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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v F.E. [2020] IESC 5 (26 February 2020)
URL: http://www.bailii.org/ie/cases/IESC/2020/2020IESC5_0.html
Cite as: [2020] IESC 5
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Clarke CJ
McKechnie J
Charleton J
Irvine J
AN CHÚIRT UACHTARACH
THE SUPREME COURT
Supreme Court appeal number: S:AP:IE:2018:000067
[2020] IESC 5
Court of Appeal record number 2016/219
Central Criminal Court bill number: CCC 2015 no 0009
BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/APPELLANT
- AND -
FE
(RAPE AND ASSAULT, DUBLIN)
ACCUSED/RESPONDENT
Judgment of Mr Justice Peter Charleton delivered on Wednesday, 26th of February
2020
1. On December 6th 2019, this Court laid down sentencing guidance as to the proper
approach by judges where the accused pleaded guilty to, or was found guilty by a jury of,
rape. This judgment concerns the appropriate sentence for sexual violence relative to the
guidance given by the Court in that judgment; [2019] IESC 85. Additionally, the accused
has also challenged this Court’s jurisdiction to review a sentence reduced, on an incorrect
legal principle, as the Court has found, by the Court of Appeal in February 2018;
[2018] IECA 53. To recap: the accused was the victim’s husband. Apparently, it is contended,
after a marriage lasting some nine years, the accused lost his job and became depressed.
The extent of the contribution of that to his crimes was most properly considered by the
trial judge in the High Court, Kennedy J, who sentenced the accused in June 2016, having
heard the trial, at which the accused pleaded not guilty to the sexual violence count which
is now the task of this Court to assess as to sentence. Hence, a considerable measure of
deference to the trial judge’s views is appropriate since adjudication with the parties
testifying before the court yields a more real view of the situation than that of an
appellate court assessing transcripts and documents in the context of legal submissions.
The crime appealed and its circumstances
2. It is important to briefly describe the facts of the various crimes. On 25 May 2014 a row
occurred in the matrimonial kitchen. The husband produced a knife and threatened his
wife that he would “cut open” her face. He ordered her upstairs and raped her. He had
told her that if she rang the gardaí on her mobile phone that they would not arrive in time
to save her. During the night, she pretended reconciliation. She was anxious to protect
their child from the nasty scene. In the morning she went to the family law courts. He
rang her and threatened to kill her the next day. For the events of the day of 25 May,
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three charges were laid: one count of rape, one count of threat to cause serious harm,
and one count of threat to kill. There were also counts of threats on other occasions. The
accused pleaded not guilty but was convicted at trial of all of these. On 9 June, the
husband accosted the wife at a shopping centre and told her that the next time she saw
him she would not see him coming and that he would be armed with a hammer. This was
subject to a separate charge and conviction. Over that time there was constant checking
by the husband of the wife’s movements through smartphone technology. On 6 August
the husband turned up carrying a bag at the wife’s parents’ home and demanded entry.
Naturally, this was refused. The next day there were two visits to the parents’ home
where he first spoke to the wife’s mother. On the second occasion he came back with the
bag. Claiming this was a present for their child, he gained entry. He produced a hammer
and struck the wife several times on the head and also hit her mother on the head. While
the injuries from an attack of that kind could have resulted in death or serious injury, the
result was multiple injuries to the wife including three deep lacerations and both she and
her mother were brought to hospital. That attack was the subject of two charges to which
the accused pleaded guilty.
