped the abuse on that occasion.

12.     One instance of sexual assault, which forms the basis of count no. 43 on the indictment, occurred outside the family home during a family camping trip when Victim A was 11 years of age. On that occasion, the respondent positioned himself so that he was sleeping beside Victim A in the tent and placed his hand into her underwear and touched her vagina.

13.     Victim A stated that, as the abuse progressed, the respondent would pinch her or kick her out of bed if she resisted him. When she was 13 years old and developed breasts, the respondent would sometimes rub or grab her breasts as she walked by him around the house. The abuse escalated to the respondent performing oral sex on Victim A under the bedcovers and continued on a regular basis until she was around 16 years of age.

14.     Victim A stated that despite wanting to disclose the sexual abuse, she felt unable to do so due to the control the respondent exercised over her through physical abuse. She fled the family home in early 2003 and did not return. The sexual abuse had continued to that point although she stated that it had become more infrequent at that stage.

          Offending against Victim B

15.     The offending against Victim B began in 1997 when she was around 6 years of age: this coincided with an extension being built onto their family home which resulted in Victim B getting her own bedroom. The evidence was that the rooms were configured in such a way that one would have to go through Victim A's bedroom in order to access Victim B's bedroom. Victim B stated to gardaí that she would see the respondent in bed with Victim A

16.     Victim B told gardaí that the respondent would enter her bedroom, mostly on the weekends, sometimes wearing nothing but a white T-shirt, and rub his genitals against her buttocks. The respondent would rub his hands on her breasts and chest area whilst doing so. The abuse further consisted of the respondent rubbing his hands on Victim B's vagina and over her underwear and licking her ear. The respondent also grabbed Victim B's hand and placed it on his penis. This pattern of abuse continued on a weekly basis until Victim B was 13 years of age. Victim B stated that she was too terrified to resist, or try to stop, the abuse during this period.

17.     Both Victim A and Victim B described the aforementioned patterns of abuse becoming normalised throughout their childhood. Similarly, both stated that the respondent told them not to disclose the abuse to anyone and threatened that they would suffer physical abuse if they did. The respondent controlled them through fear, isolation and physical abuse.

          Investigation of the offences

18.     Having obtained statements from each of the victims and their two brothers, gardaí attended the family home on the 4th of March 2020 and arrested the respondent on suspicion of sexually assaulting the victims. The respondent was thrice interviewed in custody but made no admissions. The respondent subsequently made partial admissions to healthcare professionals regarding his sexual abuse of Victim A, but he continued to deny sexually assaulting Victim B. The trial of the offences in this matter was scheduled for the 22nd of November 2022; however, approximately a week before the trial was due to commence, the respondent indicated that a trial would not be necessary. The respondent entered a guilty plea to 20 counts on the indictment on the 22nd of November 2022. Detective Garda Peters accepted that the plea was valuable insofar as it obviated the need for the victims to provide evidence; however, due to the fact that the plea was entered at a late stage, Victim B had already undertaken a lengthy journey from overseas to attend the trial. Detective Garda Peters further confirmed that the respondent had no previous convictions.

          Personal circumstances

19.     At the date of sentencing, the respondent was 61 years of age. He is married and reared four children with his wife; following the investigation of these offences, his wife moved out of the family home but still visits him occasionally by evening. The respondent was moved out of the family home at a very young age to live with a paternal cousin to help her nurse a sick relative and assist with the running of her farm. The respondent left school after completing his intermediate certificate to complete an apprenticeship and subsequently qualified as a mechanic and he has worked full-time on his farm since his twenties. It appears the respondent was involved in serious road traffic accident in 1984; two people were killed in the collision and the respondent sustained a head injury.

