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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Christopher Griffin [2011] IECCA 62 (07 October 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/C62.html
Cite as: [2011] IECCA 62
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Judgment Title: DPP -v- Christopher Griffin Composition of Court: Fennelly J., Budd J., Moriarty J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Appeal against sentence allowed | ||||||||||
CCA No: 106/07 THE COURT OF CRIMINAL APPEAL Fennelly J.Budd J. Moriarty J. BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND CHRISTOPHER GRIFFIN APPLICANT Judgment of the Court of Criminal Appeal delivered the 7th day of October 2011 by Mr Justice Fennelly This is an application for leave to appeal against the severity of a sentence of life imprisonment imposed on the Applicant by Carney J at the Central Criminal Court on two counts of rape. The applicant is named in the proceedings. The complainant communicated to the Central Criminal Court that she had no objection to his name being made known, despite legislation entitling her to anonymity. The applicant was tried by a jury at the Central Criminal Court in January 2007. There had been an earlier trial at which the jury disagreed. The indictment contained eleven counts. Two were of rape: one laid as being contrary to section 48 of the Offences against the Person Act, 1861, as amended; one contrary to section 4 of the Criminal Law (Rape)(Amendment) Act, 990: penetrating the complainant’s mouth with his penis. There were also nine counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. The jury convicted the applicant on 18th January 2007 on all eleven counts. On 24th April 2007, Carney J imposed sentences of life imprisonment in respect of each of the counts of rape and sentences of five years on each of the counts of sexual assault, all to run concurrently. There is no complaint concerning the sentences for sexual assault. The facts The victim was the daughter of a woman with whom the applicant cohabited at three different addresses in Dublin. The offences were committed over a period of some eight years. The first sexual assault occurred between June and December 1993, when the complainant was eight years of age. The applicant was then twenty four years of age. The last offence was the rape; this occurred in 2001, when the complainant was sixteen. The section 4 rape was committed in the year 1998 when she was about thirteen. All the offences were committed in the three different homes where the complainant lived with her mother and the applicant. There was a progression in seriousness of the offending over the eight years. The sexual assaults occurred when the complainant’s mother was out of the house. The first sexual assault consisted in the applicant rubbing himself against the complainant. Later he would kiss her and lift her onto him, rubbing her against him. Then he touched her vagina outside her clothes and forced her to touch his genitals outside his clothes. Later he made her masturbate him; he lay on top of her; he would digitally penetrate her vagina, which she found painful. In 1998, he made the complainant perform oral sex on him, holding her down and made her sleep in his bed afterwards; that was the section 4 rape. After this, the complainant told her mother and her grandmother about the abuse. Her mother, though upset, did nothing about it. The complainant felt that there was nothing that she could do, that she was powerless and that she had lost her relationship with her mother. The complainant did not report the matter to the gardaí, as she was living in an environment where no one would think of going to the gardaí about anything. The complainant was in fear of the applicant, though the evidence is that he never threatened her in relation to the abuse. Frequently, he would cry after abusing her and tell her not to let him do it again. This made her feel responsible for the abuse. He gave her gifts, in particular a motor car. The final offence was the rape committed in 2001. Counsel for the applicant makes the point that there was no completed act of intercourse. This event appears effectively to have brought the abuse to an end. The complainant left the home some months later and reported the matter to the gardaí in 2002. She said that she feared the applicant would abuse her step-sisters. The sentence Following the delivery of the jury verdicts, on 18th January 2007, the learned trial judge indicated that the sentencing hearing would take place at a later date but said that it was his practice to allow the jury to hear “what has been excluded from them up to now.” He said that he wanted “evidence of the accused’s character and antecedents.” Following inquiry from defence counsel as to the purpose of this procedure, the learned trial judge said that the evidence would be given again at the sentencing stage. Detective Sergeant Walter O’Connell then gave evidence in the presence of the jury of the previous convictions of the applicant. Following inquiry from the learned trial judge as to what had happened since the previous trial, the witness said that there had been a number of serious incidents between “the two families.” There was then reference to a “Security Report,” which is not before this Court. The witness gave evidence, which he repeated in substance at the later sentence hearing, of a number of violent incidents. On 7th October 2005, five shots were discharged through the front sitting room of the applicant’s home; one bullet struck him in the elbow. The applicant refused to co-operate with the garda investigation of the incident. On 5th November 2006, shots had been fired into two houses which were homes of members of the complainant’s family. On