Composition of Court: Hardiman J., White J., Hanna J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Quash sentence, impose sentence in lieu
Outcome: Quash sentence & impose new sent.
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THE COURT OF CRIMINAL APPEAL
Hardiman J. 166 CJA/03 White J. Hanna J.
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993,
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS v. PAUL MOORE
JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 20th day of December, 2005.
This is the D.P.P.’s application for a review of a sentence of six years imposed on the respondent Paul Moore, on the grounds of undue leniency. In a previous ruling delivered on the 31st January, 2005, this Court held that the sentence appeared to be unduly lenient, and that this in turn related to an error of principle in the sentencing process viz. the failure of the learned trial judge to address the severe conflict in the medical evidence called on behalf of the respondent and that called on the part of the prosecution. The Court therefore decided to proceed to impose an appropriate sentence by itself embarking on a consideration of the medical evidence. This was done by a consideration of the medical reports and by the hearing of vive voce evidence on the 1st and 2nd November, 2005. In fact on that day the Court was asked to hear not merely the medical evidence but also the oral evidence of a number of members of the respondent’s family.
On the 21st July, 2003, the respondent, having pleaded guilty to two counts alleging respectively rape and assault causing harm was sentenced to six years imprisonment in respect of the rape count and three years imprisonment in respect of the assault count. There is no application before the Court to review the sentence on the assault count.
The rape count alleged, in the particulars of offence, that between the 27th July, 2001 and the 28th July, 2001 at an apartment in the North Inner City, the respondent raped a named woman.
Particulars of the rape.
From the evidence heard before the learned trial judge it appears that the rape exhibited a number of unusual features. The victim was a musician engaged to play at a public house in the North Inner City. She was approached by the respondent and offered a drink, which she accepted. They had quite a lengthy conversation over further drinks during which the respondent told her a false story to the effect that he had been engaged to a girl for five years but she had died in his arms. He was wearing a religious medal and spoke of his religious beliefs. They left the public house they were in and went to another nearby premises. They left there, the victim with the intention of getting a taxi and the respondent carrying her bag. He said he wanted to give her a book, having previously discovered in conversation that she always read when on buses. They went to his apartment which was quite nearby and had some tea. The respondent then made approaches to the victim, which she rebuffed. He then forcibly undressed her and indecently assaulted her. This culminated in his raping her orally and vaginally. In the course of the assault he invited her to sign a document he had written to the effect that she had consented to intercourse. She signed in a false name. She managed to escape by indicating that she wanted to go to the toilet and taking the opportunity to run out of his premises, naked or nearly so, and eventually getting access to a nearby apartment.
On being interviewed by the Gardaí the respondent said that they had consensual intercourse after she had signed the note referred to, which he said she did voluntarily. He said she had taken her own clothes off and had not objected to intercourse. He said that he had got angry because he had been unable to ejaculate and that this precipitated her flight. He admitted he might have grabbed her by the hair as she fled: a clump of her hair was found near the flat.
This, obviously, amounted to a serious rape and assault to which the applicant pleaded guilty. His position was further exacerbated by his prior record.
The applicant had four previous convictions of which two were for sexual offences. According to the evidence given before the learned trial judge the latter were as follows:
On the 27th July, 1995, the respondent was sentenced to seven years imprisonment for an offence of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990 and to two years imprisonment for an offence of sexual assault contrary to s.2 of the same Act, and two years imprisonment for the offence of causing grievous bodily harm contrary to s.20 of the Offence against the Person Act, 1861. These sentences were concurrent and dated from the 1st October, 1994.
On the 6th February, 1996, the respondent was sentenced to one year’s imprisonment for an offence of sexual assault, to commence at the expiry of the seven year sentence above.
There is no doubt that the respondent had been involved in a serious road traffic accident in December, 1982, when he was fifteen years and ten months old. He was awarded damages as a result of this accident and was at the same time made a Ward of Court. There is still a substantial fund being administered for him in this connection.