20.     The judge (as do we) had the benefit of a pre-sanction report from the Probation Service as well as a psychological report from Forensic Psychological Services. Although we cannot set out the contents of either report in extenso, it suffices to state that both reports indicate that the respondent accepted only partial responsibility for his offending behaviour (he continually denied sexually abusing Victim B and disputed the frequency of his abuse of Victim A and other contents of the Book of Evidence), demonstrated poor insight into the impact of such offending on the victims and attempted to minimise his own responsibility by blaming others and focusing on external factors. The various tests undertaken and referred in each of the reports placed the respondent at low to moderate risk of re-offending. In his plea in mitigation, counsel for the respondent indicated that it might be apparent from the contents of the reports that the respondent had experienced a "change of heart" regarding his plea; however, he re-iterated that the respondent desired to maintain his guilty plea in respect of the relevant counts relating to both victims. Counsel for the respondent, on instructions, expressed an apology to both victims and indicated that the respondent had offered to make €10,000 available to the victims—which they declined to accept.

21.     The probation and psychology reports make singularly unimpressive reading from the respondent's point of view. Whilst he accepted that he offended against Victim A it is clear that he untruthfully minimised it and denied altogether the offending against Victim B. The suggestion is made that he was a person of modest intellectual capacity but given the gross nature of the offending even if that was so it could not have the slightest effect on his culpability since he must have understood the seriousness of what he was doing. In any event the last thing which he showed was remorse. This undermines the proposition that he was remorseful, and any conclusion to the contrary is highly debatable. He was a qualified mechanic and a farmer: this is at odds with any significant cognitive limitations. The judge took what might be described as the most benign view possible of his personal circumstances. Obviously, expressions of remorse or apologies by counsel on instructions can have little weight because of the ease with which such instructions can be given when an individual is confronted with serious consequences. The judge also seemed to have some regard to a supposedly difficult childhood which is not borne out by the evidence, a poor marital relationship and episodes of depression which do not appear to be of particular severity.

Victim impact

22.     The judge (as do we) had the benefit of victim impact statements which were read by each victim at the sentencing hearing on the 23rd of March 2023. We cannot, due to their length, set out either statement in extenso; we endeavour to set out some salient aspects of each statement below.

23.     In her statement, Victim A described her struggle to accept and acknowledge the deep and profound emotional damage the sexual abuse she suffered has caused her throughout her life. She stated that the abuse affected her ability to engage and interact socially with others and denied her the opportunity to develop emotional friendships and relationships. In one particularly poignant passage Victim A stated:

               "Not only was my innocence taken away, but my privacy was also invaded and my true potential to mature and develop emotionally were greatly impacted.  I was abused and robbed of my childhood for almost 10 years.  At 19, I could no longer live in an environment where every ounce of my existence was made intolerable.  I had to get away from him.  Because of this, I was then ostracised and alienated from the family home, emotionally and financially.  The intent of this, to make me continue to suffer for having the strength to walk away.  On any occasion where I would reenter the family circle, there was always a sense of fear, dread and unease because of him.  As a young adult I felt as an empty shell with no purpose or sense of being or belonging."

          She then proceeded to describe the emotional, financial and practical difficulties she experienced in the years following her decision to extricate herself from the family home—especially how it impacted upon her ability to complete third level education at the time. Victim A described a particularly difficult period in her life when her marriage ended and was experiencing suicidal thoughts and stated: "All I wanted was a home to go to, somewhere to feel loved, to feel at home, but I did not have that because of him.  Once again, I had to find my own way, start out all over again." She then described some of the factors behind her decision to report the abuse to an Garda Síochána and explained that she has since become a mother to two little girls and that:

               "...I now understand and I know more than ever what the role of a parent should be.  It is to protect, nourish and nurture them, to keep them safe from any danger and to help them become the best version of themselves.  I want to be an example to them to always speak the truth and to stand up for what's right in this life.  It deeply angers me to know I was not given that same protection, that one individual deemed that it was okay to take that away from me..."

