Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 41
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Judgment Title: Director of Public Prosecutions -v- Piotrowski Neutral Citation: [2014] IECCA 41 Court of Criminal Appeal Record Number: 20/10 Date of Delivery: 27/11/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., Moriarty J., Herbert J. Judgment by: Clarke J. Status of Judgment: Approved
Notes on Memo: Allow appeal re sentence | ||||||||||||
THE COURT OF CRIMINAL APPEAL [Appeal No: CCA 20/10] Clarke J. Moriarty J. Herbert J.
The People (at the suit of the Director of Public Prosecutions) Prosecutor/Respondent and
Edward Piotrowski Defendant/Appellant Judgment of the Court delivered by Mr. Justice Clarke on the 27th November, 2014. 1. Introduction 1.2 Mr. Piotrowski appealed against his conviction in relation to those seven counts in respect of which he had pleaded not guilty. For reasons set out in a judgment of this Court (Director of Public Prosecutions v. Piotrowski [2014] IECCA 17) that appeal was dismissed. As noted in that judgment the question of Mr. Piotrowski's appeal against sentence was left over. Thereafter a further hearing took place in respect of the appeal against sentence. This judgment is directed to the issues which arose. It is appropriate, in that context, to turn first to the sentence itself. 2 The Sentence 2.2 The plea of guilty to which reference has already been made was referable to an assault on Mr. Y (count 2). 2.3 The precise sentence imposed in respect of each offence was as follows:-
• Count 2, Assault on Mr. Y - 5 years imprisonment • Count 3, False Imprisonment of Mr. Y - 10 years imprisonment • Count 4, False Imprisonment of Ms. Z - life imprisonment • Count 5, Aggravated sexual assault of Ms. Z - life imprisonment • Count 6, Rape contrary to section 4(1)(b) of the Criminal Law (Rape) (Amendment) Act, 1990 - life imprisonment • Count 7, Rape contrary to section 4(1)(a) of the Criminal Law (Rape) (Amendment) Act, 1990 - life imprisonment • Count 8, Rape contrary to section 2 of the Criminal Law (Rape) Act, 1981 (as amended) - life imprisonment 3 The Offences 3.2 Mr. Y and Ms. Z, who were sleeping in the master bedroom, were roused from their sleep. Ms. Z recalled being hit upon the head, and Mr. Y described being sprayed with something in his eyes, and then being hit by his assailant. Ms. Z tried to open the door but found it locked. She switched on the light and saw Mr. Y at the end of the bed, being assaulted by a masked assailant with a baton. She recognised the man as Mr. Piotrowski. Throughout the incident, Ms. Z pleaded with him to leave the house. Mr. Piotrowski produced a knife, which he applied to Mr. Y’s throat, and he made threats to kill him. He then tied up Mr. Y’s hands and legs with rope and duct tape, and slashed his body. During this time, Ms. Z attempted to contact a friend on her mobile phone, but did not get through to her. Mr. Piotrowski then took the phone and broke it. 3.3 Having locked the bedroom in which Mr. Y was tied up, Mr. Piotrowski brought Ms. Z to the bathroom. She was bleeding from her head and she asked could she wash in the bath. When she was finished, Mr. Piotrowski told her to clean the bath. He made inquiries as to whether there was a camera or money in the house. He also inquired as to whether a gun was kept in the house. Mr. Piotrowski returned to the master bedroom with Ms. Z and he checked that Mr. Y. was still securely tied up. He touched Ms. Z’s breasts, digitally penetrated her vagina and raped her with a vibrator. Mr. Piotrowski then ordered her to go into another bedroom, where Ms. Z was subjected to oral and vaginal rape. 3.4 Mr. Piotrowski made a series of serious threats to Ms. Z and Mr. Y throughout the incident, including threats to kill them both. He made further threats prior to leaving the house. After he had left, Ms. Z released Mr. Y who then contacted the local Garda Station. 4 Discussion 4.2 At his sentencing hearing, counsel for Mr. Piotrowski emphasised, in mitigation, that the absence of previous convictions at the age of 43 is a factor which distinguishes Mr. Piotrowski from others convicted of such very upper end of range offences. Counsel drew attention to Mr. Piotrowski’s willingness to engage with the psychological services in prison, and the assessment of the Probation Officer that he would continue to cooperate with the Probation Service following release. The Probation Service considered that there was a medium risk that he would re-offend, but a forensic psychiatrist considered that the risk was higher. Counsel further submitted that Mr. Piotrowski had a good work history, had made efforts to engage with education in prison and that he maintains a good relationship