Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- P. O'C

Neutral Citation: [2009] IECCA 116


Court of Criminal Appeal Record Number: 18/09

Date of Delivery: 05 November 2009

Court: Court of Criminal Appeal

Denham J.
Dunne J.
MacMenamin J.

Between/

1. This application for leave to appeal has been brought by P.O'C, hereinafter referred to as "the appellant", against the sentence of 3 years imprisonment imposed by the Central Criminal Court (Carney J.) on the 9th February, 2009.

2. The appellant was before the Central Criminal Court on one count, which stated:-

Statement of offence

Indecent assault contrary to section 10 of the Criminal Law (Rape) Act, 1981.

Particulars of offence

PO'C on a date unknown between the 1st April 1982 and the 30th June 1982, both dates inclusive, at … Primary School, … within the jurisdiction indecently assaulted [E], a female.

4. There is a history to the case. The indictment dates from 1998 and originally contained allegations of indecent assaults by five separate complainants, all pupils in the primary school where the appellant was a member of the teaching staff. The indictment was severed and five separate trials directed, one relating to each complainant. The complainant in this case is the last of the five. The complainants are referred to as A, B, C, D and E.

5. The indictment was severed on the application of the appellant. On the 15th November, 1999 the first trial commenced, in relation to complainant A. After a nine day trial the appellant was acquitted.

6. The trial in relation to complainant B commenced on the 24th January, 2000, the jury was discharged and a new trial listed for the 22nd May, 2000.

7. In the meantime the trial in relation to complainant C commenced on the 22nd March, 2000 in respect of two counts of indecent assault. The appellant was convicted and sentenced to four years imprisonment (Ó Caoimh J.). The appellant served this sentence and was released on the 6th May, 2003.

8. The adjourned trial in relation to complainant B commenced on the 22nd May, 2000 and the appellant was convicted of five counts of indecent assault and sentenced to four years imprisonment with one year suspended (Finnegan J.). This sentence ran with the sentence in relation to complainant C, creating in effect a concurrent sentence.

9. The trial in relation to complainant D commenced on the 26th June, 2001 and the indictment was quashed on an application to the learned trial judge.

10. The fifth trial, in relation to complainant E, the subject of this appeal, was listed before the Central Criminal Court on the 10th June, 2002 for trial but there was no judge available to hear the case. The matter was relisted for hearing on the 12th January, 2004.

11. After serving his sentences in relation to the convictions on the complaints of complainants B and C, on the 7th July, 2003 the appellant applied for and was granted leave to apply for judicial review to prohibit the trial in relation to complainant E on the grounds of delay. This application succeeded in the High Court on the 11th March, 2005 but failed on appeal in the Supreme Court on the 4th March, 2008. The case was then returned to the court lists for a date for trial.

12. On the 20th October, 2008 the appellant was arraigned and pleaded guilty to the offence of indecent assault on complainant E. The matter was put back for sentencing so that reports would be available to the court.

13. The statement of the offence and the particulars of the offence have been set out earlier in this judgment. The complainant was a 12 year old pupil in the school where the indecent assault took place. The assault had a significant effect on her. Also, the long legal process has had a detrimental effect upon her.

14. When sentencing the appellant on the 9th February, 2009 the learned trial judge stated:-

"I declare the accused a sex offender as required by law. The facts of this case are recorded on the transcript and don't require to be reiterated here. The aggravating feature, so far as this case are (sic) concerned, is that the accused, at the time of perpetrating the offence, was in a position of trust, as a primary teacher, and adopted a blackmailing approach towards his victim, by getting his way on foot of not reporting her to the school principal for misconduct on a bus. So far as his plea of guilty is concerned, that came very late in the day, and the victim has had this matter hanging over her without closure for a period of 26 years. The accused in this case, had he pleaded guilty at the first available opportunity, would have had his sentence in this case long over, and been in a position to take up his new life in France with the lady who is part of his life now. But what he did was described in his own words to the probation officer in a colourful expression which for the moment has gone out of my head, but which is already recorded on the transcript. It had something to do with beating his head in on the judicial review side of this court over many years. Well, he initiated that course and was ultimately unsuccessful. And, as I say, that has had the effect of keeping the matter hanging over his victim, and depriving her of closure. I sentence the accused to a period of three years imprisonment to date from two weeks ago."

Submissions on behalf of the appellant

16. Counsel for the appellant submitted that the learned trial judge erred in principle by imposing a consecutive sentence on the appellant, and further that it has been the practice to impose concurrent sentences where offences were committed against several victims, although it was accepted that there is no absolute rule as to the concurrency in sentencing. He added that the Central Criminal Court (Finnegan J.) when sentencing on the 22nd May, 2000, acknowledged that the appellant was already serving a four year sentence and ordered a four year sentence but suspended the last year, so that in effect it was a concurrent sentence.