In this accident he sustained fractures to limbs and a severe closed head injury. The evidence from the accused’s family was to the effect that his personality changed remarkably in the aftermath of this incident and in particular he became violent and uncontrolled. It is difficult to reconstruct precisely what history was given at the time as to his pre-accident personality: the family members say that it was perfectly normal and that he was a pleasant co-operative young person. A note in May, 1983, by a junior doctor on the team of Mr. Boyd Dunlop, the Orthopaedic Surgeon, noted that “His mother does describe that he had some psychological problems prior to the original accident”, but this was denied by the mother in evidence to this Court. A psychiatric report of Dr. Art O’Connor in February, 1995, summed up the position as follows:
“It seems to be agreed that he suffered a personality change following his head injury which resulted in many behavioural abnormalities. It seems also to be accepted that he had personality difficulties before the accident”.
There is also dispute as to the family psychiatric history which is difficult or impossible to resolve at this distance in time. It was undisputed, however, that his father, who himself gave evidence before the Court, had for many years a very severe drink problem, though he is now abstinent.
The sentencing hearing.
At the hearing before the learned trial judge a number of family members gave evidence. So too did Dr. Kieran O’Driscoll, Consultant Psychiatrist, on behalf of the respondent and Dr. Harry Kennedy, Consultant Psychiatrist, on behalf of the Director. Neither in the Court of Trial nor on this appeal was there any challenge to the expertise and experience, and indeed distinction, of these two practitioners in their fields. Dr. O’Driscoll is a Neuro-psychiatrist and Dr. Kennedy a Forensic Psychiatrist attached to the Central Mental Hospital.
Moreover, each of these doctors had access to a very great volume of reports and notes from other doctors and persons in cognate professions, from 1983 to the present time. Some of these were generated in the aftermath of the accident, and some in the course of the respondent’s involvement with the Criminal Law, and consequential medical exposures. There are reports from at least nineteen separate professionals on the file of documents handed to the Court and there was also evidence and notes from the family general practitioner.
On the basis of the medical evidence the defence contended that the respondent was entitled to substantial mitigation by reasons of the consequences of his head injury. Mr. Hartnett submitted that this led to a personality change which rendered the respondent less well able to control himself, “made him irritable and impulsive and less well able to control himself, particularly when combined with alcohol”.
Dr. O’Driscoll considered that his altered personality had led to social isolation, and left him vulnerable “or at risk of behaviour, such as drinking alcohol when he cannot cope with the consequences of the alcohol and [prone to] explosiveness or extremeness of behaviour, both in terms of disinhibition and in terms of an aggressive component”. He was also, said Dr. O’Driscoll, unable or less able to empathise that the effect of his behaviour on his victim than a normal person would be. The formal diagnosis would be of “Organic Personality Disorder”.
Dr. Kennedy, on the other hand, was not disposed to concede that the head injury was the cause, or the exclusive cause, of the respondent’s problems. He did not, of course, deny that the respondent had suffered a very severe head injury in his mid-teens but said that there were indications of aberrant behaviour prior to this. More importantly, perhaps, he did not agree that the facts of the present case indicated either disinhibition or impulsivity but on the contrary showed normal levels of perception and an ability to plan towards an intended consequence. He said that what the respondent exhibited was not impaired capacities, but particular strongly held beliefs and opinions particularly about women and interactions with women. He said, in fact, that Mr. Moore’s presentation was “very much similar to a great majority of other people accused of offences of this sort and with a history of similar offences”. He considered that any effect of the head injury was now, and for some considerable time, spent. He emphasised that there was no evidence of focal brain damage.
In imposing sentence, the learned trial judge said, having outlined the facts of the case:
“We have extensive evidence from very high calibre witnesses in this case, but the starting point is that it is not disputed that the accused has criminal liability. There are mechanisms for seeking to exempt a person from that, and that route has not been pursued in this case. The starting point is that he had his criminal liability for his actions.
