Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Proseuctions -v- Cullen [2013] IECCA 47 (29 July 2013)
URL: http://www.bailii.org/ie/cases/IECCA/2013/C47.html
Cite as: [2013] IECCA 47
[New search] [Help]
Judgment Title: Director of Public Proseuctions -v- Cullen Neutral Citation: [2013] IECCA 47 Court of Criminal Appeal Record Number: 91/13 Date of Delivery: 29/07/2013 Court: Court of Criminal Appeal Composition of Court: Murray J., de Valera J., Hanna J. Judgment by: Murray J. Status of Judgment: Approved
Outcome: Dismiss Appeal -v- Sentence | ||||||||||||
THE COURT OF CRIMINAL APPEAL Murray, J. [CCA 91/13]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND IAN CULLEN APPELLANT
JUDGMENT of the Court delivered on the 29th July, 2013 by Murray J.
1. On the 19th March, 2013 the appellant was sentenced to a term of imprisonment of 6 years, the final three years of which were suspended on certain conditions. He had pleaded guilty in the Central Criminal Court to three counts of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990. All offences were committed in 2003 in the appellant’s bedroom when the complainant, his niece, was 5 years of age. 2. The appellant appeals against the sentence imposed by the trial court as being unduly severe and disproportionate. 3. The appellant grounds his appeal first of all on a submission that the learned trial judge erred in the manner in which he “constructed the sentence imposed”. Instead of fixing the term of imprisonment based upon his view of the seriousness of the offence before subsequently suspending a portion of it on account of mitigating factors, he ought to have first fixed a notional sentence based on the seriousness of the offence before considering the extent to which the mitigating factors applied to reduce the notional sentence. Having done this he should have considered whether any, or all, of the sentence imposed should have been suspended.
4. As regards the actual severity of the sentence the learned trial judge erred in principle in failing to balance adequately the mitigating factors in the case against the aggravating factors, and that the sentence was accordingly disproportionate. In particular it was submitted that the learned trial judge failed to adequately acknowledge the prejudice caused to the appellant as a result of a delay in the institution of the criminal proceedings in circumstances where the appellant was a child when he committed the offences. Background Facts 6. At the sentencing hearing Detective Garda Brady gave evidence concerning the circumstances of the offence. He gave evidence that the offences would occur when the appellant brought the complainant to his room to play with the playstation. The complainant later told her mother, in her own childish language that the appellant would make her suck his penis. He blindfolded her and she described him putting it in her mouth. She said that when she finished sucking it she could hear his zipper being pulled up. 7. Detective Garda Brady gave evidence that the complainant told her sister what had happened and then told her mother. Subsequent to this there was significant communication between the families of the complainant and the appellant, which resulted in the appellant being brought to the Granada Institute for counselling. As part of that process the appellant’s mother made further contact with the family of the complainant and advised them that the appellant had admitted the offences to his family. A letter of apology was provided to the complainant and her family. Ultimately a complaint was made to the Gardaí and the appellant was arrested and detained; nothing of evidential value emerged from his detention. When eventually the appellant appeared before the Central Criminal Court a proposal was made to the Respondent. As soon as that proposal was accepted the appellant pleaded guilty to the three offences referred to. All parties accepted at the sentencing hearing that this was a plea at the earliest available opportunity. 8. Counsel for the appellant in his submissions summarised the matters which Detective Garda Brady had accepted as correct when he was cross-examined in the following terms:
