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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- G.K. [2008] IECCA 110 (31 July 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/C110.html
Cite as: [2008] IECCA 110
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Judgment Title: D.P.P.-v- G.K. Composition of Court: Finnegan J., Herbert J., Clark J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Quash sentence and impose in lieu | ||||||||||
COURT OF CRIMINAL APPEAL CCA No. 12/07 Finnegan J. Herbert J. Clark J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/RESPONDENT and G. K. APPLICANT Judgment of the Court delivered on the 31st day of July 2008 by Finnegan J. In the week preceding the date fixed for trial the applicant pleaded guilty to a count of aggravated sexual assault He was not arraigned on a second count of threat to kill contrary to section 5 of the Non-fatal Offences against the Person Act 1997 but it was agreed that this could be taken into account in sentencing. He was sentenced to life imprisonment. The Criminal Law (Rape) Amendment Act 1990 section 3 pursuant to which the applicant was charged provides as follows:
(3) Aggravated sexual assault shall be a felony.” The offence was committed about midnight between Friday the 17th September and Saturday the 18th September 2004 in a County Dublin village. The victim W.H. was born on the 6th September 1982 and was then 22 years of age and lived in the same village as the applicant. She was then a shop assistant and having completed her day’s work on the Friday evening socialised with her workmates before getting a bus to her home. Her intention was to visit the home of a friend in the village and before doing so she stopped at an off-licence and having made a purchase proceeded to walk towards her friend’s house. As she was passing some waste ground the applicant came up behind her, put one hand over her mouth, another about her waist and forced her into an area of waste ground. He threatened her that if she made a noise he would “slice her” and “cut her throat”. He told her that he knew where her parents lived and that if she told the police or her parents he would burn their house down when they were all asleep. He told her that he knew her brothers and sister. The assault was perpetrated over a period of some seventy minutes. During the same he forced his victim to drink from a can of beer and in doing so damaged her teeth. As to the details of the assault it is sufficient to say that he performed oral sex on his victim and inserted his fingers into her vagina on a number of occasions. The threats made to the victim were credible and she believed them. Following his arrest at interview the applicant gave an account of the evening in which he admitted in substance the acts complained of but maintained that they were performed, almost against his will, at the insistence of his victim. He persisted in this account and it was only in the week preceding the trial date that he acknowledged his guilt by pleading to a charge pursuant to section 3 of the Criminal Law (Rape) (Amendment) Act 1990. The learned trial judge sentenced the applicant to imprisonment for life. It is clear from the transcript that at sentencing the learned trial judge took into account the following matters:- 1. The many dysfunctional features of the applicant’s background. 2. The details of the offence. 3. The credible threat to kill. 4. The credible threat to burn out the victim and her parents. 5. The applicant on the 20th July 1987 at Coventry in the United Kingdom was convicted of rape and sentenced to a term of eight years imprisonment. 6. On the 4th October 1999 the applicant was convicted of rape in this country and sentenced to a period of ten years imprisonment. In that case a date for review of sentence was given and on review he was released from prison in April 2004. 7. This offence was committed some six months after his early release. 8. The contents of a Probation Service Report. As explanation for his conduct the applicant gave that when he drank he thought of his ex-partners who had let him down and done him wrong over the years. The applicant has insight into his offending pattern which is a pattern of assault and violent sexual behaviour perpetrated on anonymous innocent young women. Having regard to his history of sexual offending prison is not a deterrent to him. He is at high risk of re-offending.
