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Cite as: [2008] IECCA 15

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Judgment Title: D.P.P.-v- Martin Stafford

Neutral Citation: [2008] IECCA 15

Court of Criminal Appeal Record Number: 33CJA/07

Date of Delivery: 14 February 2008

Court: Court of Criminal Appeal

Composition of Court: Geoghegan J., Murphy J., deValera J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result
Geoghegan J.	Refuse application

Outcome: Refuse application

THE COURT OF CRIMINAL APPEAL

Reference No. 33 CJA/07

Geoghegan J.
Murphy J.
De Valera J.

IN THE MATTER OF AN APPLICATION
PURSUANT TO SECTION 2 OF THE
CRIMINAL JUSTICE ACT, 1993

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS)

Applicant

and

MARTIN STAFFORD

Respondent

Judgment of the Court delivered by Mr. Justice Geoghegan on the 14th day of February 2008

This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act, 1993 for a review of a sentence imposed on the above-named respondent by the Central Criminal Court (Carney J.) on the grounds that the sentence was unduly lenient.

In the indictment, as preferred, count No. 1 was a count of false imprisonment based on an allegation that the respondent had falsely imprisoned a woman in a disused railway carriage, parked at Heuston Station and in which the respondent had been residing. Counts 2 to 7 had alleged rapes of the same woman by the respondent on the same night and in the same railway carriage. Count 8 alleged an offence under section 112 of the Road Traffic Act, 1961, as amended, that is to say, the unauthorised taking possession of a motor car in the context that this was the car in which the same woman had been picked up by the respondent and finally, count No. 9 was an allegation of burglary at St. Peter’s Church, Phibsboro, for the purposes of procuring the same car. In the event and in consequence of agreement with the Director of Public Prosecutions, the respondent pleaded guilty to count No. 3 which was a count for common law rape and to count No. 8 being the section 112 offence. It was to be understood, however, that all the alleged facts would be put before the judge and there was a nolle prosequi entered in respect of the other counts. A sentence of nine years imprisonment was imposed on the rape count and a sentence of four years imprisonment to run concurrently was imposed in respect of the section 112 offence. The learned sentencing judge imposed a further nine years post-release supervision.

The salient facts as put before the judge by Inspector Joseph Crowe were as follows: A car was stolen by the respondent from St. Peter’s Church, Phibsboro of which the registered owner was a Fr. Brian Moore. This happened between the 3rd and 6th March, 2005. On the evening of the 10th March, 2005, a woman who will be referred to as C.B. to protect her identity was working as a prostitute in the Baggot Street area of Dublin. She was approached by the respondent in the stolen car and a fee was agreed for consensual sex. The respondent then drove the car to Heuston Station and he and C.B. entered the disused carriage which, without permission, the respondent was using as a home. To avoid being noticed, he wore at times a luminous jacket similar to what would be worn by an Iarnród Éireann worker. On two occasions earlier in the week, C.B. had had consensual sex for a fee with the respondent in the carriage. On the night in question, however, a quantity of alcohol was purchased before going to the station. When they arrived at the railway cabin, the respondent took C.B’s bag from her and switched off her mobile phone, at which point he said to her “tonight you are going to get fuck all money. You stay until I tell you to go and you are going to have sex with me the way I like it and you are to strip off everything.” He kept shouting at her and asking her did she hear him. He grabbed her and pushed her down on the bed. He picked up a hammer and threatened her with the hammer to smash her face. C.B. became terrified and as a consequence complied with the respondent’s request. He removed his clothes and invited her to have oral sex with him. Despite her request, he refused to use a condom. He then had vaginal sex with her from behind, subsequently moving to a front position. He withdrew before ejaculating. He told her that they were going to have intercourse all night and that he would not let her go until he was finished. C.B. then pretended to be asleep and she realised at that stage that the main door had been locked by the respondent. After about an hour the respondent forced her again to have oral sex with him, followed by penetrative vaginal sex though he ejaculated on her back. C.B. was crying and shouting at him to shut up. She herself then attempted to use the hammer by way of self-defence. She tried to knock him unconscious so that she could get out of the carriage but he grabbed her and pushed her on the head. He, again, reiterated that he would not let her go and that she would have to stay until his needs were satisfied at which point he gave her a choice of oral or anal sex. She opted for the oral sex. In fact ordinary vaginal sex followed but she later performed oral sex on him. She was allowed go to the toilet on one or two occasions which, in effect, was a cardboard box. Eventually, the respondent fell asleep and while he was asleep C.B. successfully by mobile contacted the Garda Síochána and drew them to the correct carriage by turning up a radio which was in the carriage. As a final part of the assaults, she was at one point threatened by a scissors. While she was having sex with the respondent, the scissors was put to her throat. It is clear from the evidence and the victim impact report that C.B. has been adversely affected by the whole episode and at times finds it hard to get out of bed. By any standard, the crime was horrific and would attract a substantial sentence.