(b) the first complaint made to members of An Garda Síochána in relation to this matter was in November of 2009; (c) the Applicant had pleaded guilty at the first opportunity; (d) his actions had not caused any of the delay in the prosecution of the case; (e) the Applicant had no previous convictions; (f) the Applicant had not accrued any charges since the offences were committed in 2003; (g) the Applicant had sat his leaving certificate and obtained a degree in engineering; (h) the plea of guilty had spared the complainant the ordeal of cross examination; (i) the complainant had complained about the incidents in 2003 to her sister and mother; (j) As a result the Applicant had been sent to a counsellor with whom he visited regularly for a number of years; (k) The Applicant had admitted the offences to the counsellor, acknowledged that it had been a grave wrong and penned a letter of apology to the complainant and her family; (l) Due to the fact that the Applicant’s General Practitioner and Therapist did not believe him to be a risk to children the matter was not reported to the Gardaí; (m) The Applicant’s counsellor had provided a statement to Gardaí, which was contained in the book of evidence and disclosed that the Applicant was remorseful for his actions, had taken professional guidance, had no sexual feelings towards children, had felt that this Aunt Breda (the mother of the complainant) had given him a second chance by allowing to go to therapy and that in the view of the counsellor the Applicant was more of a risk to himself than anyone else.” 9. A victim impact statement, prepared by the complainant’s general practitioner, was read to the trial. That disclosed that in January, 2004 the complainant revealed to her mother and sister what had happened to her in the bedroom of her cousin, the appellant, over a period of time the previous year. Initially the complainant’s reaction seemed to be one largely of relief that these occurrences would not be repeated again but over the following years the complainant exhibited unusual and sometimes worrying behaviour resulting in hospital referral for specialist medical care. This concerned some occasions of self harm where she had cut her skin. Stress was diagnosed as the basis of her problems. As a result of professional advice she attended for counselling at three different stages to help her with her situation, and at the time prior to the trial she was attending her school counsellor. In 2009, six years after the assault had taken place, and when she was approximately 11 years of age she decided to make an official complaint concerning the sexual assaults. It was reported that she felt that she continued to suffer as a victim while her abuser proceeded with an apparently successful life without ever being required to answer for his crime. A few years prior to the trial it was recorded was a difficult time for her as she had to repeatedly relive her trauma with each disclosure to social workers, gardai and other persons. At the time of the preparation of the impact statement she was 14 years of age and found it increasingly difficult to interact normally with her peers. She felt socially isolated because of what she had gone through over the previous 10 years and feels that she should never become a mother because she feels that one cannot keep a child safe in this world. Submissions of the Appellant 11. Counsel for the appellant highlighted the following elements in mitigation, as raised at the trial, on behalf of the appellant:
(b) Since the commission of these offences the Applicant had led a blameless life, completing his leaving certificate, obtaining a degree in engineering before ultimately obtaining a good job; (c) The medical reports suggested that the Applicant had deep insight into his offending from an early stage, had admitted the offences, was deeply remorseful and was deemed to be a very low risk of re-offending; (d) The explanation provided to the counsellor at the time suggested that the Applicant had been in a relationship with an older and sexually experienced girl who had been vocally dissatisfied by his sexual performance. This had resulted in school yard bullying and feelings of distress and inferiority; (e) The delay in prosecution of the case was not the fault of the Applicant and had caused him significant prejudice. He had lost the significant protections provided by the Children Act 2001 relating to jurisdiction, sentencing, alternatives to incarceration and anonymity. He would now be placed on the sex offenders register for a period of time twice as long as would have been the case had he been convicted as a child.”