Essentially it is being suggested that he needs a very particular regime. He needs a therapeutic environment with a psychological input. He needs neuro rehabilitation and that none of this is available within the prison system and possibly or indeed probably not within this country. It is well settled that these are matters for the Executive and they are matters for the Minister to consider and to be brought to his attention.
I have to sentence the accused on the basis of criminal responsibility for the particular crime that is before me. As I indicated having regard to his history of brain damage I am sparing him a sentence of twelve years which I otherwise certainly would consider in this case. I also consider myself bound to impose it having regard to the dicta of the current Chief Justice”.
Earlier, having distinguished the case on its facts from the case of Robert Melia, the learned trial judge had also stated:
“I am taking account of the fact that the accused has suffered such a brain injury as has kept to date a Ward of this Court”.
Melia’s case, was one in which a sentence of nine years imprisonment for rape committed by a person who had a previous conviction for rape was increased to twelve years on the Director’s application for review.
Matters agreed. On the hearing of evidence before this Court, it was agreed, firstly, that the onus of establishing the matters said to constitute mitigation lay on the respondent. Secondly, as noted by the learned trial judge, it was agreed that the respondent had criminal capacity and was not legally insane.
Aspects of the medical evidence.
A number of aspects of the medical evidence require comment. First, Dr. O’Driscoll’s evidence at the trial had been heavily based on the findings of a psychologist, Dr. Simone Carton, who was not herself called. She did however give evidence in this Court. Secondly, an MRI image commissioned by Dr. O’Driscoll in the early part of 2003 was discussed between the doctors. It was agreed that the scan did not show any frontal lobe brain damage, or any focal injury. The indications described by Dr. O’Driscoll in requesting the MRI were not before the Court, and he could not remember them with any precision. He did however concede that he “would have been looking specifically for focal injury in the left frontal lobe and for evidence of any orbital front lobe brain injury”. There was in fact no demonstration of focal injury at all. Its presence would, in Dr. O’Driscoll’s view, have supported his theory of disinhibition and aggression caused by the head injury of 1982. But its absence did not outrule that state of affairs: you might, he thought, get the same result from a diffuse injury. Dr. O’Driscoll speculated that perhaps the imaging itself was not perfect and more specifically focussed scans might have been taken, but none such were requested by him. There was a finding of atrophy or shrinkage of the brain and the cause of this was one of the foci of disagreement between the doctors.
Role of heavy drinking.
Dr. Kennedy was firmly of the opinion that the most likely cause of this atrophy was prolonged heavy drinking. Dr. O’Driscoll discounted this for a number of reasons including “I have no evidence that he has ever had to be detoxified or was admitted with alcohol problems so there’s no medical report”. That being so, he attributed the shrinkage to the head injury. He accepted there was no C.T. scan report known to him dating from the time of the injury. He denied that the respondent’s alcoholic history was consistent with having suffered brain shrinkage as a result, “in keeping with the other clinical evidence”. It was put to him that a feature of almost every report which had been done on the respondent was that he had an alcohol problem. He said that his understanding was that he had a problem with occasional binge drinking. A more likely cause of brain shrinkage would be chronic drinking. Mr. Moore’s own account of his drinking given to Dr. Kennedy was put to Dr. O’Driscoll, who admitted that he had not himself taken any such history at all from Mr. Moore. He agreed that it “might have been something worth enquiring into”.
There is no doubt whatever but that Mr. Moore gave a history to many practitioners of constant and serious over indulgence in alcohol. He told Dr. Mohan, for example, that he was willing to join Alcoholics Anonymous. He was advised by Dr. Charles Smith in 1989 that abstinence “is the only available course” but would not accept this and complained of a life of monotony and boredom and that “the only thing that enlivens it is alcohol”.