the following day, hand grenades had been thrown into the homes of the applicant and his nephew. Another person was shot in or near the Financial Services Centre and a different person was shot dead in his home. The witness said that there had been armed patrols in the area since the commencement of the trial. The learned trial judge remarked that that was why the trial was taking place in Cloverhill. The applicant was remanded in custody to the sentence hearing on 24th April 2007. There was no evidence as to whether the applicant was involved in or responsible for any of these events, other than as a victim of one shooting. Garda Niamh Shelley gave evidence at the sentence hearing on 24th April 2007 that the applicant had 18 previous convictions. Although seven of these were for road-traffic offences, two of those warranted custodial sentences: in 1984, when he was only fifteen, he received a sentence of two years in Trinity House; in 1986, he received a twelve-month sentence in St Patrick’s Institution. These were for unauthorised taking of motor vehicles. Contemporaneously, the applicant was being convicted for more serious offences. In October 1986, he received a sentence of four months’ detention for aggravated burglary with firearms and unauthorised taking. On 3rd December 1986, he was convicted of possession of firearms and ammunition for which he was sentenced to six years’ imprisonment. In February 1987 he was again convicted of a firearms offence and sentenced to three years’ imprisonment. On 28th May 1987, he was convicted of robbery and possession of a firearm and sentenced to nine years’ imprisonment. The applicant was born in 1969. He is one of eight children. The gardaí were unaware of his means of income or whether he had ever had any employment. The garda also gave evidence of the impact of the offending on the complainant. She had suffered sleep deprivation, loss of appetite and weight loss. The court had before it the Victim Impact Report prepared by Michael Dempsey, Senior Clinical Psychologist, following interview with the complainant. He was of the opinion that the complainant was traumatised both by the abuse but also by constant fear. On a scientific scale, he found that she suffered from post traumatic stress disorder to a severe degree. Her symptoms were now chronic. Counsel for the applicant urged the learned trial judge that his client had, in essence, been convicted of charges of sexual assault and of one count of rape. He said that the sentence should not “reflect any of the extraneous issues…” The learned trial judge said that he had very carefully considered what had been described as “the extraneous events.” He said that it was clear that there were two sides to these and that “it would hardly be fair to visit the entirety of that situation upon him,” i.e. on the applicant. The learned trial judge took account of the gravity of the offences and of the fact that the victim had been severely traumatised. He described the list of the applicant’s previous convictions as “horrendous” and said that the sentences imposed had apparently had no effect on him. His decision was as follows:
He imposed the sentences already mentioned: life imprisonment on each of the rape counts and sentences of five years to run concurrently on each of the counts of sexual assault. The sentences were to run from 18th January 2007, the date when the applicant was taken into custody. The appeal: the applicant’s arguments Mr Michael O’Higgins, Senior Counsel, submitted, on behalf of the applicant that the learned trial judge was in error: firstly, in imposing a sentence of life imprisonment and, secondly, in treating the applicant’s record as “horrendous.” He made a number of points regarding the nature of the offences. There was no evidence of threats or of violence. He described the sexual assaults in some detail: they were generally acts of self-gratification. The incident of oral sex was the only time when he ejaculated. The rape committed in 2001 was, according to counsel, was rape “in law,” but did not continue to ejaculation. According to the evidence of the complainant, he inserted his penis a bit and held her down with his hands. She was wriggling to escape. She left the room. The abuse then stopped. Counsel said that the trial had taken place in Cloverhill in a highly charged atmosphere. Events occurring outside court were very widely reported. There were unsuccessful applications for discharge of the jury. The learned trial judge instructed the jury to ignore the press reports. The so-called extraneous events were not relevant, although the learned trial judge stated at the sentence hearing that he did not consider them at all “extraneous.” It was hard, counsel said, to see how any of this evidence could properly be given. Counsel said that thirteen of the previous convictions had occurred when the applicant was a juvenile. With a few exceptions, there had been summary disposal. From 1993 onwards, there were only minor offences, except, of course, for these sexual offences. Counsel argued that this case could not justify a sentence of life imprisonment. He referred to some unreported cases to suggest that typical sentences might be in the range of twelve years, subject to mitigation. The appeal: prosecution arguments Ms Deirdre Murphy, Senior Counsel, on behalf of the Director of Public Prosecutions, said that there were no mitigating factors. She agreed that it was the previous convictions which justified the life sentence. Taking them into account, the applicant had engaged continuously in criminality from 1980 to 2001. Decision of the Court It is appropriate to advert in the first instance to what have been described as the “extraneous events.” The procedure followed by the learned trial judge on 