That is in contrast to a case such as the present. Here the offending came to an end, according to both the Complainant and the Applicant at least 10 years ago. He had not offended in that or any other respect since then, is married with a family and was in steady employment. All the evidence points to these having been incidents in his past which he bitterly regrets and which have never been repeated. The Court is satisfied that the criminal justice system cannot be indifferent to the fact that an accused person would probably have received a significantly more lenient sentence had he not been deprived in the particular circumstances of the case of what would otherwise have been his constitutional right to an expeditious trial. What weight must be given to that factor will obviously depend on the facts of the individual case. Finally, the court in imposing sentence in a case of this nature must have regard, not merely to the consequences which the Applicant's conduct have had for the Complainant but also to the serious consequences of the conviction for the Applicant himself altogether apart from the effect that any sentence imposed by the Court might have." 13. It was also submitted that the appellant fell within the category of very young offenders referred to in DPP v. DG (Unreported, 27th May, 2005). In that case it was stated:
14. Counsel emphasised that the appellant had no history of offending behaviour prior to the commission of these offences, nor since. He was a vulnerable 16 year old at the time of the commission of the offences and the Court should have borne in mind the need, as indicated in reports, for some continuing need for rehabilitation and therapy. It has been established that he has very little or certainly very low risk of re-offending. In addition, he faces ancillary consequences such as being placed on the sex offenders register. The period on the sex offenders register is twice as long as it would have been if he had been convicted as a child in 2003. 15. It was submitted that in all the circumstances the decision not to suspend a greater portion of the sentence amounted to a failure to adequately provide for the rehabilitative aspect of the total sentence which was, in any event, excessive and disproportionate in the circumstances. Submissions of the DPP 17. In any event, it was submitted, in imposing a sentence a trial judge is not required to follow a formalistic approach and that when this Court is reviewing a sentence of a trial judge it should look at the substance of the manner in which the imposition of the sentence was carried out in order to determine whether it complied essentially with the relevant principles of sentencing. In fact, the trial judge did determine the notional sentence in this case which, as it happens, was below what might normally be the notional sentence for such offences, and then applied the mitigating factors in determining the final sentence to be imposed. Suspending a sentence is one means by which a judge may mitigate a sentence that might otherwise, but for mitigating factors, be imposed.
18. As regards the actual sentence counsel for the DPP accepted there were mitigating factors, including that he is a low risk of re-offending, was genuine in his remorse and has made genuine efforts at rehabilitation. While these and other mitigating factors raised at the trial were matters to be taken into account the learned sentencing judge did so and his sentence could not be said to be excessive or disproportionate. It was submitted that the custodial element of the sentence imposed was appropriate having regard to the serious or aggravating aspects of the offences, namely, (a) the age of the victim; (b) the breach of trust; (c) the nature of the acts involved; (d) the use of a blindfold; (e) the devastating impact on the victim. 19. In the circumstances, it was submitted, the trial judge imposed a sentence having duly balanced all factors, which was clearly within the parameter of normal sentencing practice and degree of severity. Decision 21. Accordingly the Court does not consider that there was anything wrong in the manner in which the sentence was “constructed” in this case. 22. Furthermore, the Court reiterates the dicta which have often been made by this Court when reviewing sentences of a sentencing court and which are reflected in the dictum of Kearns, J. in DPP v. McC [2008] 2 IR 92 at 105 to the following effect:
24. In imposing sentence it is evident from the transcript that the learned trial judge also took into account all the other relevant factors which he was required to take into account as regards the gravity of the offence, the particular circumstances of the appellant and the mitigating factors. Of course, counsel for the appellant submits that the balance as struck by the trial judge was incorrect and resulted in a disproportionately severe sentence being imposed. 25. One of those mitigating factors is the delay in bringing the prosecution. Counsel pointed out that the appellant had admitted to the assaults to family members the year after their commission, and during that year underwent therapy sessions and wrote a letter of apology to the appellant family admitting the wrongdoings. Between 2004 and 2009 neither the general practitioner nor the therapist reported the matter to the gardai because there was not considered to be any risk of re-offending. The first complaint to the gardai was made over 6 years after the offences were committed, 8½ years had passed by the time he was charged in April, 2012 and nearly 10 years when he was sentenced in March, 2013. 