It further transpired in the course of the evidence that Mr. Moore at the age of about 28 was diagnosed with liver damage almost certainly due to alcohol. In the late 1980s he was referred to Dr. John Cooney and complained of “significant symptoms [such] as black outs, loss of control and withdrawal symptoms”.
It is impossible on the evidence to support the proposition that there was no medical record of chronic alcohol problems.
The difference between Dr. Kennedy’s evidence and that of Dr. O’Driscoll on this point was that the former had, and the latter had not, carefully investigated the history of this man, of the present crime, and of his previous sexual crimes. A failure to consider that history specifically, and a consequential tendency to give evidence at a level of generality, was also a feature of the evidence of Dr. Carton, the psychologist whose reports fed into those of Dr. O’Driscoll.
Nub of the dispute.
Dr. O’Driscoll’s evidence was that this man suffered from organic personality disorder as a result of the accident and that this had, amongst other things, caused him to be disinhibited and aggressive. This was demonstrated in the facts of the current offence. On that basis, counsel submitted that his moral guilt for the offence was less than that of a person without organic brain disorder and the sentence should be mitigated accordingly.
Dr. Kennedy, on the other hand, examined in very considerable detail the criteria for a diagnosis of organic personality disorder and concluded that they were not met in the respondent’s case. Strikingly, he examined the history of the respondent in very great detail, including the precise details both of this offence and of the earlier rape offence of which he was convicted. On this basis, he concluded that the offence demonstrated in the respondent elements of planning, of self restraint, of social competence and sensitivity to nuance. He also considered that the facts of both rapes showed a capacity to plan and to use violence only in a controlled way i.e. not wildly but focussed on the purpose he intended that is sexual gratification.
On the other hand, neither Dr. O’Driscoll nor Dr. Carton had any but the most general appreciation of this offence, and none whatever of the previous one. Asked whether he had acquainted himself with the detail of the earlier rape Dr. O’Driscoll said “I didn’t have the information at the time”. He said he was not retained to enquire into previous offences in a forensic capacity.
Dr. Carton, asked why she had not found out the facts of what Mr. Moore was alleged to have done, and contrasted that with his account given to his medical advisers said:
“There wasn’t a reason. I read… I was given a copy of the transcripts that were given to the High Court and there was information in that and I actually asked to see the Book of Evidence but unfortunately there wasn’t a copy of it. Now, that was just over the weekend.”
She agreed that the methodology adopted by herself and Dr. O’Driscoll, on the one hand, and by Dr. Kennedy on the other seems strikingly different. She further agreed that she was giving evidence about “what often happens to people who have a trauma and drawing attention to ways in which it is consistent as what happened in Mr. Moore’s case”.
Dr. Kennedy, on the other hand argued in a detailed way that the facts of the case, firstly, were strikingly similar to those of the last rape. They showed such common features as a period of chatting to the victim during which her confidence was gained; a “sob story’ about the death of a previous girlfriend; a plausible pretext to get the victim back to his flat (the book in this case, a request to come and meet his (non-existent) mother in the premises in the other).
In Dr. Kennedy’s view these features were not consistent with impulsivity or aggression which was difficult or impossible to control. They were consistent with planning, with a careful and thought out approach and with an ability to control himself, not merely by refraining from gross behaviour in the early stages but by charming and winning the victim.
In the view of the Court Dr. Kennedy’s evidence at this point is much more convincing than that of Dr. O’Driscoll and Dr. Carton, fundamentally because it seeks to demonstrate the truth of Dr. Kennedy’s view from the facts of the case, as well as theoretically.
Equally, the Court is more impressed by Dr. Kennedy’s view on the proposition that the consequences of the brain injury are effectively spent. His survey of the available medical records was extraordinarily detailed and painstaking: he appears to have commented on every one of them. He has, in particular, pointed to a number of references in the early medical reports to “psychological problems” or cognate symptoms existing before the accident: Dr. Carton, by contrast “hadn’t made the connection in the report” and therefore did not ask the mother about what she was said to have told Mr. Boyd Dunlop as to pre-accident psychological problems. The same seems to have applied in the case of Dr. O’Driscoll.