24.     In beginning to explain the impact that the respondent's actions had upon her, Victim B stated that:

               "For as long as I can remember, I have been afraid of my father.  From a toddler, I received regular beatings, witnessed my mother and siblings being beaten, waking up in the night to screaming and shouting and was subject to violence that a child should never have to see.  This violence from my father was who he was.  It was not fueled by alcohol or drugs or any other substance.  It was who he was as a person and he thrived on having a household who feared him, that he could control, manipulate and abuse.  He controlled my life.  I went to school and home and maybe the supermarket with my mother and that was pretty much it.  In primary school, I was not allowed to join any sports that had training or matches after school, music lessons or go to any birthday parties that my friends had.  This made school life very difficult.  I felt isolated and like I could not escape the abuse.  As a child, from the age of six until I started secondary school he sexually abused me.  I was terrified to tell anyone out of fear.  I dreaded going to sleep at night knowing what I may wake up to the next morning.  As a child, I believed that it was my fault that he was doing this.  I felt like there was something wrong with me."

          Victim B described how the sexual abuse she suffered led her to lack confidence in herself and experience feelings of shame and worthlessness. She described how, when she was still a young adult, she moved out of the family home to live with Victim A with the help of a friend. She detailed some of the difficulties she experienced during her early adult life as a result of this but stated that she developed a closer personal relationship with her sister, Victim A, during this period as a result of Victim A putting her up and providing for her like a parent. Victim B described experiencing "nightmares, flashbacks and ongoing stress and anxiety" (among other issues) into adulthood as a result of the sexual abuse she suffered.

Sentencing remarks

25.     The judge stated that the primary mitigating factors available to the accused were his plea of guilty and his remorse (which was proffered at a late stage).

26.     Regarding the plea of guilty, the judge accepted that respondent eventually made only partial admissions to some of the abuse a few days prior to the trial date and that his plea of guilty had obviated the need for the victims to provide evidence at trial; however, she also acknowledged that by the time the guilty plea was entered Victim B had already undertaken a lengthy journey back to Ireland from overseas. The judge further remarked that, somewhat unusually for a case involving abuse of this kind, had the matter progressed to trial, evidence could have been called to corroborate some of the incidents of sexual assault (although in fact there was evidence sufficient to corroborate all of them).

27.     Regarding the apparent remorse of the respondent, the judge noted that the respondent wished to convey, through his counsel, his "wholehearted" remorse for what he did to both victims and also recognised that the respondent had offered a sum of money to the victims, although the victims were not in a position to accept. She also noted that there were several aspects of both the probation report and psychologist's report which were not indicative of "fulsome" remorse on the part of the respondent, including attempts on his part to negate or minimise his offending; as stated, inter alia, by the judge:

               "The issues which arise on foot of the psychologist's report and the probation report are that he appears to be somebody who is very self-involved, in that he was concerned about himself and his own reactions rather than perhaps showing empathy for his victims.  And that that's something where the Court was addressed, that perhaps the fact that his cognitive function is at an extremely low level and that that's discussed perhaps in both reports also, ins something that should be taken into account when the Court reads those two reports, and his own complicated upbringing, and the unhappinesses that he has experienced in his own life.  Once again, it's clear that he's very happy to focus on what others have done wrong to him or how he feels others are responsible for his problems.  But there's perhaps a minimisation or a lack of understanding of how much he's the author of his own issues."

          The judge acknowledged that, in his plea in mitigation, counsel for the respondent indicated that the respondent "doesn't stand over what was said in those reports" and that "he fully accepts his responsibility".

28.     The judge also took the view that the respondent had experienced a "difficult childhood" and had some unhappy periods in his adult life—which included some difficulties in his marital relationship. She noted that it appeared from the psychologist's report and the probation report that the respondent had suffered periodic episodes of depression in the aftermath of the road traffic accident and has experienced mental health issues in relation to that.

29.     The judge identified the aggravating factors in the following terms: -

               "The aggravating factors are the significant breach of trust with regard to his young daughters; the fact that there are two complaints and that this took place on an extremely regular basis for both of these girls during the time period where the offending behaviour took place, over a long number of years for each of them.  They lived in terror and there were a number of ways in which the offending behaviour took -- was carried out, and they are serious offences before the Court."