What was appealed and by whom
3. What should now be noted is that none of the sentences handed down by Kennedy J in
the High Court were appealed by the Director of Public Prosecutions on the grounds of
undue leniency under s 3 of the Criminal Justice Act 1993. It was the accused who first
appealed the jury convictions, unsuccessfully [2018] IECA 314, and then, secondly,
appealed his sentence for rape claiming it was so disproportionately high as to be an error
in principle. As the prior judgment of this Court disclosed, this resulted in the Court of
Appeal reducing the sentence on an incorrect legal basis. The sentencing judge had
imposed imprisonment on the accused: of 14 years on the rape as a headline sentence,
with 2 years reduction for mitigation and 2 years suspended; in the result 10 years in jail
with post-release supervision for 5 years, included in that the 2 years of suspended
imprisonment. This headline sentence was incorrectly reduced by the Court of Appeal to
12 years, being 12 years with a mitigation of 2 years. In the result the Court of Appeal
imposed 10 years, with 18 months suspended, making 8 years and 6 months for this very
serious rape. The trial judge had imposed a sentence of 5 years for the threat to kill on
the occasion of the rape; of 3 years for the threat to kill, delivered by phone the day
after; of 5 years for the threat to kill at the shopping centre on 9 June; of 7 years and 6
months for the attempt to cause serious harm at the wife’s parents’ home on 7 August;
and of 3 years and 6 months for assault causing harm to the wife’s mother on that same
day. These sentences were all concurrent. Neither the prosecution nor the defence
appealed these sentences. Hence what the Court is dealing with is the appeal by the
accused on the rape sentence which was reduced on an incorrect legal basis by the Court
of Appeal.
4. Since there is no appeal by the Director of Public Prosecutions to argue to increase either
the rape sentence or the other sentences imposed by Kennedy J or to alter the concurrent
sentences to consecutive sentences, the task of the Court is to reassess the sentence for
rape by correcting any error by the Court of Appeal. That is not to rule that in an
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appropriate case of an accused appealing a sentence that there cannot be a reassessment
on the basis of error of principle either way. On this no comment is made.
Constitutional jurisdiction to reconsider sentence
5. This Court has found that the Court of Appeal erred in adjusting the sentence of the
accused in consequence of his appeal. The vehicle whereby there have now been two
appeals in this matter is in consequence of the Director of Public Prosecutions applying to
this Court for leave to appeal the erroneous Court of Appeal decision. This Court granted
leave to the have this further appeal on 15 February 2019 based on the contention by the
Director of Public Prosecutions that a point of law of general public importance arose. This
was reflected in the determination to grant leave on the rape sentence: “the Director’s
preferred proposal is that the sentence for the most serious offence should be set at a
level reflecting the surrounding circumstances. It is said that this would be particularly
appropriate in cases of marital rape, where there may well be a pattern of violence and
abuse.”
6. Prior to the enactment of the 33rd Amendment to the Constitution on 1 November 2013,
all appeals from the High Court were directly to the Supreme Court. Article 34.1 then
provided, and continues to state, that justice should be administered in courts
“established by law by judges appointed” under the Constitution and listed these courts
as courts of first instance and a single court of final appeal. Then, as now, courts could
include, under Article 34.3, those of “local and limited jurisdiction with a right of appeal as
determined by law.” This now refers to the Circuit Court and the District Court which were
subsequently established by legislation. Then, as now, courts of first instance under the
Constitution included “a High Court invested with full original jurisdiction in and power to
determine all matters and questions whether of law or fact, civil or criminal.” The Circuit
Court and the District Court were not mentioned by name and are not now. Instead, the
text prior to the 33rd Amendment stated that there should be a final court of appeal;
which was then the Supreme Court. Hence Article 34.2 stated originally: “The Courts shall
comprise Courts of First Instance and a Court of Final Appeal.” Article 34.4 originally
stated that the “Court of Final Appeal shall be called the Supreme Court.” Article 34.4,
post 33rd Amendment, now provides for a Court of Appeal. This Court of Appeal is now
described as having “appellate jurisdiction from all decisions of the High Court and shall
also have appellate jurisdiction from such decisions of other courts as may be prescribed
by law”. But this is subject to that jurisdiction being “with such exceptions and subject to
such regulations as may be prescribed by law.” This means that there are High Court
decisions that may not be appealed or may only be appealed subject to leave of the High
Court or the Court of Appeal and the timing and manner of appeal is a matter of
regulation. Decisions of the High Court on the constitutional validity of a law cannot be
restricted from appeal to the Court of Appeal under Article 34.4.2°. The Court of Appeal,
by law, may also hear appeals from the Circuit Court, most notably from criminal jury
trials at first instance in that court. This was always the function of the Court of Criminal
Appeal which heard appeals from the Central Criminal Court, the High Court under
another name, and from the Circuit Criminal Court. These functions have now been taken
over by the Court of Appeal.
