High Court of Ireland Decisions

1. The Accused has pleaded guilty to counts of rape, indecent assault and incest perpetrated against his three daughters over a period of years. The counts before the Court are a token sample of outrages so numerous that they cannot be quantified which certainly run into many hundreds.

Many of the crimes had the attendant aggravating features and perversions which are now routine in cases coming before this Court. The unique feature of this case is that the Accused operated a sexual tariff by requiring his daughters to submit to a sexual act with him before being allowed out the front door of their dwelling house. This "customs post" was in operation while the Accused's wife was out of the house acting as the provider by working as a cleaner.

Matters came to light when the youngest girl aged 17 left home early last year. She went to stay with an aunt and in the course of her aunts seeking to persuade her to return home, she disclosed that she had been sexually assaulted by her father. The aunt summoned the mother and the disclosures were discussed. In the course of this, the eldest girl and the middle girl volunteered that they had been sexually assaulted in various ways by their father.

The family members went from the aunts flat to the family home where the Accused was confronted with the allegations. Upon being confronted he admitted to having slept with the youngest daughter and before saying anything further he walked out of the house at 11.30 pm and surrendered to the Guards at Store Street Station at midnight where he confessed in some degree to what had been happening.

The following morning enquiries were made of the mother and the three daughters and it became apparent that matters were much more serious than it had initially appeared. It came to light that there was a history of a seven year period of sexual offences including rape being perpetrated against the three daughters of the Accused. In 1989, the Accused began to take a sexual interest in his eldest daughter who was then 14. He digitally penetrated her and began shortly to have sexual intercourse with her. As soon as the mother left home to go to work, the Accused took advantage of the situation. Initially, these sexual outrages took place two or three times a week. In addition to conventional sex, he required mutual oral sex, would suck her breasts and masturbate himself while placing his penis between her breasts.

In late 1989, the Accused began to take an interest in his second daughter who was aged about 13. He asked her to expose her genital area to him and he exposed his penis to her. He showed her pornographic magazines and rubbed her genital area with his finger progressing to inserting his finger. He required her to perform acts of masturbation while he penetrated her digitally.

There was a progression to mutual oral sex and she was required to perform acts with his scrotum and rectum. He would masturbate himself in front of her and then require her to perform oral sex with him. At age 14 1/2 he had intercourse with her. He would ejaculate on her stomach or breasts. Once matters had progressed to sexual intercourse, it took place once or twice a week. On the occasions when she refused intercourse he would put his penis between her legs and ejaculate into her hands. If she said she was menstruating, he would verify whether this were true before excusing her from intercourse. To encourage intercourse, he would show her pornographic videos.

In relation to the youngest daughter when she was aged 15 he squeezed her breasts, inserted his finger into her vagina and rubbed his penis against her rear through her clothing. In September, 1994 matters progressed to intercourse with ejaculation over the stomach. This continued until July, 1995 when anal sex occurred. The demand for oral sex was refused.

The Accused's wife was totally unaware of what was taking place. She was the bread-winner and was out of the house working while these outrages were taking place. They went on from early 1989 until February 1996.

The statutory maximum penalties for most of the offences to which the Accused has pleaded guilty are life imprisonment. It seems to me that a life sentence would be appropriate for the following reasons:-

1. The gravity and multiplicity of the offences involved.

2. The calculated sexual tariff exacted from the girls over a period of years in the cowardly circumstances that it only operated when the wife was out at work.

3. Most importantly the fact that it would enable release to take place only when those qualified to so decide were satisfied that the Accused would no longer pose a threat.