30.     The judge observed that the sentencing regime for the offences charged against the respondent changed during the course of the respondent's offending behaviour. She noted that the maximum sentence which could be imposed for offences which occurred before 2001 was 5 years' imprisonment. Regarding the offences which occurred from 2001 onwards, the judge observed that the maximum sentence of imprisonment was 10 years for the sexual assault of persons aged 17 or older and 14 years for the sexual assault of persons under 17 years of age. The judge accordingly noted that: a penalty of 5 years' imprisonment is applicable to counts nos. 1–36, 43 and 44–62; a maximum penalty of 10 years' imprisonment is applicable to counts nos. 63–74; and a maximum penalty of 14 years' imprisonment is applicable to counts nos. 37–42.

31.     The judge proceeded to sentence the respondent, inter alia, as follows: -

               "Counts number 37 and 42, and then in relation to [Victim B], it's counts number 65, 69 and 74.  So, what the Court intends to do is to find that in relation to each of these offences, that there is a headline sentence of four and a half years.  The most significant matter which the Court takes into account is that of the plea of guilty and the late remorse which appears to now be shown.  And as I say which I hope assists the complainants with regard to moving forward, but which the Court has to take into account as mitigating circumstances.  What I am going to do is, in relation to [Victim A], on counts number 37 and count number 42, I'm going to impose a sentence of three years.  In relation to [Victim B], counts number 65, 69 and 74, I'm going to impose consecutive sentences of three years in relation to each of those counts.  But bearing in mind the principle of totality and the global principle which the Court must take account of for all matters, I'm going to then reduce those sentences to 18 months.  So, I hope [Victim B] understands that it is a sentence which is being imposed.  Each of the counts are as serious as each other and there is a separate consecutive sentence being imposed in relation to her offences.  But bearing in mind the principle of global sentencing, they are being put on top as an extra 18 months.  So, the total sentence to be served is of four and a half years, being three years in relation to counts number 37 and 42, and in relation to counts number 69 -- 65, 69 and 74, that there is an additional consecutive sentence of 18 months in relation to each of those sentences.  Clearly, they're then concurrent to each other, with the first two counts being concurrent to each other.  All remaining matters are to be taken into consideration."

Grounds of application

32.     The appellant relies on the following grounds in support of her application: -

1.       The learned Sentencing Judge erred in fact, law and in principle in imposing unduly lenient sentences in all the circumstances.

2.       The learned Sentencing Judge erred in fact and in law in that she failed in respect of all counts to nominate a sufficiently high headline sentences bearing in mind the aggravating factors and, in particular, the effect of the offending on the victims.

3.       The learned Sentencing Judge erred in fact and in law and in principle in reducing the sentence nominated in respect of the offending against the second victim [Victim B] (counts 44, 49, 53, 57, 61, 65, 69 and 74 - all counts of sexual assault), to take into account the principle of totality. The sentence proposed to be imposed of three years' imprisonment in respect of the offending against this victim, to be made consecutive to the sentence of three years imposed in respect of the offending against the first victim [Victim A] (counts 1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 42 and 43 - all counts of sexual assault) was not so severe that it merited the reduction of 18 months allowed, or any reduction in respect of the principle of totality.

4.       The learned Sentencing Judge erred in fact, law and principle in failing to impose consecutive sentences in respect of each of the offences occurring against each of the victims, in addition to making the sentences imposed in respect of each of the victims consecutive. The offending in respect of reach individual victim continued throughout their childhood, and should have been marked by the imposition of consecutive sentences given the length of time the offending continued for and given the frequency of the abuse.

33.     In his written submissions, counsel for the appellant summarised the aforementioned in the following terms: -

i.        That the sentence(s) is unduly lenient given the circumstances of the case.

ii.       The headline sentence nominated in each case is too low, bearing in mind the aggravating factors present in the case.

iii.      That having determined to impose sentences of three years in total in respect of the offending against [Victim A], with a consecutive three-year sentence in respect of the offending against [Victim B], a total custodial sentence of six years, the learned sentencing judge erred in reducing the sentence to consider the principle of totality. A sentence of six years in respect of offending of this nature would have been already lenient and did not require a further reduction of 18 months.

iv.      That given the significant prolonged nature of the abuse, in each case, the sentencing court should have considered, in addition to making the sentences in respect of each victim consecutive, some element of consecutive sentencing within the sentences imposed in respect of the individual victims.

