Judgment Title: D.P.P.-v- John McCabe
Composition of Court: Kearns J., Budd J., Mac Menamin J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Refuse application
THE COURT OF CRIMINAL APPEAL
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the court delivered by Kearns J. on the 13th day of July, 2005
This is an application brought by the applicant for a review of the sentence imposed on the respondent in the Central Criminal Court (Carney J.) on the 11th October, 2004, the respondent having pleaded guilty on the 10th June, 2004, to aggravated sexual assault on a female foreign national in Dundalk on the 13th September, 2002, the said assault being contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. At the conclusion of the sentencing hearing, and in circumstances where the respondent had offered compensation to the victim in the sum of €15,000, which said sum the victim had accepted, the learned trial judge imposed a term of 4 years imprisonment, but suspended same on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of 3 years. He also ordered that the respondent’s name be entered in the Sex Offender’s Register.
The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993, which provides:-
Shortly afterwards, within 30 minutes of this attack, the respondent was arrested by Dundalk Gardaí and immediately admitted to having done something “awful stupid - my life is over”.
He was brought following his arrest to Dundalk Garda Station where he made a full statement after caution. In the statement he recorded how he had been drinking and gambling throughout the previous day in Cootehill. Towards the end of the evening, he heard talk about a lap-dancing club in Dundalk and decided to go there. He arrived some time after midnight and remained in the lap-dancing club until about 4a.m.. He was then unable to get a taxi. In his statement he blamed the fact that he had drunk so much and the effects of witnessing lap-dancing for what had happened. The respondent is a farmer and married man who had a 2 year old child at the time and no previous convictions.
Two victim impact reports were tendered to the sentencing judge, dated 17th August, 2003, and 30th July, 2004, respectively.
From these reports it is clear that the victim was badly traumatized by the sexual assault which had lasted between 20-25 minutes. The victim had great difficulty in sleeping thereafter and felt contaminated as a result of being touched by the respondent. She would take showers and wash herself up to 5 or 6 times a day and wanted to scratch her skin off as her assailant had touched it. She attended the Rape Crisis Centre for about 5 months but didn’t find it helpful. She was diagnosed as suffering from post-traumatic stress disorder to a severe degree. She was particularly worried that people might think that she was responsible for the assault. She was prescribed medication by a psychiatrist and the later report of Michael Dempsey, senior clinical psychologist, strongly recommends that the victim engage in further counselling in relation to the assault.
In the course of the sentencing hearing on the 11th October, 2004, Michael O’Higgins, senior counsel for the respondent, advised the court that the respondent had had a problem with alcohol abuse, particularly when, as in this case, he engaged in binge-drinking, but he had remained alcohol-free since the incident. He had no previous convictions and had not since come to the attention of the gardaí in any manner whatsoever. He called his client to the witness box to apologise to the victim and to express his remorse for the hurt which he had caused to his victim. Counsel further intimated to the sentencing judge that the respondent had in court a bank draft in the sum of €15,000 payable to the victim, and advised the sentencing judge that the victim was willing to accept it.
When the plea in mitigation was concluded, the learned trial judge addressed counsel for the Director of Public Prosecutions as follows:-
Mr. Segrave: Yes, if your lordship would give me five minutes”
Thereafter in imposing sentence the learned trial judge declared the accused to be a sex offender pursuant to the Sex Offenders Act, 2001, and directed the issue of a certificate in accordance with the provisions of the Sex Offenders Act, 2001. He noted that the accused did not have a knife, but nonetheless had told his victim that he had a knife in conjunction with his demand for sex. He then continued:-
Counsel also submitted that any practice whereby the payment of compensation would preclude the imposition of a custodial sentence would lead to a variety of highly unsatisfactory outcomes. For example, certain victims might be impecunious and as a result feel constrained to accept compensation which, if they were in different financial circumstances, they might well refuse. There might also be close relatives who would exert pressure on the victim to make a decision in favour of accepting compensation contrary to the wishes of the victim. It was further submitted that any form of “cheque-book” defence culminating in an agreed payment was also highly objectionable in that it was capable of discriminating between rich and poor offenders in a totally arbitrary manner. Further, it was submitted, the terms of s.6 of the Criminal Justice Act, 1993, were quite explicit in stating that the court had a discretion with regard to compensation, to order payment of same either “instead of or in addition to dealing with [the accused] in any other way”. The learned trial judge, however, had proceeded as though he lacked such discretion or that there was a substantial body of jurisprudence or settled practice which strongly suggested that he approach the question of sentence in the manner which he had done. This was plainly incorrect and no citation of any Irish authority had appeared to suggest that this was the law in Ireland.
In reply, counsel on behalf of the respondent argued that the Director of Public Prosecutions representative should have objected at the time of sentence if objection was being taken to the practice adopted by the learned trial judge. He submitted it was unfair now to attempt to review the sentence by way of appeal when no objection to the manner in which the trial judge had intimated he would deal with the matter had been made at the time.
Mr. O’Higgins further emphasized that the payment had no strings attached, nor had there been any negotiations prior to making the payment, other than to enquire if the victim was willing to accept the sum offered. Counsel agreed that it was undesirable that a victim in these circumstances be drawn into any form of discussions or negotiations as to amount in any sort of bargaining process.
He further stressed there was no “cheque-book” dimension to the present case. The respondent was a small farmer who had liquidated his herd of cattle to raise the funds to make the compensation payment. It was as far removed from any hypothetical case of a wealthy offender buying his way out of trouble as one could imagine.
Insofar as the actual sentence was concerned, Mr. O’Higgins further argued that even if incorrect in principle, the learned trial judge’s sentence should not be interfered with. Amongst the grounds relied upon in making this argument were:-
(a) The case was now nearly 3 years old and the respondent had had it hanging over him throughout that period of time.
