Irish Court of Criminal Appeal
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Cite as: [2013] IECCA 91
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Judgment Title: Director of Public Prosecutions -v- C Neutral Citation: [2013] IECCA 91 Court of Criminal Appeal Record Number: 223/12 Date of Delivery: 05/11/2013 Court: Court of Criminal Appeal Composition of Court: Fennelly J., de Valera J., McGovern J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss Appeal Against Sentence | ||||||||||||
THE COURT OF CRIMINAL APPEAL Record No. CCA 223/2012 Fennelly, J. deValera, J. McGovern, J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND
APPLICANT Judgment of the Court of Criminal Appeal delivered the 5th day of day of November 2013 by Mr Justice Fennelly 1. The applicant seeks leave to appeal against the severity of sentence. The sentence was one of six years imprisonment with the final 3 years suspended on certain conditions. It was imposed by Carney J, sitting in the Central Criminal Court, on 8th June 2012 on the applicant’s plea of guilty to the offence of sexual assault contrary to s. 2 of The Criminal Law (Rape)(Amendment), 1981, as amended by s. 21 of the Criminal Law (Rape)(Amendment) Act, 1990. The conditions imposed were that the applicant enter a bond in the sum of €1,000 and keep away from the victim in perpetuity save with her consent. The learned judge also directed that the applicant undergo 18 months post-release supervision and abide by conditions which had been specified by the Director of Public Prosecutions, namely that the applicant submit to the supervision of the Probation Service, keep all supervision appointments, reside at an address agreed with the probation officer and advise the probation officer of any change of address. Facts 3. At one point, the applicant was, his sister thought, behaving strangely. He was making smart remarks to her. She told him to “cop himself on.” He kept wanting more drink. 4. The applicant and his sister went back to his flat at about 2:15 am. After they had arrived there, Ms C spent about 15 minutes trying to get a taxi to take her home. The applicant was still making smart remarks. Subsequently she went to the bathroom. While she was dressing herself in the bathroom, the applicant barged in the door, blocking the entrance, so that she could not get out. She said she wanted to go home. He said: “Come on, we'll do it." She said: “no.” He pushed her into the bathroom, locked the door with the latch and pushed her onto the floor. He took off her runners, pulled down her tracksuit bottoms and underwear. He kept saying: "you're my girlfriend, you're my girlfriend." 5. Ms C insisted that she was not his girlfriend but his sister. He then got up to get out of the room and struck her across the face, pushed her to the floor again and tried to put his penis into her vagina. He kept repeating: “you’re my girlfriend." He then got off her, threw her clothes at her and said: "I didn't do nothing to you." She said: “you did.” 6. Ms C tried to call her mother. The applicant threw the mobile phone at her face. 7. Upon leaving the flat, Ms C called her other brother and told him of the incident. At about 4:40 am she reported what had occurred to the gardaí. She was taken to the Sexual Assault Treatment Unit at the South Infirmary Victoria Hospital. She was examined; there was no forensic evidence that penetration had occurred. 8. The applicant, who had previously been under psychiatric treatment, admitted himself to the psychiatric unit of Bantry Hospital. He remained there until January. He was not fit to be questioned during this time. 9. On 13th January 2009, the applicant was arrested and detained. He was interviewed at Bantry Garda Station. He admitted the facts of the assault. He expressed remorse. He said that he had not been able to penetrate his sister, because he could not get an erection. He was charged with rape and sexual assault and sent forward for trial to the Central Criminal Court. He gave notice of his intention of pleading guilty to sexual assault. 10. On 7th February 2012, the applicant was arraigned and pleaded guilty to the charge of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, which was accepted by the Director of Public Prosecutions. 11. The sentence hearing took place before Carney J on 7th June 2012. The victim provided a short victim impact statement in which she said that her brother, the applicant, had sexually assaulted her. She said that this had affected her, that she could not get it out of her head, that she was very upset and that it had affected all of her family. She had even self-harmed since. She had taken three overdoses. She said that she could never trust him again. She also said that she did not want him to go to jail. She wanted him to get help and thought that would be the best thing for him. If he got help, she would be happy with that. It would still take a while to get over what had happened. 12. Evidence was given that the applicant had pleaded guilty on 21st February 2012 to a later offence of robbery and possession of an offensive weapon. On 25th May 2011, when he was on release from the psychiatric hospital, he had robbed a gift shop in Bantry and stolen a sum of money. He left the knife in the shop. He was known in the shop. He returned to the ward on the same day and told the nursing staff what he had done. It was accepted that this was a psychotic episode. He said that he did not know why he had done what he did, but he had been drinking a lot. 13. The Garda evidence was that the applicant had had psychiatric problems since about the age of 14 as well is drinking problems and that he had not had steady employment. He was also a regular cannabis user. The gardaí accepted that the difficulties he had got into were the result of the consumption of alcohol and cannabis. He was also on prescription medication. The evidence was that, when he was compliant with his medication, he functioned well. As part of his bail conditions, he had stayed in a psychiatric hospital. 