34.     The core submission of the respondent was that the sentence ultimately imposed was within the margin of discretion of the trial judge and that having regard to the authorities as to how this Court should approach applications for review of sentence on grounds of undue leniency that we should not interfere unless the Director (on whom the burden of proof lies) shows that any leniency (and it is accepted that the sentence is lenient on any view) is "undue". It is said that the sentence is unusual but that this does not amount to undue leniency.

Discussion and analysis

35.     We think that there was an error in principle. We think that these offences are very grave. Two children, daughters of the respondent, were sexually abused by him over many years—where Victim A is concerned the offending was over approximately 11 years; we do not of course diminish the seriousness in comparison of the prolonged offending against Victim B over a period of approximately 7 years by referring to this fact. Both victims were extremely young, but the younger the victim the more serious the offending. The respondent exercised coercive control over his family by the use of violence towards the victims as can be seen from the victim impact reports. So powerful was he in the family context that his eldest daughter was able to extricate herself from the abusive situation only in her early twenties. This is a classic case for the imposition of lengthy custodial sentences which must be made consecutive if the sentence is to be proportionate to the crimes.

36.     We think that in the first instance the judge fell into an error of principle in the headline sentences which she nominated. Thereafter the extent to which she mitigated those headline sentences and the manner in which she addressed the question of totality compounded that error of principle. We think that the judge failed to impose a proportionate sentence. We accordingly quash the sentences. We now proceed to re-sentence.

37.     We do so on the basis of the material which was before the sentencing judge, two letters of the respondent addressed to "Eric", dated the 23rd of March 2025 and the 3rd of April 2025 respectively, presented to us in which he inter alia accepts guilt, asserts remorse and refers to his worthwhile activities in prison: in our view these are the salient points in that correspondence (we do not think that we need say more). He also furnished a note purporting to be a report on his behaviour in prison of a positive kind and we accept its veracity. Counsel also told us, and again we accept this, of those worthwhile activities and otherwise as to his good record in prison.

38.     We propose to approach the matter thus: we will distinguish between Victims A and B. In respect of each we will sentence on a global basis.  The approach must be different as between the groups of offences committed against each because the maximum sentence for the offences against Victim A is 10 years and against Victim B is 14 years. We think that the appropriate headline sentence in respect of the offending against Victim A is 9 years' imprisonment (on counts attracting a maximum sentence of 10 years) and that the appropriate headline sentence in respect of the offences against Victim B is the same (on counts attracting a maximum sentence of 14 years). We find ourselves reaching the latter conclusion because of the fact that the maximum sentence in respect of the offending against Victim B is higher even though the offending went on for a shorter period and does not appear to have been quite as odious in her case as that against Victim A. We think that the mitigating factors, if each was to be taken on a free-standing basis, and in particular the pleas of guilty would give rise to a post-mitigation sentence of seven and a half years in each case with, of course, provision for such sentences to be consecutive. Accordingly, the appropriate sentence would be one of a cumulative period of 15 years but thereafter one must apply the totality principle. Applying that principle, we impose actual sentences of 6 years' imprisonment in respect of count no. 37 and 6 years on count no. 65. Each of these sentences would, if taken in isolation, be disproportionately low but having regard to the principle of totality we must reduce them so that a proportionate sentence in all the circumstances is imposed. We wish to make clear that we also take into account the age of the respondent. The fact that he has not been convicted of other offences is not relevant on the present facts. We take into account both aggravating and mitigating factors as the facts presently stand but we do not think that they need to be reprised here beyond what we have said.

39.     We mark counts nos. 1, 5, 9, 13, 17, 21, 25, 29, 33, 42 and 43 as taken into consideration on the sentence imposed on count no. 37 and counts nos. 44, 49, 53, 57, 61, 69 and 74 as taken into consideration on the sentence imposed on count no. 65.

 

 

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