Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- John McLaughlin

Neutral Citation: [2005] IE CCA 91


Court of Criminal Appeal Record Number: 25CJA/05

Date of Delivery: 13/07/2005

Court: Court of Criminal Appeal

13

Kearns J.
Butler J.
O’Leary J.

The respondent was convicted on the 6th day of December, 2004, when he pleaded guilty to rape contrary to s.48 of the Offences against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981.

On hearing evidence that the respondent had made available a sum of €10,000 by way of compensation, the learned trial judge imposed a sentence of imprisonment of 3 years on the respondent which he suspended for 5 years on the respondent entering into his own bond in the sum of €1,000 to be of good behaviour.

The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993, which provides:-

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court…on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.”

There was a victim impact report in court to which the trial judge was referred. In particular, the court’s attention was drawn to that part of the report which indicated that the complainant had not merely been severely traumatised following her experience but also contracted a sexually transmitted disease, chlamydia, as a result of the assault. The victim had started a new job some 4 or 5 weeks before the rape and in the aftermath of the experience asked a friend to telephone her employers and inform them she was unable to attend work because she had been raped. However, her employers dismissed her. She remained out of work for 3 or 4 months as a result of her distress over the attack. She has been in continuous employment since that time, although she attended the Rape Crisis Centre for counselling for 2 years following the rape and found it helpful. She continues to have nightmares and other upsetting thoughts and images of the rape event. The report furnished by the senior clinical psychologist reporting in this case suggests that the victim, as of January, 2005, continues to suffer symptoms of post traumatic stress disorder to a moderate degree, despite having attended counselling for 2 years. The complainant declined to exercise her statutory right to give evidence on the sentencing hearing.

On cross-examination, Garda Lynch agreed that although the plea of guilty had been entered at a late stage (i.e. on the morning of the trial), an indication of same had been conveyed by the respondent in the week prior to the trial. Garda Lynch agreed that the complainant had thus been aware from that time that she was not facing the prospect of having to give live testimony or be subjected to cross-examination.

The respondent is a young man with 3 previous convictions of a minor nature, none of them sexual offences. A booklet of testimonials of his character was handed into court. As already mentioned, the respondent brought to court by way of compensation a sum of €10,000 which the victim accepted. This acceptance took place notwithstanding the fact that counsel for the applicant confirmed to the learned trial judge that it had been explained to the complainant that acceptance by her of such sum might have a strong bearing on sentence.

In passing sentence, the learned trial judge (Carney J.) declared the respondent to be a sex offender for the purposes of the Sex Offenders Act, 2001. He specifically referred to the fact that the respondent had made available a sum of money by way of compensation and that this sum had been accepted. He also specifically stated that the complainant had been advised of the jurisprudence leaning against the combination of compensation and a sentence of imprisonment, although he noted that such combination was not excluded by statute. He further referred to the fact that in a case involving similar facts to the instant case, the Court of Criminal Appeal had found him in error in not having adverted to the possibility of the imposition of a suspended sentence in a rape case.

Amongst the grounds of appeal it was argued that the learned trial judge erred in principle in that he gave undue or disproportionate weight to the acceptance by the complainant of the sum of money offered by way of compensation. It was further submitted that the learned trial judge failed to give appropriate weight and consideration to the provisions of s.6(1) of the Criminal Justice Act, 1993, which permits the imposition of a custodial sentence in addition to the making of a compensation order pursuant to the statutory provision. It was further submitted that the learned trial judge erred in principle in failing to give adequate weight to the victim impact report which set out in detail the effects which the offence had had on the complainant. It was further submitted that there had been no early expression of remorse or honest acceptance of responsibility by the respondent. The indication of the guilty plea was conveyed only in the week prior to trial, the rape having occurred in 2001. It was further submitted that there was no good reason for not applying the principles identified in D.P.P. v. Tiernan [1988] I.R. 250.

In this court, Mr. Patrick Gageby, senior counsel on behalf of the Director of Public Prosecutions, argued that there must be exceptional circumstances to justify the imposition of a non-custodial sentence in the case of rape. He submitted that a payment of money could not “trump” the principles laid down in D.P.P. v. Tiernan [1988] I.R. 250.

He further submitted that it could not be an acceptable application of s.6 of the 1993 Act that a non-custodial regime would be brought into play for those rich enough to pay compensation but not for those who could not. Furthermore, in circumstances where a victim may be impecunious, he or she may feel obliged or want to take the money offered.

Mr. Gageby further argued that any situation in which the views of the victim are sought as to whether a sum offered should be accepted trenched significantly on considerations of appropriate sentencing policy, because the victim, in effect, thereby becomes the judge. The process of victim consultation, he submitted, elides the distinction between public and private wrongs. Mr. Gageby submitted that any practice whereby the acceptance of a sum of money by way of compensation removed the requirement of the judge to consider the imposition of a custodial sentence was an error of principle.

In reply, Mr. Anthony Sammon, senior counsel, on behalf of the respondent, argued that this was not a case where any form of “cheque-book” defence was in play. His client had had to borrow the monies for the purpose of offering the compensation in question.

He urged the court to take the view that the practice, or, more accurately, the decision of the learned trial judge in the particular circumstances was correct and the sentence should not be disturbed.

DECISION

Section 6 of the Criminal Justice Act, 1993, provides:-

“(1) Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a "compensation order") requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this Act referred to as the "injured party") who has suffered such injury or loss.

(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.”

“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”

Can the payment of money, of itself, be viewed as an “exceptional circumstance”? In the view of this court, it can not.