14. It was established in cross-examination that, in the immediate aftermath of the assault, the applicant had been in contact with his father and that he was suicidal and terribly remorseful. He had been unfit to be interviewed for a number of months following his admission to the hospital. When in fact interviewed, he was entirely cooperative. 15. The applicant had no previous convictions. 16. Counsel for the prosecution submitted that the case fell within the upper range for sexual assault. An aggravating feature was that the victim was the sister of the applicant. It was also noted that the applicant had been warned in relation to the danger of taking alcohol and controlled drugs and yet went out and did so. 17. Three very detailed psychiatric reports were placed before the Court on behalf of the defence. They showed that the applicant had suffered from severe psychiatric illness since the age of 14. He had become hypomanic with grandiose delusions. He suffered from Bipolar Affective Disorder: “lifelong mood disorder with psychotic symptoms.” This could cause him to be extremely disinhibited and elated. On several occasions, he required treatment at secure psychiatric units. One of these was Carrickmore in Cork City. His behaviour was often extremely unmanageable. He required heavy sedation. The antipsychotic drug, Chlorpromazine was an effective treatment. Since August 2011, he had been prescribed Clozapine, which appears to be a different drug. He also received other prescribed medications. He had a history of high consumption of alcohol and had been advised he should control his alcohol in view of the high levels of psychotropic medication he was taking. Nonetheless, he had been drinking very heavily in the weeks preceding the commission of the offence. 18. During the sentence hearing before Carney J, it was established that:
2. he was sincerely remorseful; 3. his sister said in a Victim Impact Statement that she did not want him to go to jail, but that “help for his condition would be the best thing for him;” 4. the applicant had no previous convictions. 20. Dr Lawler would be “deeply concerned about his coping ability in prison.” He had marked “suicidal behaviour in the past.” The sentence 22. He noted the wishes of the victim but said that they were not decisive, as the crime was one against society as well as against the victim. He said that the applicant’s history of taking drink and drugs afforded no mitigation of his responsibility. He then said that “insofar as any question of dysfunctionality is concerned, I have to have regard to the ruling of Geoghegan J, that this affords little, if any, mitigation.” 23. The learned trial judge noted that he was required to identify the range of penalty available, to place the case, having regard to all its circumstances, at the appropriate place on that scale and then to identify such factors as might be found in favour of the accused and to discount from the figure he had identified as being appropriate. 24. He noted that the range of penalty was from a suspended sentence to 10 years’ imprisonment. He then said:
26. The learned judge then continued:
Submissions on behalf of the applicant 28. The Court does not agree. The learned judge expressly mentioned each of these four matters. It is clear from his careful requisition of the transcript of the evidence that he was considering all the evidence that had been placed before him. In particular, the judge carefully and correctly noted that the wishes of the victim were not decisive, because the crime was also a crime against society. In this particular case, the victim mentioned the need for the applicant to have treatment for his condition. It is clear that the judge took this into account, as he said he did. 29. The two more substantial points made by counsel for the applicant were:
Conclusions 30. The first point presents the difficulty that the learned judge made a correct statement of the proper approach to sentencing, as laid down in the judgment of Egan J in The People (DPP) v M [1994] 3 IR 306, at page 315:
32. It is true that the judge did not follow the course he had prescribed for himself. Having identified the aggravating factors, he mistakenly did not apply the mitigating factors before arriving at the figure of six years. However, he clearly identified those factors, leaving aside for the moment the question of the applicant’s psychiatric condition, in arriving at the final form of the sentence. In substance he applied the mitigation to the suspension of the sentence rather than to the full length of the sentence. 33. In the view of the Court, while the learned judge fell into error, this was a formal error and did not result in an error of substance. The seriousness of the offence, even taking the mitigating elements into account well merited a sentence of six years imprisonment. In other words, if the judge had followed the correct course and had applied the mitigating factors before rather than after arriving at the figure of six years, it would not, in the view of this Court have been seriously possible to argue that the resulting sentence was excessive. 34. Finally, it is necessary to consider the way in which the learned judge treated the applicant’s undoubtedly very serious psychiatric illness. Counsel has referred the Court to a statement of Flood J in imposing sentence in the Central Criminal Court in June 1995 in The People (at the suit of the Director of Public Prosecutions) -v- C (M) (Unreported, High Court, June 16, 1995). Flood J said (page 17 of the Judgment):