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7. The post 33rd Amendment now provides for an appeal to the Supreme Court from the
Court of Appeal under Article 34.4.3°; but this is in exceptional circumstances as
decisions of the Court of Appeal are expressed to be “final and conclusive, save as
otherwise provided by this Article.” This “final and conclusive” formula was the wording
formerly, pre the 33rd Amendment, used in relation to the Supreme Court save that this
was not subject to any other appeal. Instead Article 34.4.5° then stated bluntly: “The
decision of the Supreme Court shall in all cases be final and conclusive.” Article 35 now
makes the final court of appeal the Supreme Court and now provides at Article 34.5.6°:
“The decision of the Supreme Court shall in all cases be final and conclusive.” The
decision of the Court of Appeal, under Article 34.4.3° is also expressed to be “final and
conclusive” but this is subject to being “otherwise provided for by this Article.”
8. The Supreme Court’s jurisdiction to hear appeals is twofold. Firstly, under Article 34.5.3°
the Supreme Court has an appellate jurisdiction from decisions of the Court of Appeal,
“subject to such regulations as may be prescribed by law”, “if the Supreme Court is
satisfied that – i) the decision involves a matter of general public importance, or ii) in the
interests of justice it is necessary that there be an appeal to the Supreme Court.”
Secondly, on the same two conditions, of a matter of general public importance or the
interests of justice, the Supreme Court may take an appeal directly from the High Court,
“subject to such regulations as may be prescribed by law” where “the Supreme Court is
satisfied that there are exceptional circumstances warranting a direct appeal”. What is
gone is the prior provision in Article 34.4.3°: “The Supreme Court shall, with such
exceptions and subject to such regulations as may be prescribed by law, have appellate
jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction
from such decisions of other courts as may be prescribed by law.” That jurisdiction in
relation to appellate jurisdiction directly from the High Court unconditionally, only subject
to restriction and regulation, and from decisions of other courts than the High Court is
now given to the Court of Appeal in Article 34.1. That Article provides for exactly that
jurisdiction and also provides for taking it from the Supreme Court in these words: “The
Court of Appeal shall … have appellate jurisdiction from all decisions of the High Court,
and shall also have appellate jurisdiction from such decisions of other courts as may be
prescribed by law.”
9. Thus, on the face of the Constitution, the Supreme Court does not have a jurisdiction to
hear appeals from other courts than from the Court of Appeal and, exceptionally, the High
Court; and only then in accordance with the qualifying tests of general public importance
or interests of justice. The jurisdiction to hear appeals from the High Court, subject to
limitations, and from other courts, such as criminal cases on indictment in the Circuit
Court or Special Criminal Court, is vested now in the Court of Appeal subject only to
appeal to the Supreme Court on the two grounds of general importance and interests of
justice.
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10. As against that apparently clear wording, the accused argues that the basic proposition is
that there should be only one appeal whereby the sentence of the accused may be
changed, to the prejudice of the accused. That appeal is said to be limited to that granted
to the accused to the Court of Appeal and since this inured to his benefit, by a reduction
in his sentence, there should be no other appeal since, it is argued, the Supreme Court is
not entitled to step into the role of another appellate court. What is not argued is the
converse of that case: were the accused to appeal his sentence, as he did here, and for it
to be left in place as what he might argue as a disproportionately excessive sentence that
was wrong in principle, the contention advanced would be for the wrong Court of Appeal
decision to be left in place with no right by him to appeal and seek a just sentence before
the Supreme Court. This one-sided argument by the accused, that he can only have his
sentence reduced or altered at all by one appeal, is strengthened, it is contended, by the
existence of s 29 of the Courts of Justice Act 1924. As analysed in the separate judgment
of O’Malley J, with which the analysis in this judgment agrees, this is a method whereby
the Attorney General or the Court of Criminal Appeal was able to certify a point of law of
“exceptional public importance” which it was desirable in the public interest be taken to a
further appeal from the Court of Criminal Appeal to the Supreme Court. This is claimed by
the accused to be the only route by which any appeal can be taken from the Court of
Criminal Appeal, now the Court of Appeal under the Court of Appeal Act 2014, to the
Supreme Court. That cannot be so.