“I do not find in the case any mitigating factors other than the plea of guilty, which came on the date of the trial. I have sympathy for the highly dysfunctional factors in the accused’s background and would normally be bound to have regard to them but in the present case there is a greater counter consideration in that I have come to the view, that in all the circumstances of this case, I will not be adequately protecting the community and in particular what are described by the Probation Officer as ‘anonymous young women’ by imposing anything less than a life sentence and I sentence the accused to imprisonment for life to date from the 13th March 2006.” “A sentence of nine years even with the final year suspended is undoubtedly (a reasonably significant custodial) sentence, but the court is satisfied, applying the principles already cited, that it cannot be said to reflect the gravity of the entirely separate offences of aggravated sexual assault and false imprisonment to which the respondent pleaded guilty. That, of itself, would be sufficient to raise at least a question as to whether the sentence imposed was unduly lenient within the meaning of section 2 of the 1993 Act. But there must also be taken into account not merely the other offences to which the applicant pleaded guilty but the disquieting fact that he had been convicted on a previous occasion of rape and had received a sentence of six years imprisonment. When to that is added the assessment of the Probation Officer that the respondent is a ‘very disturbed and dangerous man’, the conclusion is inevitable that the sentence in the present case erred on the side of undue leniency.” The court substituted a term of twelve years imprisonment in respect of each of the counts of aggravated sexual assault. In so doing the court had regard to the previous conviction as relevant to the seriousness of the offence rather than as a factor relevant to mitigation of sentence. In the first instance counsel for the applicant relied here upon a passage in Sentencing Law and Practice, O’Malley (2nd ed.) at paragraph 6.49:- “Progressive loss of mitigation on the other hand is certainly justified when a person is convicted of an offence of some seriousness when he already has one or more convictions for the same or a similar offence. There is, after all, clear evidence that he has not responded to earlier sentences. By the same token a person convicted of a minor or trivial offence should not be given a disproportionately heavy punishment just because he has a criminal record even a record that includes serious offences.” In short it is submitted that previous convictions are not an aggravating factor in terms of the seriousness of the offence but represent solely the absence of a mitigating factor in terms of the accused’s character and personal circumstances: thus while previous good character may result in a reduction of sentence, previous convictions will not result in an increase in sentence. Alternatively it is submitted that if a sentence should be increased by reason of the existence of previous convictions this would represent a form of preventive detention. The Criminal Justice Act 1999, section 29, is called in aid. This provides as follows:-
(2) To avoid doubt it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.” Counsel for the applicant focuses on the phrase in subsection (2) “exceptional circumstances relating to the offence”. “Offence” requires the court to have regard only to the facts and circumstances constituting the offence without regard to circumstances affecting the offender’s character and personal circumstances and so without regard in the circumstances in this case to his previous pattern of offending. This court is satisfied that the duty of a sentencing court is to pass an appropriate sentence taking into account the particular circumstances of the crime and the particular circumstances of the convicted person: The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250. In The People (Director of Public Prosecutions) v M. [1994] 3 I.R. 306 at 317 Denham said:- “Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that the mitigating factors fall to be considered.” In that case the court was considering whether sufficient weight had been given by the learned trial judge to nine mitigating factors identified by him. The court had not to consider, as had the trial judge here, a record of previous offending. More apposite is the decision of this court in The Director of Public Prosecutions v Melia where Keane J. in dealing with the sentences imposed for offences pursuant to section 3 of the Criminal Law (Rape) (Amendment) Act 1990 said:- “But there must also be taken into account, not merely the other offences to which the applicant pleaded guilty, but the disquieting fact that he had been convicted on a previous occasion of rape and had received a sentence of six years imprisonment. When to that is added the assessment of the Probation Officer that the respondent is a ‘very disturbed and dangerous man’, the conclusion is inevitable that the sentence in the present case erred on the side of undue leniency”. This court is satisfied that while previous good character is relevant to the character and circumstances of the accused which may be mitigating factors in terms of sentence previous convictions are relevant not in relation to mitigation of sentence but in aggravation of the offence. Accordingly in determining an appropriate sentence in this case it follows that the learned trial judge was entitled to have regard to the two previous convictions of rape, the fact that the offence was committed within six months of having been released from prison for an offence of rape and the matters disclosed in the Probation Service report. These circumstances are relevant not just in terms of their absence