26. It must not be forgotten that the complainant was only 5 years of age at the time when the offences were committed. It is also evident that the essential concern of the complainant’s mother was to protect the emotional wellbeing of such a young complainant in the years after the commission of the offences. In the meantime there was a separate focus on therapy for the appellant during which time, as previously indicated, he accepted responsibility for the offences and wrote a letter of apology to the child’s mother. Again as previously indicated, matters did not progress at all well for the complainant who continued to suffer from the traumatic consequences of the offences as outlined in the victim impact statement read to the court. Eventually, when she was somewhat older but still a young girl, she decided that the matter should be reported to the gardai. The delay in making a complaint to the gardai and the initiation of a criminal investigation must be seen in the light of those facts and the overall circumstances of the case. It is true that the appellant did not specifically bring about any delay but it was the nature of the offences themselves and their circumstances which led to the delay as so often happens in cases involving young victims of sexual abuse. A victim has an autonomous right to expect that the law will take its course. Undoubtedly the complainant’s mother in this case was concerned with the wellbeing of her child and wished to protect her from any further emotional trauma that criminal proceedings might involve. Eventually, the child, when she got older, considered that she should make a complaint so that the law could takes its course. 27. The appellant might well have been dealt with under the Children Act, 2001 if a prosecution had been initiated at a very early stage, although counsel for the DPP questioned whether it was likely that any proceedings would have even then progressed sufficiently far to be disposed of before he reached his eighteenth birthday. Nonetheless, it is a fact that should be taken into account but it has to be borne in mind that the delay flowed from the nature and circumstances in which the offences were committed, particularly as regards a complainant of such a young age. In any event, it is not argued that the learned trial judge ignored any of the mitigating factors but rather that in balancing all the circumstances of the offence with the circumstances of the appellant he failed to give adequate consideration or weight to the mitigation present. This, it was submitted, resulted in a sentence which was disproportionate in the circumstances. 28. There is no doubt that there is a significant range of mitigating factors to be taken into account in this case. These were highlighted by counsel for the appellant and are referred to above. From very soon after the commission of the offences the appellant engaged with therapy, acknowledged his culpability to the mother of the victim and has pursued a blameless life since then. It is accepted that there is little risk of re-offending. In the meantime he has graduated at third level with an engineering degree and is employed as an engineer. If it had been possible to prosecute him when he was under the age of 18 years he would have had the benefit of anonymity and a lesser period on the sex offenders register. Since, as has been set out above, it was the very youth of the complainant at the time of the offences as well as the nature of the offences themselves which in reality resulted in the delay in bringing the prosecution, it cannot be said that the appellant is totally blameless in this respect. While delay is a factor the Court does not consider that in the circumstances of this case it could be treated as a major determining factor. 29. As this Court has repeatedly stated, when considering an appeal against sentence by the person sentenced, it is not for this Court to arrive at a sentence which it considers it might impose in all the circumstances of the case but rather the task of the Court is to determine whether, having regard to the evidence before the trial court, the sentencing judge erred in principle in imposing the sentence which he or she did. 30. The offences in this case were self-evidently grave, particularly when committed against a trusting child of only 5 years of age, and should normally result in a significant custodial sentence even if the offender is as young as 16 years.
31. The learned trial judge assessed the offences as meriting a sentence of 6 years imprisonment. Such offences committed against a 5 year old child by a mature adult would, in principle, attract a significantly heavier sentence than that. The appellant, quite understandably, does not take issue with the trial judge’s decision that the offences, in themselves, merited imprisonment for 6 years. 32. Having arrived at that decision the learned trial judge went on to refer to the range of mitigating factors which had been advanced on behalf of the appellant in the court of trial. 33. The trial judge suspended half the sentence of 6 years but counsel for the appellant in his submissions to the Court, for all the reasons advanced, contends that the learned trial judge was wrong in not suspending “a greater portion” of the sentence. 34. The Court is satisfied that in deciding to suspend half of a 6 year sentence and not a greater proportion of it the learned sentencing judge was acting properly within the ambit of his discretion. It cannot be said, in the Court’s view, that in failing to suspend a greater portion of the sentence that he offended against any sentencing principles. 35. Similarly, the Court is satisfied that the sentence, and the ancillary orders made, such as regards the sex offenders register, cannot be considered disproportionate or excessive. 36. It is noted that material placed before the sentencing court on behalf of the appellant indicated that he should have the benefit of continuing therapy and that such therapy was available within the prison service. The Court assumes that such therapy as is provided by the prison service will be provided to the appellant. 37. For the reasons stated above the Court will dismiss the appeal.
| ||||||||||||