11. In The State (Browne) v Feran [1967] IR 147, at issue was the former Article 34
providing for an appeal to the Supreme Court, unless excepted, from all decisions of the
High Court. That case involved an order declaring, under Article 40.4, that the applicant
was in lawful custody, commonly called a habeas corpus application. Unlike in other
cases, civil generally since criminal appeals were to the Court of Criminal Appeal, the
Oireachtas had made no provision for the appeal of an order under Article 40.4 to the
Supreme Court. Walsh J commenting on the argument that this restricted the words of
the Constitution giving general appellate jurisdiction to the Supreme Court, declared at p
159-160:
Both the Constitution of Saorstát Éireann and the Constitution represented new
statements of fundamental principles and of fundamental law. Both provided that
the laws in force immediately prior to the date of the coming into operation of the
respective Constitutions should continue to be in force “subject to this Constitution
and to the extent to which they are not inconsistent therewith.” If a “right” may be
taken away by legislation, a fortiori it may be taken away by a constitutional
provision. If the law in force prior to the coming into force of the Constitution
provided that there were some matters in which no appeal lay and the Constitution
states (as it does) that an appeal lies in all matters save where excepted, then
since the establishment of this Court there is, on the face of it, a clear inconsistency
and the constitutional provision must prevail; particularly in the case of appeals
from decisions of the High Court to the Supreme Court when, as has been
acknowledged in the cases already referred to, this right of appeal derives from the
Constitution itself. If it depended on statute only there might be a case for applying
Page 6 ⇓
but that is not the position and one must have regard to the express provision of
the Constitution which provides that laws inconsistent with the Constitution are not
carried over.
12. In that instance, the Supreme Court was concerned with a statute from 1961 dealing with
court procedure and jurisdiction argued to limit the Court’s appellate jurisdiction. That
situation is again argued by the accused to prevail here. Section 29 of the 1924 Act is
therefore asserted by the accused to be the only allowable form of appeal whereby there
could be an appeal which theoretically could have worsened his position; that is increased
his sentence it having incorrectly been reduced by the Court of Criminal Appeal. This
provision, however, does not exclude the jurisdiction of the Supreme Court and nor could
it limit the jurisdiction conferred by the Constitution. In addition, there is s 34(1) of the
Criminal Procedure Act 1967, as substituted (1.08.2006) by s 21 of the Criminal Justice
Act 2006 21, S.I. No. 390 of 2006 and as substituted (28.10.2014) by ss 47 of the Court
of Appeal Act 2014, see SI No 479 of 2014 and inserted (28.10.2014) by s 47 of the
Court of Appeal Act 2014 which provides that “on a question of law” where a verdict at a
trial court, Circuit Criminal Court or Central Criminal Court, is entered “in favour of an
accused person” the Attorney General, now the Director of Public Prosecutions, “may,
without prejudice to the verdict in favour of the accused, refer the question of law to the
Supreme Court for determination.” Here, as there has not been argument on the matter,
no comment is made on the consistency of this scheme with the 33rd Amendment. The
existence of one method of appeal, however, on a point of law of exceptional public
importance, or of another, on a without prejudice appeal against a verdict in favour of an
accused at trial, whereby cases might have reached the Supreme Court prior to the 33rd
Amendment does not mean that any principle limiting appeals has diminished the ample
wording in Article 34 after that 33rd Amendment. Nor did any such argument hold before
the 33rd Amendment.
13. In The People (DPP) v O’Shea [1982] IR 384 a direction was entered by the trial judge
whereby the jury acquitted the accused, who was allegedly seen assisting the loading of
packages into a lorry. The parcels turned out to be controlled drugs. The prosecution
appealed this acquittal by direction in the High Court to the Supreme Court, a step then
taken for the first time under the pre-33rd Amendment jurisdiction. Only ss 12 and 48 of
the Courts (Supplemental Provisions) Act 1961 vested the Court of Criminal Appeal, now
the Court of Appeal, with jurisdiction to determine an appeal from the Circuit Criminal
Court and the Central Criminal Court, a division of the High Court, and there
contemplated were only appeals by a convicted accused: not by the prosecution
protesting an acquittal. By a majority, the Supreme Court held that a direction by the trial
judge to a jury to acquit the accused constituted a decision of the High Court for the
purposes of the then Article 34.4.3° of the Constitution. Any pre-existing rule of common
law preventing an appeal was inconsistent with the jurisdiction that was mandated by the
State’s fundamental law. O’Higgins CJ at page 397-8 approached the text of the
Constitution as being in itself a law, but one requiring literal interpretation within the
context only of the other provisions of the Constitution itself:
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The Constitution, as the fundamental law of the State, must be accepted,
interpreted and construed according to the words which are used; and these words,
where the meaning is plain and unambiguous, must be given their literal meaning.