in mitigation of sentence but also in terms of assessing an appropriate sentence in terms of the seriousness of the offence, which sentence will be proportionately more severe than would be the case were these circumstances absent. This court is further satisfied that such an approach to sentencing cannot be regarded as offending the principles enunciated in The People (Attorney General) v O’Callaghan [1966] I.R. 501 where it was held that bail could not be refused merely because of a likelihood that offences would be committed while on bail as that would be a form of preventive justice unknown to our legal system and contrary to the purposes of bail. Underlying the decision in that case is the principle that an accused person is entitled to the presumption of innocence, the fact that any imprisonment before conviction has a substantial punitive content and that it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter of which he has not been convicted. Previous convictions for the like offence and even more so multiple convictions form part of the matrix of circumstances to which the court should have regard in determining an appropriate sentence in terms of the seriousness of the offence while at the same time the court must not impose an inappropriately severe sentence where it apprehends the commission of further like offences. Finally in regard to this submission this court rejects the construction sought to be placed upon the Criminal Justice Act 1999 section 29(2). In The People (Director of Public Prosecutions) v M [1994] 3 I.R. 306 Denham J. said:- “Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered.” The particular offender must be considered both in the assessment of the seriousness of the offence and in mitigation of sentence. A guilty plea does not mitigate the seriousness of the offending conduct but is a factor which operates in mitigation of sentence, that is, it operates as a factor in the offender’s character and personal circumstances. The courts have consistently distinguished factors which aggravate or mitigate the offence and factors which mitigate sentence. Having determined the seriousness of the offence and determined a proportionate sentence the court has regard to the character and personal circumstances of the offender and considers whether these justify mitigation of sentence. A plea of guilty is a factor to be considered in terms of mitigation of sentence. This being so the court is satisfied that in referring to “exceptional circumstances relating to the offence” the legislature intended that a court should have regard not just to matters relevant to the fixing of an appropriate and proportionate sentence having regard to the seriousness of the offending behaviour but also to the personal circumstances of the offender. Next on behalf of the applicant it is submitted that the learned trial judge did not have any or any sufficient regard to the plea of guilty, the applicant’s expression of remorse and regret and the personal circumstances and background of the applicant. As to the expression of remorse and regret it is a matter for the trial judge to determine whether or not expressions of remorse and regret are genuine and whether in all the circumstances they merit mitigation. The learned trial judge did not afford any weight to these expressions. Having regard to the conduct of the applicant in fabricating an account of the events of the evening in which he claimed that his victim had requested him to commit the acts constituting the offence, this court is satisfied that the learned trial judge was fully entitled to take this view. Again the learned trial judge expressly had regard to the dysfunctional factors in the applicant’s background but determined that in the context of the overall circumstances of the offence and of the offender mitigation of sentence was not appropriate. This court can see no error in principle in the manner in which the learned trial judge dealt with either of the foregoing matters. In relation to the plea of guilty reliance was placed on The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250 where Finlay C.J. stated at p. 255:- “A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of offence, a mitigating circumstance.
However the plea in this case came very late indeed. He was arraigned on the count to which he pleaded guilty on the 11th December 2006 having indicated his intention to do so approximately one week earlier. In the particular circumstances of this case it cannot be said that he spared his unfortunate victim much. The offence was committed on the 17th/18th September 2004. In his statements to the Gardai on the 29th September 2004 he described in graphic detail the acts which he had performed but maintained that his victim had begged him to perform the acts which ground the offence. Against this background this court is satisfied that there was no error in principle in the learned trial judge declining to consider the late plea as operating in mitigation of sentence. This is the case also in relation to the argument that the plea albeit late spared the victim something and the utilitarian arguments based on the saving of court time and the possibility that less pleas will be forthcoming if some recognition in terms of sentence is not afforded in respect of the same. The court is of this view notwithstanding the following circumstance. The applicant was originally charged with rape. Immediately upon the charge being reduced to one of aggravated sexual assault he intimated an intention to plead guilty and did so. In considering the merit of the plea regard must be had to the fabricated account of the events of the evening and the effect of this upon the victim from the date of the statement, the 29th September 2004, to the date of the plea, the 11th December 2006. Finally it is