17. Counsel contended that the learned trial judge had failed to take into account the views expressed by the Supreme Court when he imposed a sentence of three years on the appellant.

18. Counsel stated that while the learned trial judge had noted that the appellant had taken judicial review proceedings and that he was not going to hold that against him, he had nonetheless held:-

"It has something to do with his beating his head in on the judicial review side of this Court over many years. Well, he initiated that course and was ultimately unsuccessful. And, as I say, that has the effect of keeping the matter hanging over his victim, and depriving her of closure."

19. In fact the delay was referred to on the 26th January 2009, when the learned trial judge stated, inter alia:-

"… the [appellant] chose to engage in what he described extensively to the probation officer as 'a legal dog fight' which went on for ten years."

21. The appellant served a full term of imprisonment before bringing a judicial review application on the 7th July, 2003.

22. It was contended on behalf of the appellant that while the appellant appealed to the Court of Criminal Appeal unsuccessfully, and subsequently brought an application concerning the quashing of indictments by a judge at trial to the Supreme Court on a point of law of exceptional public importance, none of these matters delayed this final trial, that the appellant was entitled to appeal, and the outcome of an appeal in relation to another complainant could not have acted as a bar to prohibit this final trial. It was submitted that the learned trial judge erred in appearing to blame the appellant for delay.

23. The appellant pointed out that the counts on the original indictment arose out of complaints from five complainants, all during the time 1979-1982 and that this was a fact which the trial judge should have taken into consideration.

24. It was said that the Probation Service had deemed the appellant a person suitable for a course of treatment, which he was prepared to undertake.

25. Finally, it was submitted that, (i) the appellant had no previous convictions (except those arising from the severed indictment), (ii) he has since his release in 2003 shown no indication to re-offending, (iii) his offending was at the lower end of the scale of sexual offences, and (iv) in ordinary circumstances the court would be inclined to acknowledge the individual nature of each complainant's complaint, impose a sentence in respect of each of them, but also impose concurrent sentences and that consequently the learned trial judge had erred in principle by imposing what was in effect a consecutive sentence.

Submissions on behalf of the Director of Public Prosecutions

26. Counsel for the Director contended that there was a fundamental fallacy at the centre of the appellant's case that the sentence imposed equates to a consecutive sentence and that in effect the appellant should not have been sentenced to any term of imprisonment on this offence as he has already served the sentences of four years and three years. Counsel argued that the fundamental error was that the appellant assumes that had he pleaded guilty to the offence against E at either the sentencing of the offence against B or C, the sentence would have remained the same. However, the circumstances would have been different. The trial judge would have been dealing with a person who had been found guilty and or pleaded guilty to sexual offences against three young girls, pupils in the school in which he was a teacher. Counsel said that it cannot be assumed that if that were the situation that the sentencing judge would have limited the sentence to four years in a situation where there were a series of offences. Finally, it was contended that the learned trial judge in this case had stated his reasons and that the sentence imposed was appropriate.

Sentence

27. Section 10(1) of the Criminal Law (Rape) Act 1981 provides that:

"If a person is convicted on indictment of any indecent assault upon a female he shall be liable to imprisonment for a term not exceeding 10 years."

29. In Criminal Law and Procedure: Current Issues and Emerging Trends, Edited by Bacik and Heffernan, (Dublin, 2009), the academic and practitioner Tom O'Malley is the contributor of a chapter entitled Sentencing Recidivist Sex Offenders: A Challenge for Proportionality which refers to several types of recidivist sex offenders. The second type referred to are offenders who had been convicted and sentenced for sexual offences but who are later convicted for other similar offences committed during the same era as that to which the first set of charges related. This category is similar to the facts of this case. At pp.109 and 110 the author states:-