with his daughter. Counsel drew the court’s attention to the psychiatric report and the probation report which deal with Mr. Piotrowski’s lack of coping mechanisms in relation to the period following the deterioration of his relationship with Ms. Z which caused him to “slide into a deep depression involving excessive drinking and the infliction of pain on himself”. He urged the court to consider that that relationship between Mr. Piotrowski and Ms. Z had, for the most part, been a good one. 4.3 In relation to premeditation and planning of the offences, counsel stated that it was not clear whether Mr. Piotrowski’s intentions on the night the offences occurred went beyond entering the house to recover property and to ascertain whether Ms. Z and Mr. Y were in a relationship. Counsel asked the sentencing judge to consider that there was no serious physical harm done to either party. Finally, counsel asked the court to take into account of the difficulties Mr. Piotrowski would face as a foreign national serving a sentence outside his own country. 4.4 The Court is, therefore, faced with an offence which is at the very upper end of the range and in respect of which there is only a limited form of mitigation. The main matters on which counsel placed reliance at Mr. Piotrowski's sentencing hearing concerned his general good record prior to these offences (a matter for which he is undoubtedly entitled to credit) and his positive cooperation with the prison and probation services after his conviction and imprisonment. While those latter aspects of his case on mitigation do need to be taken into account, they also need to be seen against Mr. Piotrowski's continued refusal to accept responsibility for his actions. 4.5 In the light of the appalling nature of the crimes which he committed, the overall impact of those mitigating factors must necessarily be considered limited. Counsel for Mr. Piotrowski accepted that, at the level of principle and even taking all mitigating factors into account, there can be exceptional circumstances where it remains open to the court to impose a life sentence. The Court must consider, amongst other things, whether any relevant mitigating factors are sufficiently weighty, when taken in conjunction with the very serious nature of the offence, to warrant treating a life sentence as an error in principle. The Court accepts that their terrible ordeal at the hands of Mr. Piotrowski had a profound psychological impact on Ms. Z and Mr. Y. The degradation of the victims in each others presence and in the home of Mr. Y is an exceptionally serious aspect of the offending in this case. There was also premeditation and careful planning involved in the commission of these crimes. The manner in which Mr. Piotrowski reconnoitred the dwelling house and the way in which he dressed himself on the occasion and provided himself with weapons and means of restraining persons establishes this. 4.6 There is, however, one further point which does, in the Court's view, need to be taken into account in the circumstances of this case. Mr. Piotrowski is a Polish national. One of the entitlements which he may have in that context is the possibility that he may be able to successfully make an application at some stage to serve the remaining balance of his sentence in Poland. The Court would wish to emphasise that it is no part of this Court's function to indicate whether such a course of action would be appropriate and, indeed, the Court is unaware as to whether Mr. Piotrowski would wish to pursue such a course of action under the law. However, the fact remains that it is an option which under the law he is entitled to seek to pursue in the circumstances of his case. 4.7 The Court is mindful of the fact that difficulties have been encountered in relation to the serving of sentences in other jurisdictions under the Council of Europe Convention on the Transfer of Sentenced Persons, not least where there are marked and material differences between the sentencing regimes in the respective jurisdictions in which the sentence was imposed and that in which the balance of the sentence is to be served. Such difficulties came to the fore in this jurisdiction in Sweeney v. Governor of Loughan House Open Centre & ors [2014] IESC 42, involving problems arising out of the differing current law as and between this jurisdiction and the United Kingdom in relation to matters such as remission and release on licence. 