The question is was the sentence imposed by the learned judge unduly lenient. Having regard to other matters and circumstances which are about to be referred to in this judgment, the court is of opinion that it was not and that there would be no basis for setting aside the sentence.

Before giving specific reasons why the court is of the view that the sentence was not unduly lenient, it is thought appropriate to make some general comments on sentencing principles in general. One of the reasons why the court thought fit to reserve judgment in this case is because shortly before the hearing of the appeal, Charleton J., in the Central Criminal Court in the case of DPP v. Drought had delivered a lengthy and learned judgment on sentencing in rape cases. As it so happens, a new judgment of this court has since been delivered on the same theme by Murray C.J. sitting with Charleton J. and Irvine J. in DPP v. Keane on 19th December 2007.
The Central Criminal Court judgment of Charleton J. contains at its outset the following statement of principle with which this court is in agreement. It reads as follows:

“My function today is to decide what sentence is appropriate to the perpetrator in the circumstances of this case. Courts are guided by precedent. It can be argued that the circumstances of the perpetration of the same offence by different offenders on different occasions can be so varied that previous decided cases are of little assistance. It can also be asserted that cases can, notwithstanding variation, have similarities which become apparent once particular factors are identified as being of importance in sentencing. These factors, and the range of variability that they bring about, can be ascertained in previous rulings of this court, the Court of Criminal Appeal and the Supreme Court. It is not my intention to establish guidelines for the sentencing of offenders who have been found guilty of rape. It is my function however, to place the sentencing of this offender within the parameters of the existing law and practice so that the disposal of this case can be regarded as being consistent with the penal policy of the superior courts in dealing with rape cases.”

The learned judge goes on to make it clear that he had attempted to examine all the previous reported and unreported decisions of the superior courts which are relevant and he had also gained assistance from the Judicial Research section of the High Court and from the parties themselves. The case review set out by Charleton J. will obviously prove useful in the future for sentencing judges but, as he is the first to recognise, no two cases are exactly the same. That principle has particular relevance to this case because the learned sentencing judge, Carney J., attached significant importance to one particular precedent referred to indeed in the judgment of Charleton J. namely, The People (DPP) v. Melia (unreported judgment of this court, delivered by Keane C.J. on the 29th November, 1999). Interestingly, Charleton J. clearly considered that the main aggravating factor in that case which led the court to increase a sentence of nine years imprisonment imposed by Carney J. in the Central Criminal Court to one of twelve years imprisonment was the element of a previous conviction for rape rather than the number of victims (in that case there were four victims three of whom were prostitutes) which is the point to which, on the face of his judgment, Carney J. appears to have attached particular importance. However, the court notes that Keane C.J. also placed special emphasis on the fact that these were four separate incidents.

The apparent emphasis on Melia placed by the learned sentencing judge in this case must be put in context. First of all, it was he himself who raised concern about that case. From the judge’s interjections in the transcript and from his sentencing ruling, it would appear that his primary concern was to ensure that in imposing a sentence less than twelve years he would not be departing from sentencing principles laid down by the Court of Criminal Appeal. It would be too literal a reading of the judgment to assume that in arriving at his sentence, the learned trial judge did not take account of any of the mitigating arguments (admittedly some of them unsound) put forward on behalf of the respondent but solely determined his sentence on a perceived relevant differentiation of the case from Melia on the basis that there was only one victim instead of four involved. Even if that was the view which the judge took, this court in considering whether the sentence was unduly lenient or not is obliged to take into account all factors in the case and not merely those which influenced the learned sentencing judge.

In DPP v. Keane cited above, the Chief Justice reiterated what has been stated in many judgments that the starting point of the case law relating to the sentencing of rape offences is the well-known judgment of Finlay C.J. in The People (DPP) v. Tiernan [1988] I.R. 250. The former Chief Justice in that case made it clear that the seriousness of rape will, except in wholly exceptional circumstances, warrant an immediate custodial sentence. But at the same time the judgment which was a judgment of the Supreme Court rejected the idea of a tariff. Murray C.J. in the Keane case quotes in this connection Finlay C.J. as saying the following:

“… having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”

It is common knowledge that this particular viewpoint does not find favour in a number of other common law jurisdictions but it has always been adhered to in this jurisdiction and in the view of the court has served us well. In Keane the judgment of Murray C.J. contains the following passage which supports the same proposition.

“So far as sentencing generally for the offence of rape is concerned a sentencing court must have regard not to one individual case but to the range of cases, some of which have been cited here, governing sentences in such cases and then exercise its own discretion having regard to all the circumstances of the case actually before it.”