"The main problem associated with the second category of offenders mentioned above may be characterised as one of sentencing equity, and it is illustrated by two recent Irish cases. In People (D.P.P.) v. Meaney, the accused pleaded guilty to some sample charges of indecent assault committed more than 35 years earlier (in 1972) against a young pupil in a school where he taught. The accused had, in fact, been the appellant in People (D.P.P.) v. M where his sentence for similar offences committed against other pupils had been reduced from 18 to 12 years' imprisonment. The latter offences appear to have been committed between the mid-1980s and the early 1990s, and the sentence for those offences was finalised in 1994. While serving that sentence, he was questioned in relation to the 1972 assaults and he made certain admissions. However, once charged, he instituted judicial review proceedings to restrain his trial from going ahead. Unfortunately, it took well over six years for those proceedings to wend their way through the superior courts but in a judgment delivered in January 2007, the Supreme Court refused the application. It did however approve a statement by the High Court judge to the effect that the applicant's entitlement to a fair trial would include a requirement that account be taken of the sentence which he had already served. Both courts further accepted regard might be had to the possibility that had the present charges been preferred earlier, any sentences imposed in respect of them might have been served concurrently or partly concurrently with those imposed for the other offences. The history of People (D.P.P.) v. [O'C] was even more complicated. The defendant had initially been charged in 1998 with having committed various sexual assaults against five victims. In November 1999, the indictment was severed which led to several different trials, one of which resulted in an acquittal, another in a quashing of the indictment and two in convictions which resulted in a cumulative term of four years imprisonment from which the applicant was released in June 2003. There remained one outstanding trial due to commence in 2000 but it was adjourned because there was no judge available on the appointed date. That trial was due to recommence in January 2004, but the defendant brought judicial review proceedings, unsuccessfully as it happens, to prevent it from going ahead. Eventually, he pleaded guilty and was sentenced to three years imprisonment on the relevant charge. While the Supreme Court, in dismissing the judicial review application in [O'C], declined to treat the sequence of events as an exceptional circumstance justifying prohibition, it did say that those events could properly be taken into account at the sentencing stage. This is a matter which requires further attention. An appeal in either Meaney or [O'C], may provide the Court of Criminal Appeal or Supreme Court with an opportunity to indicate the principles applicable in circumstances where all of the offences might possibly have been dealt with at the same time."

Principles

30. Many of the principles applicable to sentencing in this case are of long standing. However, some of the issues which arise in relation to sex offending and consequential trials are relatively new matters arising as a consequence of prosecutions now being taken for offences which were committed some years ago.

31. Many of the considerations overlap and are interwoven one with another. They are not in separate boxes, clinically separated.

32. Sentences should be proportionate. The nature of the offence and the particulars of the offender are relevant. Also, factors relating to the victim or victims should be considered.

33. The nature of a crime is a critical factor. Thus a serious crime usually should give rise to a severe sentence.

34. However, a sentence should be proportionate to the circumstances of the offender. As Walsh J. stated in The People (Attorney General) v. O'Driscoll (1972) 7 Frewen 351 at p.359:-

"The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal."

35. While the victim does not have a primary role in the prosecution by the State of an accused, the circumstances of a victim may be relevant. Thus, for example, if a victim does not have to face a trial, if an accused pleads guilty, this is a relevant factor in sentencing. Also, if a crime has had a significant effect on a victim this too may be a matter to be considered. The nature of a crime - of violence, of sexual assault - may of itself have significant consequences for a victim.

36. The maximum sentence for an offence should be identified. In this case the offence is that of indecent assault contrary to section 10 of the Criminal Law (Rape) Act 1981 and the maximum sentence is 10 years. The court should identify where on the scale is the particular offence. Is it at the top end? Is it at the lower end of the scale? Is it in the middle?

37. The aggravating and mitigating factors of the particular offence should be identified and applied. There is an interrelation between the analysis required of the nature of the particular offence and consideration of the mitigating and aggravating factors.

38. Aggravating factors may include matters such as violence, or that the convicted person held a particular position of trust.

39. The mitigating factors may include a plea of guilty. A plea at an early stage is a weighty factor, whereas at a late stage it does not carry the same weight. There is a significant benefit to society if there is an early plea. It means that a victim will not have to suffer the anticipation of a trial or have to give evidence in a trial. Also, the State is saved the cost of a trial. Other mitigating circumstances may include family, spouse, children, employment, education, age, illness, isolation, and many other matters which may be relevant to the particular offender.

40. The issue as to whether there should be a consecutive sentence may then arise.

41. There is no relevant statutory law in this case on this issue. This matter falls within common law.

42. There is no absolute rule at common law. It is a matter for judicial discretion to be exercised in all the circumstances of the case.

Decision

43. In this case the maximum sentence for the offences is 10 years. This particular offence falls neither at the top or bottom of the scale of this offence, but rather in the lower middle. A sentence of 4 years would be an approximate potential sentence.

44. In this case there was a plea - but very late. The plea was entered very nearly 9 years after the indictment was severed and the trial held on the first complaint. Thus, for years the victim has had to endure the anticipation of this trial. However, ultimately the appellant did enter a plea and thus saved the victim from having to give evidence and saved the State the cost of that trial. So some credit should be given to the appellant, but not as weighty as if it were an early plea. The plea did not come in 1999, ten years ago.

