Irish Court of Criminal Appeal
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Cite as: [2013] IECCA 67
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Judgment Title: Director of Public Prosecutions -v- Hegarty Neutral Citation: [2013] IECCA 67 Court of Criminal Appeal Record Number: CCA Ref: 44CJA/11 Date of Delivery: 31/07/2013 Court: Court of Criminal Appeal Composition of Court: Murray J., de Valera J., McGovern J. Judgment by: Murray J. Status of Judgment: Approved
Outcome: Grant application of DPP | ||||||||||||
THE COURT OF CRIMINAL APPEAL Murray, J. [44 CJA/11]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND PATRICK HEGARTY APPLICANT
JUDGMENT of the Court delivered on the 31st day of July, 2013 by Murray J.
1. This is an application by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993 in which he seeks an order of the Court quashing the sentence imposed at the trial on the above named respondent on the grounds that the sentences imposed were unduly lenient. (The respondent had separately applied for leave to appeal against his conviction and that application was refused in a separate judgment of this Court). Should the DPP (the applicant) be successful in his application then it will be a matter for the Court to impose such sentence as it considers appropriate in the circumstances of the case. 2. On the 20th day of January, 2011 the respondent was convicted after an eight day trial on Counts 1 to 11 inclusive, and Counts 18 to 23 inclusive on the indictment. Counts numbered 1, 4, 6, 7, 8, 9, 10 and 11 were counts of rape contrary to s.48 of the Offences Against The Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, as amended. Count No. 5 was a count of rape contrary to s.4 of the Criminal Law (Rape) Amendment Act, 1990. Counts numbered 2, 3, 18, 19, 20, 21, 22 and 23 were counts of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990. 3. On the 4th February, following his conviction by a jury, the respondent was sentenced at the Central Criminal Court to a sentence of 7 years imprisonment with 5 of those years suspended for 5 years in respect of Counts number 1, 4, 5, 6, 7, 8, 9, 10 and 11. These were the rape offences referred to above and the sentences were to run concurrently. On Count No. 3, one of the sexual assault cases, he was sentenced to 5 years imprisonment 3 of which were suspended. As regards the remaining counts of sexual assault, namely, Counts numbered 2 and 18 to 23 inclusive, he was sentenced to a period of imprisonment of 6 months. All of these were to run concurrently. Background Facts 5. At the hearing of the Court at which sentence was imposed a garda witness gave a summary of the essential facts of the case and the victim herself read a prepared victim statement to the court. Three witnesses as to the respondent’s good character were called on behalf of the defence. 6. For the purposes of this application it is not necessary to recite in full the evidence that was given before the sentencing court. For present purposes the Court proposes to adopt the summary of the factual evidence in the case relied upon by the DPP in this application as being a fair summary with which no issue was taken by the respondent.
The Victim was then fourteen years old. The following year, when she was fifteen, the Victim travelled to Ireland on her own to stay with the Respondent’s family and help her Aunt, the Respondent’s wife, who ran a Bed and Breakfast. She stayed for approximately five weeks. After she had been there for about a week the Respondent plied her with alcohol one day. The following day she felt ill and later that evening she accompanied the Respondent in his car to a public house where he was going to pick up his daughter from work. He told her to wear a skirt and, on the way, gave her a drink from a flask which caused her to become weak and lose some feeling in her arms ‘and then I felt all weak and my arms were like loosened floppy” (Transcript Day 1, p.27, L.17). When they arrived at the public house, the Respondent pulled up some distance away in a car park, put the Victim’s seat back, lay on top of her and inserted his fingers in her vagina (Day 1, p.20, L.10). ‘I was trying to say no. His hand was over my mouth and he was telling me to shush and he said he had some things to teach me … and he made me bleed’ (Day 1, p.18, L.17-23) The Respondent then threatened the Victim that if she told anybody: ‘he would say to everybody that I was a liar and that it would be making the family split up’. (Day 1, p.19, L.7-9) The Respondent took the Victim’s underpants which was covered in blood and washed it in the public house when he went in to collect his daughter. The Victim had never before had sexual intercourse. She feared that if she told anybody the Respondent would carry out his threat to: ‘tell everybody I tried to come onto him … that I was a liar and … who would believe me because I was a silly little girl’(Day 1, p.20, L.15-17) Over the course of the following weeks the Victim would often accompany the Respondent when he went out in the car. ‘he said if I didn’t go with him he would do the same to other members of the family so I felt like I had to go with him’. (Day 1, p.21, L.17-18) On one occasion he brought her to what appeared to be an unoccupied flat ‘It was not a lived in flat there was a room with a bed in it and the mattress was tatty and stained … then he tied my hands together, pinned