18th January 2007, following delivery of the jury verdict, was unusual. Evidence was given, in the presence of the jury, after verdict, of the previous convictions of the applicant and of the “extraneous events.” The purpose of this procedure appears exclusively to relate to the learned judge’s wish that the jury be informed of matters which had, it has to be emphasised, quite properly, been withheld from them during the trial. The judge made it clear that the actual sentence hearing would take place at a later date and that the evidence would then be repeated as it was. It does not appear that this evidence, therefore, performed any function or served any legal purpose. The jury had performed their task of bringing in a verdict. They had no role in sentencing. On general principles, it is undesirable that the courts engage in evidence gathering without any legal objective. However, the only question before this Court is whether it affected the outcome in terms of the sentence imposed. The answer to that question depends on the evidence given and the legal rulings and reasoning of the learned judge on 24th April 2007. In the view of this Court the so-called “extraneous events” cannot be taken into account in deciding the correct sentence to impose. Evidence was given by a senior officer of An Garda Síochána of serious criminal acts—the use of firearms and hand grenades—in what it is reasonable to infer was some form of feud between criminal elements relating to the trial of the applicant. However, no evidence was given identifying the perpetrators or implicating the applicant. The learned judge expressed the view that these matters were not at all “extraneous.” The phrase used by the learned trial judge—that it would not be “fair to visit the entirety of that situation upon him”—seems to imply that some responsibility should be laid at the applicant’s door. However, the applicant was not charged with the commission of any of those criminal acts. In the view of the Court, these matters should have been left entirely out of account. It is by no means clear how the learned trial judge did weigh these matters in the balance when deciding on the sentence he would impose. His sentencing remarks are quoted above. He emphasised “the utmost gravity” of the offences of which the applicant had been convicted and his “appallingly bad” record. It seems to the Court that the learned trial judge attributed some responsibility to the applicant for the “extraneous events.” In the course of the sentence hearing, he had expressed the view that the material in question was not “at all extraneous.” The offences themselves were extremely serious. The applicant was in a position analogous to a parent: he was the partner of the complainant’s mother. He was the father of the complainant’s half sisters. Even the point made by his counsel, that he provided supervision in a family setting, tells against him in that respect. The applicant, though a young man at the start of the offending, was much older than the complainant, who was necessarily vulnerable and dependant. Two of the offences amounted to rape, one being oral rape. The applicant persisted in the offending over an eight-year period. It became progressively more invasive over that time. The complainant’s complaints to her mother were ignored. The repeated commission of these offences during the tender years of a girl growing from eight to sixteen years is an especially aggravating element. It deprived the complainant of enjoyment of her youth and of her relationship with her mother, who so dramatically and so irresponsibly failed to respond to her complaint. Unlike some of the comparative cases, this is not a case where the applicant can advance any mitigating factors. He has contested the charges at every stage. Unlike other accused persons, he cannot claim to have spared the complainant the ordeal of giving evidence, an ordeal she had to undergo on two occasions. The courts have, it has to be said, dealt with a great number of cases of sexual abuse over the past twenty years or so. Children, in many of these cases, have been abused by relatives, teachers, clergy, family friends and others from childhood to their late teenage years. In many of these cases, rapes have been committed, violence has been used and threats uttered. The present case would probably find its place in the middle tending to the higher part of the spectrum of these cases. It does not exhibit the level of violence which is present in many other cases. The number of counts is often much greater than here. Nine of the counts are for sexual assault, for which the maximum sentence is five years. The judgment of Finlay C.J. in People (DPP) v Tiernan [1988] I.R. 250 lays down authoritatively the manner in which our courts approach the matter of sentencing for the crime of rape. At page 253, the Chief Justice said:
The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration. In addition to those damaging consequences, rape can distort the victim's approach to her own sexuality. In many instances, rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease and the possibility of a pregnancy and of a birth, whose innocent issue could inspire a distress and even a loathing utterly alien to motherhood. Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions. All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment. 