45. The appellant took tactical decisions in relation to his trials. He sought and obtained the severance of the indictment so that there were five potential trials. The appellant was entitled to do this and his decision may not be regarded as an aggravating factor.

46. He also took tactical decisions to seek judicial review and to bring a number of appeals. None of these decisions may be regarded as aggravating factors.

47. However, the consequence was that all the offences were not tried in 1999 or 2000. Thus the situation which came before the court in 1999 was different, it was not a situation where all the counts were tried together, and where a judge had to consider multiple counts of multiple complainants. Consequently, it may not be assumed that if all the counts had been tried together in 1999 that a court would have sentenced the appellant to four years. The situation would have been different - it would have been of a teacher indecently assaulting a number of his pupils, as opposed to one pupil, in his school. Thus, it may not be assumed that the appellant would have been sentenced to four years in total if all the counts had been heard together ten years ago.

48. In sentencing a consideration is whether there have been one or more assaults on one or more victims. If there are a series of counts and a series of victims then these are relevant factors. These factors were not before the court in 1999. Consequently, once again, it may not be assumed that if this count relating to complainant E had been before the court in 1999 that the sentence would have been one of four years.

49. Also relevant is whether an offender has been in a position of trust. In this case the appellant was a teacher, and the victim was a pupil in his school, as were all the complainants.

50. In this trial there was only one count. If there were multiple counts then each count would have to be assessed: the offence, the offender, the victim. Then having considered an appropriate sentence for each count an overall analysis would have been taken to consider what was proportionate, to determine the just and appropriate sentence in all the circumstances.

51. If a separate trial takes place on a single count then clearly that is not the same situation as if a single trial has taken place in relation to a series of counts. If there has been a conviction on a single count then the sentence reflects the seriousness of that offence, the position of that offender and that victim. However, if there have been convictions on a series of counts relating to a number of victims then the sentence should reflect the offences, the offender and the victims' situations. A judge is in an entirely different situation in a case where there is one count and one victim compared to a case where there are a series of counts and a series of victims. This applies even if all the offences occurred in a particular time frame.

52. The fallacy in the appellant's case was to assume that if all the offences had been tried together he would have received in effect a total sentence amounting to four years.

53. It is a matter of concern that the trial set for June, 2002 had to be adjourned to January 2004, because of a lack of judges. However, he then chose to seek judicial review and so the trial was adjourned further pending the outcome of that litigation.

54. While the matter of "delay" is not an aggravating factor, nor is it a matter detrimental to the appellant, (even though his tactical decisions to seek severance and judicial review has had this consequence), delay is a factor in the case insofar as it had an effect on the victim. The effect on the victim is worse because of a decade of litigation, the consequence is that the position of the victim is worse.

55. The issue of sentencing the appellant has arisen in relation to three complainants in trials over a ten year period. The appellant now submits that because he was sentenced to four years imprisonment in relation to complainant B, and for what was in effect a consecutive sentence in relation to complainant C, that he should receive no sentence of imprisonment for his offence against complainant E. The Court does not accept this submission.

56. On a plea of guilty to this serious offence the appropriate sentence for the offence is one of imprisonment. The appellant cannot avoid a sentence for a serious offence by taking strategic decisions in relation to it and other trials.

57. It is true that Finnegan J. in imposing the sentence in relation to the complaint by complainant B did so in a manner that meant that it was in effect a concurrent sentence. However, the situation in this trial is different.

58. The delay in this case coming to trial has been largely as a result of the identified strategic decisions by the appellant. The victim has had this trial pending for a decade. It was only when the case was before the Court in October, 2008 that the appellant pleaded guilty.

59. This is not a situation where a number of indecent assaults against a number of complainants are considered at or about the same time. Instead there have been a number of convictions over a ten year period for offences committed within approximately a four year span of years over 25 years ago.

60. The Court accepts the submissions of the Director of Public Prosecutions that a sentence imposed in this case does not equate to a consecutive sentence.

61. It would be an error to assume that if the appellant had pleaded guilty to this offence when he was sentenced on the complaints of B or C that the sentence imposed would have remained at effectively four years.

62. The Court is satisfied that a sentence of three years imprisonment is an appropriate sentence for the offence in this case. However, the Court is required to consider all the circumstances of the case, which includes the history of the case, the offender, and the victim.