me on the bed, tied my hands to the headboard of the bed … took off his clothes … he was kneeling over me and he tried to push his penis into my mouth and I was struggling with my head and I kept my teeth tightly shut’. (Day 1, p.21, L.22) The Respondent then took off the Victim’s lower clothes and as she tried to struggle free and was saying no, he raped her. Afterwards, the Respondent ‘kept saying he had to teach me and he was the one to teach me and I wasn’t to say anything to anyone because he would tell everybody that I was lying’. (Day 1, p.22, L21-22) On several other occasions when the Victim was out with the Respondent in the car he would pull over in the car and rape her. She ‘told him no all the time, I said I didn’t want it … I’d be crying (Day 1, p.23, L.25-29) The Respondent always gave the Victim alcohol before committing these offences. He constantly touched the Victim’s breasts and private parts in his home while nobody was watching. This happened almost daily. When the Victim was seventeen years old, her then boyfriend, who gave evidence at the Trial, overheard the Respondent speaking to the Victim on the phone saying ‘can’t wait to see you again … miss you … look forward to seeing you again’. (Day 3, p.4, L.16-18) The boyfriend subsequently informed the Victim’s parents. The Victim’s father telephoned the Respondent and accused him of committing sexual offences against his daughter. (Day 2, p.51, L.6-8) Subsequently, in July, 1995, the Victim’s father intercepted a letter sent to his daughter at her home address by the Respondent. It read as follows: ‘’Dear …, I am writing to apologise for my part in our actions which have caused so much sufferings. I am middle-aged, you a teenager. Being the adult, I should have known better. I should have put a stop to it and blame myself and would do so for the rest of my life. I was advised to see a counsellor, which I did. He was highly recommended. He has been a great help to me. He strongly urges that you take similar advice. I cannot find the right words to say how deeply sorry I am and for the terrible suffering caused to so many others. I say again, I am the adult. I should have known better. Paddy’. (Day 2, p.51, L.7-16) 7. The following is an extract from the victim’s statement of the victim which she read at the hearing:
9. On behalf of the defence the first witness was a former superior of the respondent in his place of work. The witness had been on the interview panel that had initially selected the respondent for his job in 1985 and by the time of the trial had known him for almost 26 years. He had found him over the years to be an exemplary employee, a caring family man and recognised as such. In all the years he had known him his honesty and reliability had never been called in question. At social events connected with the firm he had always been well behaved, he was well liked and respected by all his fellow employees including the female employees. He had been “absolutely stunned” when he had learned of his offences just some two weeks before coming to give evidence. 10. The second witness called by the defence was a person who worked in the hospitality industry and had contact with the respondent by virtue of the fact that the respondent’s wife ran a bed and breakfast business in [the southwest]. She had also become a close friend of one of the respondent’s daughters and thus was a regular visitor to their household and other events such as family gatherings, family celebrations, christenings and the like. She had never seen the respondent misbehave in the slightest way. She described him as a “pure gentleman” and a very nice man. From her close observations of the family he was an excellent husband, father to his children, a great grandfather and proud of all his children and grandchildren. There had never been any suggestion of any inappropriate behaviour on his part with her or anybody else and she was completely shocked when she learned of his conviction. 11. The third and final witness in mitigation for the defence was a person who is the wife of a nephew of the respondent. She had known the respondent since 1993 and was in close contact with him and his family as a regular visitor to their home. She also described him as a family man proud of his children and a most welcoming person. The respondent often visited her home and young family. Anybody in the community who knew him were completely stunned by news of his conviction. The witness considered what he had done as being completely out of character. She also referred to him as being a kind and charitable person and the respondent and his wife were the first people they turned to when she had a tragedy in their own family. 12. That concluded the evidence given at the sentence hearing. Grounds of Application
(b) (i) The learned trial judge erred in principle in relying on a report of the Inspectors of Prisons dated 29th July, 2010 and in particular where the report had not been put in evidence and no opportunity was given to counsel for the DPP to make any submissions with regard to it. (ii) He gave undue weight to the conditions in Mountjoy Prison in circumstances where there was no evidence before the court as to the prison in which the respondent would be required to serve any sentence imposed on him.
(iii) The sentencing court failed to have any sufficient regard to the impact of the offences on the victim.