4.8 In those circumstances the Court is of the view that it is likely that less difficulty might be encountered in adapting a fixed but lengthy custodial sentence to the appropriate penal regime in another jurisdiction than might apply in the case of a life sentence. This is so, in the Court's view, not least because it is clear from Whelan and Lynch v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2012] 1 IR 1, as recently noted by the European Court of Human Rights in the same case (Application nos. 70495/10 and 74565/10 (Judgment of 8th July, 2014)), that life sentences in this jurisdiction are entirely punitive and involve no element of preventative custody. 4.9 In those circumstances the Court is of the view it was more appropriate to impose a lengthy custodial sentence rather than an indeterminate life sentence on the facts of this case. To do so would decrease the risk that unforeseen difficulties might present themselves should Mr. Piotrowski seek to have the balance of his sentence served in Poland. Appropriate recognition must be given to the entitlement which Mr. Piotrowski has to seek to avail of the relevant treaty arrangements in that regard, and to ensure that no unnecessary or unfair barriers are placed in the way. To this extent the sentence imposed involved an error in principle. 4.10 Moreover, this Court does not feel that it should impose a sentence which is likely, in practise as opposed to in theory, to be significantly less onerous than that imposed by the sentencing judge. The Court is mindful of the fact that, as a matter of practise, it is likely that Mr. Piotrowski might expect to be released at some stage during his life sentence albeit, given the seriousness of the offences for which he has been sentenced, only when he has served a significant period of imprisonment. The Court is also mindful of the fact that, in the event of a fixed term custodial sentence, Mr. Piotrowski would, in the ordinary way, be entitled to expect remission. The Court, in fixing an appropriate custodial sentence, has also had regard to the materials supplied to the Court concerning Mr. Piotrowski's good record in prison. While those factors have been taken into account the Court does not consider that they could have any very significant effect on the overall sentence in the light of the exceptional nature of the offences for which that sentence was imposed. 4.11 Against that background the Court proposes to impose different sentences in lieu of the life sentence imposed in respect of the false imprisonment of Ms. Z (count 4), the aggravated sexual assault of Ms. Z (count 5), the rape contrary to section 4(1)(b) of the Criminal Law (Rape) (Amendment) Act, 1990 (count 6), the rape contrary to section 4(1)(a) of the Criminal Law (Rape) (Amendment) Act, 1990 (count 7) and the rape contrary to section 2 of the Criminal Law (Rape) Act, 1981 (count 8). The Court will impose the following sentences of imprisonment:-
• On Count 5 of 10 years • On Count 6 of 18 years • On Count 7 of 18 years • On Count 8 of 18 years 4.12 The reason why the Court has taken a somewhat different view in respect of counts 4 and 5 to that which it has taken in respect of the other counts is that the Court views the offence of false imprisonment in respect of Ms. Z to be comparable to that in respect of Mr. Y in relation to which a sentence of 10 years has already been imposed. Furthermore, the Court considers that a sentence of 10 years is appropriate, if taking the offence in isolation, in relation to the count of aggravated sexual assault contrary to s.4(1)(b) of the Criminal Law (Rape) (Amendment) Act, 1990. Such a sentence is comparable and proportionate to sentences generally imposed in respect of such offences in other cases when they are at the very serious end of the range. Sentences of that scale have also been approved by this Court. 4.13 The Court is, of course, mindful that, as a matter of practice, it is the longer sentences imposed which will truly determine the period of imprisonment to be served by Mr. Piotrowski. On that basis, understandably, counsel did not significantly address any distinction between the various offences in relation to which a life sentence had been imposed. Nonetheless, and notwithstanding that fact, the Court is of the view that making the distinction just noted is appropriate in all the circumstances of the case. 5. Conclusions 5.2 In lieu of the life sentence imposed by the sentencing judge in respect of each of those sentences the Court will impose concurrent sentences of 10 years imprisonment in respect of counts 4 and 5 (false imprisonment and aggravated sexual assault of Ms. Z) and 18 years in respect of counts 6, 7 and 8 (rape contrary to section 4(1)(b) of the Criminal Law (Rape) (Amendment) Act, 1990, rape contrary to section 4(1)(a) of the Criminal Law (Rape) (Amendment) Act, 1990 and rape contrary to section 2 of the Criminal Law (Rape) Act, 1981 (as amended)). All sentences are to run from 25th November, 2007.
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