63. The history of this case has been set out earlier in the judgment. In P.O'C. v. D.P.P. [2008] IESC 5, the Supreme Court, on the judicial review application brought by the appellant, refused to prohibit the trial. The appellant relied on the series of trials in his application. Finnegan J. stated:-

"The applicant relies on the following as constituting wholly exceptional circumstances. On the 5th October 1998 he was returned for trial in respect of charges against five complainants (A-E). On the 22nd February 1999 the trial was adjourned due to publicity. On 15th November 1999 the indictment was severed. Trial A commenced on the 15th November 1999 and the applicant was acquitted. Trial B commenced on the 24th January 2000 and the jury was discharged during the course of the trial. Trial C commenced on the 27th March 2000 and the applicant was convicted and sentenced to four years imprisonment. Trial B recommenced on the 22nd May 2000 and the applicant was convicted and sentenced to four years imprisonment with one year suspended. Trial D commenced on the 22nd June 2001 and the indictment was quashed. Trial E, the subject of this application for judicial review, was due to commence on the 10th June 2000 but was adjourned there being no judge available. On the 6th June 2003 the applicant was released from prison having served the sentences imposed upon him. Trial E was scheduled to commence on the 12th January 2004. The present judicial review application was taken on the 7th July 2003. It is submitted that if each of the trials had taken place in quick succession each trial judge would have had the opportunity to take into account the fact that the applicant was serving a term of imprisonment and this would avoid the imposition of a sentence which was excessive in all the circumstances. Should the applicant be convicted in Trial E the applicant would face a custodial sentence commencing ten years after the first return for trial and five years after serving a sentence arising out of the original indictment.

I am satisfied that these matters do not constitute wholly exceptional circumstances. They are relevant to the appropriate sentence to be imposed upon the applicant in the event that he is convicted but irrelevant to the fairness of his outstanding trial."

64. In this case the learned trial judge imposed a sentence of three years imprisonment, which was one year less than that imposed in relation to the offence arising on the complaint of B. It was effectively the same as that imposed in relation to the offence against complainant C. In effect those sentences were served concurrently.

65. The Court is satisfied that the previous convictions and sentences are relevant to the appropriate sentence to be imposed on the appellant.

66. The appellant has been sentenced to a three year term of imprisonment for his conduct to complainant E. The fact that he has previously served time for offences against other persons at approximately the same time does not per se mean that he should not be imprisoned for this offence.

67. There is no rule of law which states that a person who commits a series of offences within a few years time span if imprisoned on one offence will receive concurrent sentences for the other offences carried out at about the same time.

68. The underlying tactical decisions by the appellant are material. One accused may decide to have all offences heard together, with the inherent risks, but with the consequence that they are all dealt with at one time. Another, such as the appellant, may take an advised decision to seek separate trials. A single trial of several offences risks a higher sentence at that time, especially in a situation where a trusted person, a teacher, has abused a number of school pupils. Separate trials, on separate counts, where each pupil's case is heard in relative isolation, may enable other tactical decisions to be taken. If an accused is found guilty and sentenced on that count it is for that offence only.

69. However, the ultimate effect of such decisions to sever the indictment cannot mean that there could be no term of imprisonment for a conviction for a serious offence.

70. In sentencing, the position of the offender should be taken into account. This offender has served previous sentences for indecent assault. They all occurred during the same approximately 4 year time span as this offence. There was a probation report before the Court which relates to the single count before the Court. It appears that the appellant has lost sight of the victim and the harm he has caused, while he expressed regret and shame for his behaviour. In spite of the appellant's poor insight into the reasons for his sexual offending he was considered at low risk of reoffending, provided certain factors remained stable. These factors include his age, his supportive relationships with his family, his lack of addiction or mental health issues. The probation report advised that the appellant would benefit from a period of probation supervision.

71. It is also relevant to consider the victim. In this case the victim was traumatised by the event, and while she did not have to give evidence because of the appellant's late plea, she endured a decade awaiting the trial.

72. The Court is satisfied that there was no error in principle by the learned trial judge in determining a sentence of 3 years. However, this Court recollects what Finnegan J. stated in P.O'C. v. D.P.P. [2008] IESC 5, which observations are quoted earlier in this judgment. Considering the unique history of this particular case, the Court is satisfied that a portion of the three year sentence should be suspended. The Court will therefore suspend the last twelve months with a provision for probation supervision.

Conclusion

73. The Court will treat the application for leave to appeal as the hearing of the appeal and will quash the sentence. In its place the Court will sentence the appellant to three years imprisonment with the last twelve months suspended on condition that he attend probation supervision, subject to the condition that he engages in sex offender therapy as directed by the Probation Service.