(iv) The learned sentencing judge erred in principle in failing to attach a sufficient importance to the gravity of the offences and the totality of the sentence which should be imposed in the circumstances of the case. In particular there were no sufficient grounds for suspending the sentences in question. (v) The learned sentencing judge attached undue or disproportionate weight to the mitigating factors advanced on behalf of the respondent and the principle of rehabilitation with insufficient weight being attached to general deterrents. 14. Counsel for the DPP drew the Court’s attention to the aggravating circumstances surrounding this case which included the victim’s young age, that the perpetrator was an uncle who was effectively in loco parentis at the time and thus he committed a significant breach of trust. There was also the manner in which the accused secretly plied the victim with alcohol. The rape in the flat was surrounded by particularly aggravating circumstances. Premeditation and planning on the part of the accused was evidenced by the giving of jewellery and alcohol to the victim and in addition he used such devices as persuading her that nobody would believe her if she complained, and the like. Counsel for the DPP also submitted that the trial judge gave undue weight to the age of the respondent and to the other mitigating factors. 15. It was also submitted that the trial judge erred in principle in relying on the report of the Inspector of Prisons dated 29th July, 2010 in circumstances where the report was not in evidence before the court and no opportunity had been given to counsel for the DPP to make any submissions with regard to it. In this context it was also submitted that the learned sentencing judge erred in giving any or undue weight to the report in circumstances where there was no evidence before the court as to the prison in which the respondent would serve any sentence imposed on him. Submissions on behalf the Defence The Sentencing
18. He then went on to refer to a decision of this Court in DPP v. MS where the Court held that “The function of the Court in imposing sentence is manifold. It involves punishing the offender, protecting society and offering the possibility of rehabilitation through humane disposal within the penal system of a violent perpetrator.” He also cited a dictum of Denham J. in DPP v. M [1994] 3 I.R. 306 where this Court stated: “The purpose of sentencing is about rehabilitation and not about vengeance.” He then turned to state that he had considered the report of the Inspector of Prisons to the Minister for Justice, Equality and Law Reform dated 29th July, 2010. He referred to various aspects of that report concerning prison conditions which he said made clear that in some prisons prisoners were obliged to live in a small space with no sanitation. These are subject to the humiliation of “slopping out” having been described by the report’s order as “a cruel and inhuman procedure”. He referred to further bad aspects of the prison regime such as overcrowding and that in one prison prisoners were sometimes locked up for 23 out of 24 hours. The trial judge said that the report “places the court in a very difficult situation. Any period of imprisonment for a man of Mr. Hegarty’s age would be difficult, but in present circumstances would be particularly difficult. It would also be difficult for his wife and family.” Nonetheless, he stated the convictions must be marked by lengthy sentences notwithstanding the matters contained in the report of the Inspector of Prisons and other mitigating factors in this case. He then sentenced the respondent, as indicated at the outset of this judgment, to five years imprisonment in respect of eight rape offences with the last five years suspended; five years on Count 3 of sexual assault with three years suspended and six months on each of the remaining sexual assault charges. He also ordered that the accused be placed on the sex offenders register. Decision 20. The Court considers it appropriate to recall certain dicta of the courts concerning the nature and gravity of the offence of rape. 21. In DPP v. Tiernan [1988] I.R. 250 Finlay C.J., having referred to the inherent and grave features of the crime of rape observed:
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.”