submitted that the learned trial judge failed to consider the Sex Offenders Act 2001 section 28 and in particular to consider whether he should impose a sentence involving post release supervision. Section 28(2)(b) requires the court in considering section 28 to have regard to the need to protect the public from serious harm from the offender. This court is satisfied that in the present case it would be inappropriate for the court, having determined an appropriate and proportionate sentence, to reduce the same by reference to a period of post release supervision. The court is satisfied that the circumstances disclosed in the Probation Service Report are such that a period of post release supervision would be unlikely to serve the need to protect the public from serious harm from this offender. Having considered the legal submissions made on behalf of the applicant the court must now move to consider whether in imposing a life sentence having regard to all the circumstances, both those relating to the offence and to the offender, the learned trial judge was in error of principle. The circumstances of the offence have been set out above. As remarked by Kearns J. in The People (Director of Public Prosecutions) v. R McC. and The People (The Director of Public Prosecutions) v. C.D. Supreme Court (unreported) 25th October, 2007:-
There can be no doubt here but that the applicant committed a sexual assault on the victim which included elements of aggravation. The evidence of Detective Sergeant Forsythe to the sentencing judge was that the applicant came from behind the victim, put one hand over her mouth and another hand around her waist and said “If you make noise or shout I will slice you”. After he had sexually assaulted the victim he said to her, “if you tell the police or mammy or daddy I will come down and burn the house when they are all asleep”. The learned sentencing judge found that this was a credible threat. These are clearly threats of serious violence within the above cited definition of “aggravated sexual assault”. Therefore in the view of this Court the culpability of the applicant has to be of a very high level. The nature and the extent of the attack on the unfortunate victim in this case may be summarised as follows:- (1) She was attacked from behind and dragged from the public road onto an isolated area of waste ground where it was very dark. (2) She was threatened as indicated above and was forced to drink a can of beer which was forced into her mouth with such violence that it chipped two of her teeth. (3) She was partly undressed by the applicant and made to lie down. (4) The applicant touched her breasts, bit her stomach, performed oral sex on her, repeatedly penetrated her vagina with his finger. (5) He took her money and her mobile telephone. (6) The humiliating and degrading sexual assaults lasted for approximately 70 minutes. Though the victim did not receive any psychological or psychiatric treatment, it is clear from the Victim Impact Statement that the effect of this sexual assault on her was very grave. She was unable to work for four weeks. The cost of treatment to her damaged teeth is €2,900. Her enjoyment of life has been permanently impaired in that her sense of security in society has been lost and she has become overcautious in moving about during daylight hours and is afraid to go out at night unaccompanied. This is a very great imposition in the case of a single lady of twenty five years of age. While the assault was very serious and serious harm was undoubtedly done to this unfortunate victim in this case, having regard to the types of indignity, physical abuse and depravity to which other victims of aggravated sexual assault have been subjected and to the effects which their ordeal has had on some victims, the Court is satisfied that this particular aggravated sexual assault lies in the mid to upper range of seriousness on the scale of gravity of such assaults. The Court is satisfied that the applicant’s behaviour on the occasion was premeditated. He acted out his confessed violent sexual fantasies about women on this vulnerable young women conforming to his pattern of previous offending. The exculpatory statement which he made to the Members of An Garda Síochána on 29th September, 2004 is a clear indication of the disturbingly gross and violent nature of these fantasies. He had been ruminating and fantasising in a violent sexual way about women and he followed the victim when she was walking away from a business premises and assaulted her. This Court has to consider what is the appropriate sentence for this particular crime because it was committed by this particular offender. The Court does not participate in an exercise in vengeance or seek to retaliate against the applicant on behalf of the victim. (People (A.G.) v O’Driscoll [1972] 1 F.R.E.W.E.N. 351 at 359: People (DPP) v. “M” [1994] 3 I.R. 306: People (DPP) v. McCormack [2000] 4 I.R. 356 at 359 and People (DPP) v Kelly [2005] 1 ILRM 19). In discharging this function, this Court examines the matter from three aspects in the following order of priority, rehabilitation of the offender, punishment and incapacitation from offending and, individual and general deterrence. This Court has to consider whether there is a reasonable possibility of the applicant re-entering society as a rehabilitated member having served what in this case must be a lengthy sentence of imprisonment. As was pointed out by Fennelly J. in delivering the judgment of this Court in People (DPP) v Cole (31st July, 2003), the Court would be failing in its duty if it failed to impose such a sentence for this serious offence committed by this applicant. The author of the Probation Report on the applicant found that the applicant had insight into his offending pattern and that it was therefore critical that he receive