Apart from this, the Court is naturally influenced by the fact that the MRI scan which was expected or hoped to demonstrate the focal injury which was the most obvious support for Dr. O’Driscoll’s theories did nothing of the kind. The fall back theory was that one might have similar consequences from a diffuse injury and that the shrinkage of the brain demonstrates a continuance of the brain injury. This is unconvincing by reason of the lack of specificity to the facts of this case and because of the failure to investigate alternative causes of the shrinkage.
Conclusion on the medical evidence.
It is not the role of the Court to endorse the view of one practitioner and condemn that of another. On the contrary, the role of expert evidence is to put the Court in a position itself to reach a conclusion on the relevant issues. Having regard to the observations made above about the medical support for the rival theories, and bearing in mind that the onus of proof rests on the respondent on this matter, the issue falls to be decided against him. The effect of this is that the respondent has not established the proposition for which he contended, that his moral guilt for this offence is reduced by reason of it being caused in whole or in part by an organic personality disorder, itself the consequence of a brain injury some twenty-three years ago.
The appropriate sentence.
Having resolved the principle issue in dispute between the parties, the Court can now approach the question of the appropriate sentence.
After the Court had intimated its decision on the medical issue on 20th December, 2005, Mr. Ó Braonáin for the respondent sought a further adjournment, to allow him to call evidence as to the prospects for rehabilitation.
We refused this application. This was not because (though it is the case) there was a good deal of evidence of that sort on the Transcript of the sentencing hearing. Equally, it was not because any such evidence could have been put before the Court yesterday. It was because the Court considers that the question of a rehabilitating regime, medical or otherwise, is a matter with the remit of the Executive and not of the Court. The Executive is entitled to take such advice as it wishes on this issue, and to entertain any representations. The fact that the Court has preferred the evidence of the State’s medical witness to those of the respondent does not preclude the State from considering the views of the latter on rehabilitation.
This was a grave offence of rape involving elements of both trickery and force and what must have been a terrifying level of violence when the unfortunate victim attempted to escape. Moreover it was committed only about a year after the respondent’s release from prison for another rape offence which, as we have seen, showed features of striking similarity. That offence had merited a sentence of six years.
It is in our view inescapable that a sentence for a second, quite similar, offence committed in such close proximity to the release from the sentence for the first, must be greater than that for that first offence. Moreover, there are few mitigating factors. The plea of guilty was a late one. The details of the offence (in particular, the proffering of a perverse sort of consent form), seems to indicate an attitude of self interested literal mindedness in relation to the woman who had been the victim of the respondent.
The Court considers, however, that the learned trial judge was entitled to distinguish the facts of this case, rather narrowly, in the respondent’s favour compared with those of Melia. Melia’s case is otherwise a reasonable comparator. We consider, therefore, that the appropriate sentence at the time of trial would have been one of eleven years. The respondent is entitled to some reduction of this total by reason of having been awarded a substantially lesser sentence and enduring the tension and anxiety caused by this application. In all the circumstances, therefore, we consider a sentence of ten years imprisonment, commencing from the date of the commencement of the original sentence, to be the appropriate sentence in all the circumstances of this case.
The question of the regime, medical or otherwise, appropriate to the applicant is a matter for the Executive and the Court makes no observation on it. We would however say (without discounting a possible role for medical treatment) that this man seems to us to have manifested a tendency to “medicalize” his propensity to commit violent rapes. We have evidence that he would benefit from some sort of medical or cognate treatment but we must point out that, with or without such treatment, the responsibility for these violent crimes is wholly his own as is the responsibility to abstain from them when he is released from the present sentence. Quite clearly a third offence of this sort would attract a very long sentence indeed.