24 The evidence in mitigation included strong evidence from the respondent’s former employer and two other witnesses concerning his good character both before and since the offences were committed in 1991. The learned trial judge also summed up other aspects of the mitigating factors in the following manner:
25. With regard first of all to the issues raised by the DPP concerning the reliance of the learned trial judge on the report of the Inspector of Prisons, the Court considers that the DPP was entitled to notice of the fact that such a report might be considered material to the sentence to be imposed by the court so that the DPP would have an opportunity to make submissions with regard to it. The prosecution, as much as the defence, is entitled to reasonable notice of important factual matters which may be relied upon in determining what sentence should be imposed on an accused. As was pointed out in submissions by the DPP the report was not relied upon by the defence and not tendered in evidence before the sentencing court (nor in this Court). This Court therefore has not had the occasion or opportunity to consider that report but is aware generally that it discloses serious and often grave deficiencies in the conditions in which prisoners may be detained in some of our prisons. Persons who are detained in prison in conditions which do not accord with the law, or respect for their fundamental rights, have a remedy before the civil courts. That is not to say that a sentencing court could not take into account evidence actually tendered at a sentencing hearing concerning the conditions in which a prisoner would, or was likely, to serve his term of imprisonment. The Court does not consider it necessary or appropriate to develop that point further in this case. For the purposes of this case the Court is of the view that the DPP was also correct in his submission that there was no particular and certainly not sufficient correlation made by the trial judge between any matters referred to in the Inspector’s report and the particular circumstances of the respondent, including the prison where he would or was likely to serve any term of imprisonment. At least in the circumstances of this case, the Court is of the view that the learned trial judge erred in taking into account the report of the Prison Inspector when deciding on the sentence to be served by the respondent following his conviction in this case. 26. The Court agrees that one was entitled to take into account the age of the respondent and the difficulties that serving a prison term would pose for a person of that age. 27. As already mentioned, the trial judge was also entitled to take into account the other mitigating factors, in particular the good character of the respondent not only before the offences were committed but since. Therefore, the question of a sentence fashioned to rehabilitate the respondent is not a material consideration. It could also be said that the imposition of a sentence intended to deter the respondent personally from further offences is not a material consideration given the long passage of time which has elapsed since the commission of the offences and the respondent’s good behaviour as a citizen in the intervening years. Nonetheless, sentences imposed for the serious offence of rape should reflect the gravity of the offence itself and subsequent good behaviour of a person who commits rape cannot obviate that consideration entirely. 28. The aggravating factors for the offences in this case is the fact that the respondent took advantage of the trust placed in him by the complainant herself, her parents and family when he took her into his home to stay during the summer of 1991. He used alcoholic drink to take advantage of this young girl and one of the sexual assault offences was accompanied by violence and force. Reliance on his letter of apology in 1994 as a mitigating factor must be limited by the fact that it was his case at the trial before the jury that this apology related to allowing her to drink alcohol at the time, rather than to the sexual offences. 29. The learned trial judge was correct in stating that the crimes of which the respondent was convicted, “with such resultant suffering caused to [the complainant]” should be marked by lengthy sentences. The effective sentence of 2 years imprisonment could not, however, be considered a lengthy sentence given the gravity of the offences and the traumatic consequences which they had for the complainant and indeed her parents and family. The Court is satisfied that the learned trial judge attached excessive weight to the mitigating factors and a sentence which incurred a 2 year period only of imprisonment was unduly lenient. 30. Prior to the hearing of this application the respondent had been released from prison having already completed the 2 year sentence which had been imposed by the court of trial. This, unfortunately, is not a wholly unusual occurrence because of the volume of appeals pending before this Court in relation to the resources available to it. It probably would have been the case that this application by the DPP would have been heard in a more timely fashion but for the separate appeal brought by the respondent against his conviction. It must be said, however, that the respondent cannot be held responsible for the delay which occurred as he was perfectly within his rights to bring that appeal. That appeal has been dismissed, and in the light of the Court’s decision on the sentence imposed by the trial judge it remains for this Court to decide on the sentence which should now be imposed on the respondent. 31. In other cases which have come before this Court where a respondent is at liberty because he has already served the sentence imposed by the trial court, this Court has acknowledged that it is a further hardship on an accused to be returned to prison in circumstances when the Court feels constrained to impose a further custodial sentence following a successful application by the DPP that the original sentence was unduly lenient. This is something which the Court is bound to take into account when considering what sentence to impose in this case in lieu of that imposed by the trial court. In doing so in this case the Court will also have regard to the fact that the respondent is now two years older than what he was at the time of sentencing. He is now approximately 69 years of age and was 47 years old when the offences were committed. 32. As explained at the outset, when recalling dicta of this Court and of the Supreme Court concerning the gravity of rape cases, the offence of rape in principle must attract a serious custodial sentence. But for the mitigating factors in this case the respondent would undoubtedly have been sentenced by the trial court to a long term of imprisonment. 33. The term of imprisonment imposed by the trial court was 7 years and it is principally the reduction of that sentence, when 5 years of it was suspended, an effective sentence of 2 years, which has led to the application of the DPP. Having regard to the blameless life which the respondent has led in over 20 years since the offences were committed, his age and the other mitigating matters referred to, the Court will substitute for the sentence imposed by the trial court in respect of Counts numbered 1, 4, 5, 6, 7, 8, 9, 10 and 11 a period of 7 years imprisonment with 3 years suspended. This has the effect of doubling the sentence imposed by the trial court as regards the rape offences. As regards the sentences imposed on the other offences the Court does not consider it necessary in the circumstances to interfere with those sentences. 34. In order to permit the respondent to arrange his affairs the Court is prepared to postpone the application of the additional period in custody to 3rd September, 2013.
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