therapeutic counselling within the Prison Service. Significantly, the author is not prepared to put the matter further than that this may (emphasis added) assist him in controlling his emotional needs, sexual deviance, anger and substance abuse. Because of the applicant’s previous history of repeated sexual offending, his deeply dysfunctional background, his lack of education, his substance abuse, his lack of marketable skills, his difficulties in social integration, his failure to persevere in the Sex Offenders Programme during a previous period of incarceration and the fact that custody, (in his case long terms of imprisonment), does not appear to be a deterrent, the author concluded that the applicant represented a high risk of re-offending a conclusion which this court considers to be entirely appropriate and justified. While some encouragement should still be given to this applicant to rehabilitate himself, having regard to his previous propensity to re-offend despite his having served quite significant custodial sentences, and his unwillingness to accept treatment for his very serious problems, this applicant’s rehabilitation will have to take place in a custodial context. This applicant must be incapacitated from reoffending for a long time by way of a long term of imprisonment. This custodial sentence must also reflect the censure of society on the applicant for his shocking crime in the instant case. While being careful to abide by the principle of proportionality this Court should also take into account an element of individual and general deterrence. Having regard to the information before this Court as to the character, disposition, circumstances and previous record of the applicant, the term of the sentence in this case will have to be increased substantially from that which the Court might otherwise consider appropriate for this particular aggravated sexual assault. Such an increase is necessary to remove the applicant’s capacity to offend, to eliminate so far as possible his desire to re-offend and to reduce the likelihood of a reoccurrence of his offending on his release from imprisonment. In the opinion of the Court the object of general deterrence, causing others who might be tempted to commit similar aggravated sexual assaults on females to desist, must also be met. In the case of People (DPP) v “MS” [2000] 2 I.R. 592 at 600 and 601, Denham J., held that in cases relating to sexual offences a sentence may incorporate an element of protection of society, something which can sometimes be best achieved by supervised release. If this Court were to impose a sentence for the particular offence only, it would not provide this element of protection where the evidence before the sentencing judge establishes that the applicant has a high propensity to reoffend. However, there is an important balance to be struck here between the obligation of the judicial arm of the State to protect the citizens and in particular the vulnerable citizens of the State and its obligation to vindicate the constitutional rights of the individual even if that individual is a recidivist. In advancing the former desideratum the Court cannot disregard the fundamental principle that punishment should be proportionate to the particular offence committed by the particular offender. The applicant cannot be sentenced again for past offences and he cannot be sentenced in anticipation for offences which he has not committed and which he might never in fact commit. The concept of deterrence and of the protection of society, which can be advanced in a number of ways, is a permissible input into sentencing in our jurisprudence, (for example, O’Driscoll case (ante) and “MS” case (ante)), but to a limited extent only consistent with the proportionality principle and must not be conflated with a form of general preventive incarceration which is not part of our jurisprudence. An indeterminate sentence of life imprisonment could not be imposed on a repeat offender solely on this basis. It is clear from the facts of the R.McC. and C.D. cases that the Supreme Court was not suggesting that only the ne plus ultra of these offences – if indeed this could ever be defined or measured – should attract the maximum statutory penalty of life imprisonment, but rather that the sentencing judge must be fully satisfied that the circumstances attending the commission of the particular offence were of an extremely violent reprehensible or degrading nature. Even though the circumstances of this applicant’s assault on this victim were very shocking, the Court is satisfied that it could not rationally or reasonably conclude that the circumstances surrounding the commission of this particular aggravated sexual assault were of such a very exceptional nature. Therefore, the court concludes that the imposition of a sentence of life imprisonment on the applicant amounted to an error in principle. In mitigation the Court has regard to the fact that the applicant pleaded guilty to the charge of aggravated sexual assault even if only at the commencement of the trial. While the applicant’s personal and social circumstances are deserving of very great sympathy, the Court does not see that there is any correlation between them and his aggravated sexual assault on this unfortunate young lady. The Court will treat this application for leave to appeal as the hearing of the appeal. The Court will set aside the sentence imposed by the learned trial judge and will substitute therefor a sentence of sixteen years imprisonment from the 13th March, 2006 but will suspend the final three years of that term on the applicant entering into a bond to keep the peace and be of good behaviour for a period of five years from his release. The Court will in addition impose a period of ten years post-release supervision on the applicant. | ||||||||||