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.” It is fair to acknowledge that these principles were not contested on behalf of the applicant at the hearing. Counsel accepted from the outset that there had to be a substantial sentence of imprisonment. The real issue in this case is the appropriateness of a sentence of life imprisonment. In Tiernan, Finlay C.J. also pointed out that life imprisonment had been the ststutory maximum sentence for rape for more than a century. In People (Director of Public Prosecutions) v R.McC; Same v C.D. [2008] 2 IR 92, the Supreme Court considered, in a context different from the present, the appropriateness of sentences of life imprisonment in two different cases of multiple rape. Carney J had imposed life sentences on two defendants who had pleaded guilty to a large number of serious sexual offences including rape against the defendants’ own daughters and other relatives. The points certified by this Court to the Supreme Court concerned the interpretations of section 29 of the Criminal Justice Act, 1999 and, in particular, whether it was an error in principle to impose such sentence, without reduction, notwithstanding the entry of guilty pleas and the absence of any prior convictions. Kearns J (as he then was) noted the difficulties attendant on life sentences, saying at page 106:
At an earlier point at page 105, Kearns J had stated that the instances of imposition of a life sentence, particularly in the case of a guilty plea, would “of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.” Although the certified question in each of the appeals considered by the Court was the effect of section 29 of the Act of 1999 on the mitigating value of a plea of guilty, there is a strong theme running through the judgment that the imposition of a maximum discretionary life sentence, while permissible in principle, would be rare and exceptional. People (Director of Public Prosecutions) v P.S. [2009] IECCA 1(Judgment 28th January 2009) concerned convictions for a number of sexual offences including two counts of rape committed against young boys over a two and half year period. The applicant was a friend of the victims’ father. The offending was of a particularly depraved character and was attended by significant violence. In the view of The Court of Criminal Appeal, “the offences were at the most serious end of the scale……” Unlike the present case, the applicant accepted responsibility from an early stage and pleaded guilty. However, he had a number of previous convictions for similar offences against boys. The trial judge considered that, having regard to both the aggravating and mitigating circumstances, the offences merited a sentence of twelve years imprisonment, but that it should be mitigated to ten years. Nonetheless, having regard to the applicant’s “total failure to respond to significant sentences for serious sexual offences,” he considered that the case fell “into the small category of cases which merit a non-mandatory life sentence.” Finnegan J delivered the judgment of this Court. It considered that the applicant represented a continued danger to the public. Nonetheless, the Court considered that could appropriately be dealt with by a determinate sentence with significant post-release supervision. Finnegan J observed:
In People (Director of Public Prosecutions) v Finn [2009] IECCA 96, the same judge delivered a judgment for this Court in which he emphasised the need for a sentencing judge to carry out a careful analysis of aggravating and mitigating circumstances so as to arrive at a sentence appropriate to the individual case. He said:
The Court does not consider that the offending in this case, taken as a whole, while extremely serious, is in such an exceptional category of seriousness as to warrant the imposition of a life sentence. The learned trial judge seems to have paid particular regard to the serious criminal record of the applicant in order to reach the conclusion which he did. He described the record as “horrendous.” It was undoubtedly extremely bad. There were eighteen convictions, several of them involving the use of firearms. Two were respectively for aggravated burglary and robbery. It must, at the same time, be noted that the majority were committed while the applicant was a juvenile and that a number were road traffic offences. The key sentence in the sentencing decision was that “this is a case of such an order of gravity and the accused man’s record is so appalling that a discretionary life sentence is justified.” Reading the sentencing remarks in their entirety, it seems clear that the learned trial judge treated the record of the applicant as including the so-called extraneous events. In that, the Court considers that he fell into error. This Court is, of course, satisfied that it was perfectly proper to take account of the applicant’s very bad criminal record, even if it was different in nature from the offences in question. The judge did not, however, explain how the case fell into the quite exceptional category of cases where a mandatory life sentence is warranted. He merely remarked that this Court had started to uphold discretionary life sentences, without noting that this would apply only in exceptional cases. The Court considers that the learned trial judge erred in the imposition of life sentences on the two counts of rape. The Court, nonetheless, considers that, for reasons already set out the case warranted the imposition of a very severe sentence. The principal elements can be recapitulated as follows:
The quasi-parental relationship between the complainant and the applicant; The disparity of ages; The length of time over which the offences were committed and their number; The fact that two of the offences were of rape; The extremely severe trauma suffered by the complainant; The very serious list of previous convictions. Taking all these considerations into account, the Court considers that a sentence of fifteen years imprisonment is warranted in respect of the first two counts. To that extent, the Court will treat the application for leave to appeal as the hearing of the appeal and will substitute a sentence of fifteen years. | ||||||||||