4. That release from a life sentence is on licence which can be made subject to conditions and is subject to recall.

5. For deterrent effect.

Notwithstanding the penalties determined by Parliament, decisions of Courts binding on me preclude me from imposing the maximum penalty. I have set out my reasons for this conclusion in detail in the following judgments:-

1. DPP v JD. Sentence imposed on the 27 day of April, 1995.

2. DPP v JR. Sentence imposed on the 5 day of December, 1995.

3. DPP v Michael Brambrick. Sentence imposed on the 26 day of July, 1996.

In shortest summary, I would reiterate brief passages from the following authorities which are binding upon me:-

1. The judgment of the Court of Criminal Appeal in DPP v James Jackson (Unreported) -- Judgment delivered the 26 day of April, 1993 where Hederman J said at page 2:-

"It is submitted on behalf of the applicant that what in fact the Central Criminal Court did in this instance was that it imposed a preventative sentence on the accused, a sentence of life in order as the learned trial judge said to protect women from the applicant. The Court is satisfied that preventative detention is not known to our judicial system and that there is no form of imprisonment for preventative detention."

Later at page 9 he said:-

"Mr Feehan has drawn our attention to the judgment of the learned trial judge at p 126 of Book C of the transcript of evidence at which he says at the end 'the sentence which I am imposing is intended to protect women, protect prostitutes but indeed to protect all women against the accused until such time as in the humane judgment of the authorities he is fit to be released'. It is the view of this Court that sentencing and sentencing policy is exclusively a matter for the judiciary and not for the executive and therefore, it is for the courts to impose the appropriate sentence."

2. In DPP v G [1994] 1 IR p 587 where the accused had sexually interfered with three girls aged between 6 and 12, two of them his nieces on more than 400 occasions while he was baby-sitting, Finlay CJ giving the unanimous judgment of a five member Supreme Court said at p 591:-

"The ruling of the learned trial judge in this case is one which displays extreme care and much compassion and it is impossible not to be struck with the concern which he showed in it for the possibility of the commission of further offences by this defendant if and when he should have finished the appropriate sentence of imprisonment which had to be imposed on him. I accept, however, that the fact that the maximum sentence was imposed in a case where the trial judge unequivocally accepted the importance and genuineness of the admissions and plea of guilty (which could not be described as inevitable) does constitute an error in the application of the principles applicable to sentencing, particularly in a case of rape. I, therefore, conclude that this appeal should be allowed and that the sentences imposed of penal servitude for life should be reduced to a determinate sentence so as to mark and give effect to the mitigating factor arising from the admission and plea of guilty made by the defendant at an early stage.

Having regard, however, to the very, very serious nature of the crimes to which the defendant has pleaded guilty, and to all the circumstances which I have very shortly summarised, I am satisfied that a very lengthy determinate sentence must be the only appropriate one. I would, therefore allow this appeal and reduce the period of penal servitude imposed upon each count from life to fifteen years, the period having commenced on the 29 November, 1991, such sentences to run concurrently".

Accordingly, in the circumstances that the Accused surrendered himself to the Police, volunteered a confession, pleaded guilty and made it clear from an early stage that his daughters would not be called to give evidence, I am required to impose a determinate sentence which, as a matter of reality, will have to be less than a life sentence as it is actually served. I reiterate what I said in DPP v Michael Brambrick (shortly to be reported in the Irish Reports):

"To impose a sentence of say 30 years and claim that it was a lesser sentence than life imprisonment would be both judicially dishonest and populist. It is my intention to sentence within known and existing parameters. The sentences being imposed within those parameters are intended to be severe and deterrent."

I take account against the Accused of the following:-

1. The gravity and multiplicity of the crimes.

2. Their aggravating features and the sexual tariff operated by the Accused against his daughters over a period of years.

3. The effect of the crimes on the victims as disclosed by the victim impact reports.

I take account in favour of the Accused:-

1. His surrender to the Police, confession, pleas of guilty and early indication that his daughters would not be called on to give evidence.

2. The request of one of his daughters that his sentence be not too long.

3. His forgiveness by his wife and two of his daughters coupled with his wife's willingness to take him back into the family home.

4. The dicta of Mrs Justice Denham of the Supreme Court that I am concerned with neither retaliation nor revenge.

5. The absence of any previous convictions.

6. The expressions of remorse coupled with willingness to submit to whatever treatment, programmes are considered appropriate.

On all Counts, save Count 15 the Accused is sentenced to 15 years imprisonment. On Count 15, the Accused is sentenced to 4 years imprisonment, all sentences to run concurrently. To take account of time already served on remand, the last year of each sentence is suspended unconditionally.