This issue was considered by this court in another case with almost identical facts, namely, that The People (D.P.P.) v. C (unreported, 18 February, 2002). In that case, the same learned trial judge (Carney J.) had said:-

“My experience over 35 years in the practice of criminal law is that a compensation sentence has never been mixed with a custodial sentence and the Act gives me express statutory jurisdiction to follow that long time practice in the Irish Courts and accordingly in the light of the compensation which has been paid and which has been accepted, I conditionally suspend the sentence. I want to make it clear that I would not have adopted this course had I not been satisfied that it was fully present in the mind of the victim that in the event of the compensation being accepted that the probabilities were that the matter would be dealt with non-custodially.”

When in the instant case the matter initially came before the court on the 6th December, 2004, counsel on behalf of the respondent informed the learned trial judge that a plea had been offered to the rape count. The court was further informed that an offer in compensation had been made which the victim was willing to accept. On being so informed, the learned trial judge had the following exchange with counsel for the Director of Public Prosecutions:-

“Mr. Justice Carney: Well is this victim aware that there is a jurisprudence against combining compensation with anything else?

Mr. Gageby: The victim is aware that it may be a factor, my lord.

Mr. Justice Carney: I will put it stronger than that, is she aware that there is a jurisprudence against combining compensation with imprisonment?

Mr. Gageby: Yes, my lord.”

“There is also the factor in this case that the accused made available a sum of compensation to the injured party which was accepted, and she was advised that there is a jurisprudence in courts which leans against the combination of compensation and imprisonment. I do not say it is excluded because by statute clearly it is not, but there is a jurisprudence which has leaned against it. I also take that into account.”

“Even though such a practice may very well have been extant in some courts in respect of certain offences, the court is not at all satisfied that it has been a universal practice of the courts to apply such a principle that would exclude the imposition of a custodial sentence as a matter of principle or practice in all cases where compensation has been offered and accepted by the victim.

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):-

‘Each case must depend on its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime but the appropriate sentence for the crime because it has been committed by the accused.’
Of course there are, and it is not necessary for this court to go into them exhaustively, other factors which are relevant to the sentencing process and which are daily taken into account by a sentencing court, such as the gravity of the offence, the previous record of the accused, the impact of the offence upon a victim, the prospect of rehabilitation and the need to deter the commission of such offences or crimes generally. All of these are factors which are taken into account and the payment of compensation is just one of those factors to be taken into account. It has never been, as far as this court is aware, a principle that a custodial sentence is to be excluded where compensation has been paid, nor has it ever been considered as an appropriate way to approach sentencing in this court and this court holds that it is a mitigating factor but only one of several and does not and can not in practice or in principle always preclude the imposition of a custodial sentence where that is otherwise the appropriate sentence to be imposed.”

In that case, the court considered the learned trial judge had erred in principle and it imposed a sentence of 12 months imprisonment in addition to the provision for the payment of £7,000 compensation. There were, however, many extenuating circumstances in that case, including the fact that the trial judge took a certain view of the case that it was not the most serious one of its kind and was not accompanied by some of the aggravating circumstances which often arise in offences of this nature. He took into account, as was open to him, that the accused had in that case come from a late-night shift and had in the course of a party consumed a considerable amount of drink. While that did not mitigate what took place, it did eliminate certain aggravating factors that might otherwise have been present. The victim impact report did not disclose consequences for the victim as serious as in many other cases and furthermore the respondent in that case had the prospect of a custodial sentence hanging over him for some 3 years.

This court would be of precisely the same view as that expressed in the judgment delivered by Murray J. in The People (D.P.P.) v. C, namely, that there is no jurisprudence, principle or practice which renders the payment of compensation to a rape victim inconsistent with the imposition of a custodial sentence. Indeed, it conflicts with and contradicts the express wording of s.6 of the Criminal Justice Act, 1993, which states that the direction to pay compensation may be “instead of or in addition to dealing with him in any other way”.

Thus this court is satisfied that there was an error of principle in the present case such as to require this court to consider what the appropriate sentence should have been, due credit being given for the payment made of €10,000.

The court would be strongly of the view that victims in circumstances of this nature should not be drawn into any form of proactive role in determining or negotiating the amount of any compensation which an accused person may offer with a view to mitigating his sentence. The extent of the 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.

On the matter of the appropriate sentence, the court would be of the view that, even allowing for the good testimonials as to character tendered on behalf of the accused and the fact that his three prior convictions were for relatively minor non-sexual type offences, an appropriate sentence in the circumstances of this case would have been five years or perhaps even more. However, in the circumstances which did obtain, the respondent brought to court by way of compensation the sum of €10,000 which the victim decided to accept. That is a course which she was perfectly entitled to adopt and nothing in this judgment should be taken as in any way suggesting that victims in circumstances of this nature should not retain the freedom to either accept or refuse a payment should they so wish. However, the fact that such compensation was offered and accepted is a factor which the court must take into account in arriving at a sentence which is fair and proportionate.

In this case the sexual assault involved rape and was further aggravated by the fact that the perpetrator inflicted a sexually transmitted disease upon his victim.

In those circumstances the court is of the view that an appropriate sentence in this case is 4 years imprisonment. The court will, however, suspend the last 3 years of the sentence having regard to the fact that the payment of compensation occurred in this particular case and in the circumstances whereby that payment came about. The court must have regard to the reality that the respondent was given to believe that payment of the sum in question might result in a non-custodial sentence, a factor and consideration which must have played a significant part in prompting the payment in question. Nonetheless the court is of the view that, because of the aggravating features present in this case, a custodial sentence must be imposed.