37. The judge did not identify the authority for that statement. The context of the learned judge’s reference to “dysfunctionality” was the consideration of the psychiatric condition of the applicant. It would appear that the judge believed he was bound by a decision o this Court to treat psychiatric illness which had had a bearing on the commission of the relevant offence as providing little or no mitigation of the guilt of the accused. It appears possible that the learned judge was referring to the judgment delivered on behalf of this Court by Geoghegan J in The People (at the suit of the Director of Public Prosecutions) -v- Stafford (Unreported Court of Criminal Appeal 14th February 2008). The judgment in that case dealt with the “dysfunctional” history of a family in respect of drink and drugs. Geoghegan J thought there were “sound policy reasons why minimal importance can be attached to mitigating arguments based on drink and drugs.” He was not dealing with mental illness. It is not clear whether the learned judge in the present case intended to refer to that case. Whether he did or not, there does not appear to be any decision of this Court saying that psychiatric illness should not, in an appropriate case, give rise to mitigation in sentencing. 38. Counsel for the prosecution does not, in fact, argue that the psychiatric condition of an accused person is incapable of amounting to a mitigating circumstance. Rather, it is submitted that the learned judge did, in fact, take into account the applicant’s psychiatric condition. He had heard extensive oral evidence from Dr. Martin Lawlor and had engaged with it by asking questions during the evidence. He gave specific consideration to the question of rehabilitation of the applicant by suspending the final three years of the sentence on bond. 39. This Court accepts that, if it is shown that the offending behaviour of an accused person has been significantly caused or affected by his psychiatric condition, that is, depending on all the circumstances, capable of amounting to a mitigating circumstance. The culpability of a person for a particular act will always be considered in the light of the presence or absence of deliberation or malice associated with the act. Calculation and deliberation will aggravate, while inadvertence or accident may mitigate. Where the act has been significantly the result of a psychiatric condition, the moral guilt of the accused may be less, depending on the circumstances. That qualification is important. The sentencing court will have to take account of all the circumstances, which will include the extent to which the accused is aware of or responsible for his condition or careless in regard to its treatment. 40. In the present case, the psychiatric evidence showed that the applicant had been under treatment for his condition for more that ten years before the commission of the offence. The applicant had received very extensive and caring treatment from psychiatrists of a high level of expertise. Two key elements were that the applicant was repeatedly made aware of the vital necessity of his respecting his medication programme and, more particularly, that he abstain from taking alcohol. It is clear from the psychiatric reports that the applicant repeatedly failed to respect his psychiatric advice. He failed regularly to take the prescribed medication. More importantly, he continued to take alcohol to an extreme extent. This had led him to being readmitted to hospital on several occasions. 41. It is clear that the offence in question was committed following a period of extremely heavy drinking. 42. The result is that, while it is true that the applicant’s underlying psychiatric condition contributed materially to his commission of the offence, the fact that it was not under control on the relevant date was, to an important degree, the result of his own failure to follow the professional advice available to him. 43. It is also important to note that the sentence ultimately imposed was carefully balanced. In the first place it involved the imposition of a primary sentence of six years’ imprisonment which, in the view of the Court, was appropriate to the seriousness of the offence. This is so even after mitigation for the plea of guilty, remorse and previous good character. In the second place, the learned judge suspended half of that sentence on conditions which were directly relevant to facilitating the applicant’s rehabilitation by treating him for his psychiatric illness. The judge attached importance to the evidence that it was vital that the applicant abstain from alcohol and noted his promise to do so. 44. The essence of the applicant’s appeal is that the sentence imposed by the learned judge failed to take adequate account of the successful treatment regime which the applicant was undergoing. In reality, the judge could have satisfied the requirement suggested only if he had imposed an entirely suspended sentence on condition that the applicant continue to submit himself to that regime. The Court does not consider that an entirely suspended sentence would have been justified by the facts and circumstances of the case. The offence was very serious. The applicant represented a continued risk of offending so long as he failed to adhere to his medical treatment. There was ample evidence before the Central Criminal Court that he was a person who had failed to observe those requirements on a number of occasions. The Court was justified in adopting the sentencing formula which it did, an effective three-year custodial sentence followed by a supervised period subject to the important condition of a total ban on the use of alcohol. 45. For these reasons, the Court will dismiss the application for leave to appeal. | ||||||||||||