Section 6 of the Criminal Justice Act, 1993, provides:-
(2) The compensation payable under a compensation order … shall be of such amount … as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.
(5) In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard—
( a ) to his means, …
(13) In assessing for the purposes of this section the means of a person, the court shall take into account his financial commitments.”
The court would be strongly of the view that the payment of money cannot, of itself, be viewed as an “exceptional circumstance”. This issue was recently considered by this court in The People (D.P.P.) v. C. (unreported, 18th February, 2002). In that case, the same learned trial judge (Carney J.) had dealt with the issue of compensation offered or paid to the victim of a sexual assault by the perpetrator. In the course of passing sentence in that case the learned trial judge stated:-
Indeed, in enacting s.6(1) of the 1993 Act, the Oireachtas clearly intended that a sentencing court should have discretion when it makes an order requiring compensation to be paid by a convicted person to a victim that it be in addition to or instead of a custodial sentence and the Oireachtas conferred such a discretion on the court. The court feels that this is probably no more than to clarify the existing law as it always has been. It is axiomatic to say that in imposing a sentence the sentencing court must take into account all the relevant circumstances of the particular case. As Barron J. said in D.P.P. v. McCormack (unreported, 2000):-
A number of English authorities were briefly opened by counsel for the applicant in the course of this hearing to suggest that compensation could be directed to be paid even where a custodial sentence is being imposed, but the court is quite satisfied that it need look no further than the judgment just cited to obtain all the guidance it requires to resolve the issues before this court. The court is quite satisfied that there is no jurisprudence, principle or practice which renders the payment of compensation to the victim of a sexual assault inconsistent with the imposition of a custodial sentence. Indeed, any such supposed practice conflicts with and contradicts the express wording of s.6 of the Criminal Justice Act, 1993, which states that any direction to pay compensation may be “instead of or in addition to dealing with him in any other way.”
This court agrees with the submissions made by counsel on behalf of the applicant and would be strongly of the view that victims in circumstances of this nature should not be drawn into any sort of pro-active role in determining or negotiating the amount of any compensation which an accused person may offer with a view to mitigating sentence. The extent of the victim’s involvement should be either to indicate a willingness to accept or refuse any sum of compensation that may be offered. Thereafter, it is entirely a matter for the court to determine the appropriate sentence having regard to all the multiple considerations which must be borne in mind in this context, including any payment of compensation offered or made. It is inappropriate in the view of the court to draw the victim in any way into the decision as to the amount of sentence.
While noting the argument of counsel for the respondent that no objection was taken on behalf of the Director to the proposed course of action adopted by the learned trial judge on this issue, it is quite clear from a perusal of the transcript that the learned trial judge had in his own mind the view that there was a clear and settled practice in this regard, namely, to impose a non-custodial sentence in any case where the victim was prepared to accept a sum by way of compensation. The victim had further been informed or advised that a likely consequence of such acceptance was the imposition of a non-custodial sentence. The court views the overall approach of the learned trial judge to sentence in this case as mistaken and will hold that there was an error of principle in the manner in which sentence was imposed, such as to require this court to consider what the appropriate sentence should have been, due credit being given for the payment made of €15,000.
Despite the serious nature of this aggravated assault, the court is of the view that this case comes within the category of exceptional cases noted in The People (D.P.P.) v. NY  4 I.R. 309. In that particular case, the exceptional circumstances identified included the accused’s early remorse for his rape offence and his exceptionally honest acceptance of responsibility, including his plea of guilty and his general good character. Furthermore, as in the instant case, the accused was going to bear the stigma of being certified as a sex offender under the Sex Offenders Act, 2001. He had already served 7 months in prison, a factor which in that case persuaded the Court of Criminal Appeal to suspend the balance of the 3 year sentence originally imposed.
In the instant case, the court is satisfied that the events of the night in question were quite exceptional and that the exposure of the respondent to large amounts of alcohol and displays of lap-dancing in a nightclub in Dundalk triggered an episode which was quite out of keeping with the character of the respondent. He was at the time a married man with a young child who had never been in any sort of trouble with the law before. He was apprehended by the gardai within 30 minutes of the offence and immediately faced-up to his responsibilities and confessed his guilt. He made a full statement following his arrest in Dundalk Garda Station. He has made a full apology to his victim for the horrifying ordeal to which he subjected her. While his victim undoubtedly believed she would be raped, the evidence on the sentencing hearing was that there had been no penetration, although the victim did have some bruises and was undoubtedly severely traumatized by her experience.
Since the time of the offence, the respondent has given up alcohol completely, notwithstanding which his marriage has apparently collapsed because of the ramifications of this assault. For the purpose of raising the necessary amount to pay compensation, he sold off his herd of cattle to raise the sum offered in compensation. The victim did of her own volition freely accept this compensation which is undoubtedly a factor which the court can, and must, take into account in deciding what the appropriate sentence should be. In the view of the court, the respondent is a good prospect for rehabilitation and is extremely unlikely to reoffend for all the reasons just described.
Furthermore, he has had this hearing hanging over him for a period of almost 3 years. In circumstances where the respondent had been led to believe that a non-custodial sentence would be imposed and in circumstances where the victim indicated a willingness to accept the sum offered, the court would be of the view that fairness would require that a custodial sentence only be imposed where there had been an actual rape or some other major aggravating factor.
In the quite exceptional circumstances that obtain in this case, the court is of the view that, although the learned trial judge erred in principle in the manner in which he approached sentence, the sentence which he actually imposed was appropriate and will accordingly refuse the application.