In the context of an application by the Director of Public Prosecutions based on the contention that the sentence was unduly lenient, Murray C.J. in Keane had this to say:

“The task of a sentencing judge is often a difficult and complex one. The law obliges him or her to have regard to all the salient features of the circumstances in which the offence was committed, the nature of the offence and its impact on the victim and society so as to evaluate its gravity. The sentencing judge is also obliged to have regard to the particular individual who must be sentenced, his or her personal history and circumstances so that a punishment which is proportionate and just may be imposed. There may be matters which the prosecutor has considered to be of prime importance and other matters which the defence considers to be of prime importance but it is for the judge to adopt an independent evaluation of all factors. Apart from the case of murder it will not be possible to refer to a predetermined term of imprisonment which ought to be imposed. Neither has it ever been the function of the DPP to propose that a specific sentence should be imposed. That is a judicial function and an issue which can only be determined when all the relevant factors have been taken into account and evaluated by the sentencing judge in the exercise of his or her independent judicial functions. Counsel for the DPP is of course under a duty to bring to the court’s attention all law and factors relevant to the sentence which may be imposed. The DPP may also assist the court, which is a practice with a provenance of long-standing, by submitting with reference to specific circumstances that those circumstances are such as to warrant a custodial or substantial custodial sentence or otherwise for the offence committed.

The sentencing judge has to decide in each case the appropriate sentence within the general parameters of sentencing depending on the nature and degree of aggravating or mitigating circumstances.”

None of this means that there should not be reasonable consistency in sentencing. That consistency will be achieved by the proper application of the above principles. It is clear beyond doubt that a substantial custodial sentence was warranted on the facts of this case. Apart from anything else there were aggravating circumstances surrounding the case. There were some mitigating circumstances which will be referred to but none which could warrant anything less than a substantial custodial sentence. A nine year imprisonment sentence is such a sentence. The only question that arises is whether in all the circumstances it was sufficiently substantial.

The aggravating factors urged on this court on behalf of the Director of Public Prosecutions were as follows:

1. The length of time of the false imprisonment. It is suggested that the learned trial judge failed to give sufficient weight to the nine or ten hour period within which the victim was effectively imprisoned. Attention is also drawn of course to the wording that was used accompanying such imprisonment and which is referred to above.
2. The number of oral and vaginal rapes engaged in.
3. The premeditated nature of the offences.
4. The use of a weapon in the form of a hammer at the beginning and later the incident involving the scissors put to the applicant’s throat.
5. The previous convictions with special reference to two previous convictions for false imprisonment and one for indecent assault.
6. That overall the facts and circumstances were more serious than in the Melia case.

The alleged mitigating factors relied on by the respondent were the following.

1. The relief given to the complainant by reason of the plea of guilty.

2. That one week’s advance notice of the plea of guilty was given.
3. That the claimant did not suffer any non-sexual injuries.
4. The undoubted dysfunctional and tragic background of the respondent.
5. That he was a chronic abuser of drugs.
6. That he was involved in the use of drugs at the time of the offence.
7. That he had sought to address his drug use.
8. There was a degree of cooperation with the prosecuting gardaí and various other overlapping grounds which were either related to the sad life which he had had or his allegedly genuine attempts to rehabilitate himself.

The prosecuting garda officer did accept a number of these points in his favour under cross-examination from counsel. In relation to the aggravating factors, it is argued on behalf of the respondent that there was no premeditation having regard to the two prior occasions on which there was consensual intercourse. That assumption cannot reasonably be made in the view of the court. It is then submitted that the previous convictions were of a different nature. It is admitted that some relevance can be attached to the convictions of false imprisonment and indecent assault. The indecent assault combined with the false imprisonment had occurred as far back as 1991 and the respondent had served a seven year sentence. The later conviction of false imprisonment was in connection with a burglary in 1997, some considerable time before these incidents. Quite apart from the number of victims and incidents involved, as already referred to, the defendant in Melia had had a previous conviction of rape and that appeared to be an important factor relied on by the court in increasing the sentence.

The learned trial judge correctly points out that in the case of numerous offenders appearing before him there is a dysfunctional history. That of itself and by itself cannot really differentiate the case from many others. There are sound public policy reasons why minimal importance can be attached to mitigating arguments based on drink or drugs. Furthermore, many law abiding families suffer a series of unfortunate bereavements and that cannot be an excuse for crime. What the court thinks is important in this case, however, and given the nine year supervision order which the learned trial judge imposed, the court believes the trial judge was of the same view is the concrete evidence of genuine attempts at self-rehabilitation with particular reference to drugs. This seems clear from the reports which were before the judge. In considering whether the sentence is unduly lenient or not, the nine year supervision order should not be ignored. Clearly, it was thought out carefully by the learned judge and in a context that rehabilitation appeared viable. The length of the particular supervision order if adopted too frequently might create practical resource problems for the probation service but that is quite another matter. As far as this case is concerned and the particular facts of it the structure of the sentence combined with the supervision order would seem to this court to have been wholly appropriate and could not be considered as wrong in principle and still less could be considered as unduly lenient for the purposes of the Director of Public Prosecutions’ application. Accordingly, the court refuses the application.