Of course, the Constitution must be looked at as a whole and not merely in parts
and, where doubt or ambiguity exists, regard may be had to other provisions of the
Constitution and to the situation which obtained and the laws which were in force
when it was enacted. Plain words must, however, be given their plain meaning
unless qualified or restricted by the Constitution itself. The Constitution brought
into existence a new State, subject to its own particular and unique basic law, but
absorbing into its jurisprudence such laws as were then in force to the extent to
which these conformed with that basic law. It follows that existing laws, or formerly
accepted legal principles or practices, cannot be invoked to alter, restrict or qualify
the plain words used in the Constitution unless the authority for so doing derives
from the Constitution itself. Indeed, the very existence of an inconsistency between
what was formerly the law and what the words of the Constitution declare,
according to their literal meaning, repeals and abrogates what had been the law.
14. It thus follows that any pre-33rd Amendment law now inconsistent with the text thereby
introduced has been subject to constitutional repeal, and that in a way superior to that
which the canons of construction for statutes applies. When the law is changed by the
people in a constitutional amendment, the prior statutory or common law survives only to
the extent that it is consistent with the people’s will. The post-33rd Amendment text is
not capable of being read as applicable to the Supreme Court as if it changed nothing.
Nor can the law be construed as of when the Supreme Court was the only court from
which appeals from the High Court could be taken. While much has been made by the
accused of the maxim expressio unius est exclusio alterius, that the specific mention of
one principle or matter is the exclusion of another, this is a canon in statutory
construction that when one or more things of a class are expressly mentioned others of
the same class are excluded. The ambit of that maxim, however, even if applicable to the
Constitution, is itself dependent on textual analysis. What is forgotten in this argument by
the accused is that the Constitution is not a statute.
15. Furthermore, the passage of legislation by the Oireachtas before the 33rd Amendment
cannot affect the text of any new wording agreed by referendum by the people. After all,
the point of a plebiscite under Article 46 may be, and frequently is, to do away with an
existing legal order or to introduce a differing approach to legal or social issues. Even
were it to be that statutory construction tenets apply to the Constitution, and it is not, the
hierarchy of legal order is central. Legislation can be swept away by legislation and
legislation may also sweep away secondary legislation, such as statutory instruments or
by-laws, as can secondary legislation be repealed on the same level, but the Constitution
is the grounding text expressing the will of the Irish people. The Constitution both
demands legislative conformity and erases legislative inconsistency. Certainly, at a
particular point in time, the Oireachtas provided for appeals to the Court of Criminal
Appeal and for a very limited appeal to the Supreme Court on a certification of an
important issue, and further provided for a without prejudice appeal to this Court from
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acquittals by a trial judge of the accused but did so within a context that is entirely
legislative and which operated in accordance with the state of the fundamental law as of
that time.
16. That consideration is not changed by the series of decisions arising out of the murder and
attack on the two elderly Willis brothers in their isolated rural farmstead in County Cork in
November 1984; a crime that led to Muintir na Tuithe founding Neighbourhood Watch. In
that case, the High Court directed an acquittal on the murder charge against two accused
men on the basis that the arrest powers under s 30 of the Offences Against the State Act
1939 could only operate against suspected terrorists, and not against other suspected
criminals. Hence, under the then interpretation of the law as to the admissibility of
evidence, the very detailed confession statements made by the accused men, which were
taken while they were in unlawful custody, were hence automatically excluded. The
prosecution appealed this acquittal by direction, using the authority of the O’Shea case,
and succeeded in reversing the murder acquittal by direction of the trial judge; [1986] IR
495.
17. At issue in The People (DPP) v Quilligan (No 2) [1989] IR 46 was whether a retrial should
be ordered. The murder acquittal had been demonstrated to have been on a basis
unknown to law and the prosecution asked the Supreme Court to order a retrial on the
only charge then before the jury, that of murder. On this application, Hederman J stated
“I still reserve my position on these important matters of substance and procedure” but
said “I am of the view that such an order should not be made.” Henchy and Griffin JJ
were also of that view but, in contrast, expressed reasons. Essentially, Henchy J
considered that it was not automatic that the reversal of an acquittal by direction, as
happened in O’Shea, on appeal carried with it an automatic entitlement by the Supreme
Court to order a retrial. The other judges, Walsh and McCarthy JJ, were of the view that
inherent in an appeal was the entitlement of an appellate court to order a reconsideration
of the evidence or of legal principles leading to what had been declared to be an
erroneous ruling. This, according to McCarthy J, was “an essential part of the jurisdiction
of this Court to hear and determine an appeal from a verdict of acquittal obtained by
direction of the trial judge”, where it was “proper to do so”; at page 60. Walsh J was of
the view that there was a valid return for trial and the ruling on that had been set aside.
Hence, the men could be tried and an error by the High Court could not stand in the way.
In addition, he reasoned that a statutory provision, namely s 34 of the 1967 Act, enabled
a without prejudice appeal but as an exception while the nature of the appeal enabled by
the Constitution could only have force were the Supreme Court enabled to exercise its
ordinary jurisdiction to then make consequential orders. The fact that there were two
avenues of appeal, one under the Constitution and one by statute, did not result in
inequality but pre-determined any potential result by legislation while not trammelling the
clear words of the constitutional jurisdiction and what it implied. In a case where a trial
was not “in accordance with law”, there had been no validly recorded acquittal or
conviction and the system of appeals was designed to heal legal infirmity. Reference to
the 1967 Act was not limiting but conferred “an extra jurisdiction”. In any event, as he
said at p 51, any “any statutory provision which purports to limit or to abolish the right of
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appeal to this Court must be clear and unambiguous.” Henchy J considered that since s 5
of the Courts of Justice Act 1928 restricted the entitlement of the Court of Criminal Appeal
to order retrial of faulty trials and which “but for such fault, might have led to a
supportable conviction.” Hence, he reasoned that retrial powers required specific and
definite legislative intervention. These, as is apparent, now exist in s 23 of the 2010 Act
as amended by the Court of Appeal Act 2014. According to Henchy J it was for the
Oireachtas to choose the powers and by including without prejudice appeals, appeals
carrying a retrial would be constitutionally at variance with equality; see pages 55-6.
18. As a legislative response to the 33rd Amendment of the Constitution, the Oireachtas
enacted the 2014 Act. This provides essentially for the analysing and application of law to
decisions of the High Court or the Central Criminal Court from which criminal appeals are
taken. Section 8 provides for the amendment of the Courts (Supplemental Provisions) Act
1961 s 7 with the addition of s 7A which is itself expressly “subject to the provisions of
Article 34 of the Constitution” and which vests in the Court of Appeal “all appellate
jurisdiction which was … vested or capable of being exercised by the Supreme Court” and
further all jurisdiction of the Court of Criminal Appeal and of the Courts-Martial Appeal
Court. Section 7A(8) provides in the clearest possible terms: “The jurisdiction vested in
the Court of Appeal shall include all powers, duties and authorities incidental to the
jurisdiction so vested.” As the statutory analysis above indicates, and as the Director of
Public Prosecutions argues in her submissions, that included the jurisdiction to quash a
sentence and “in place of it impose such sentence or make such order as it considers
appropriate, being a sentence which could have been imposed on the convicted person for
the offence at the court of trial”; see s 3(2) of the Criminal Procedure Act 1993. The full
text is also on www.revisedacts.lawreform.ie but the relevant piece is referred to here.
19. The jurisdiction of the Supreme Court on appeal extends not only to the questions
certified by a panel of the Court whereby leave is given under Article 34.5 but also any
necessary issue central to resolution of the appeal, provided this is within the grounds of
20. Since the 33rd Amendment of the Constitution provided for appeals to be heard both on
the interests of justice ground and where a matter of general public importance is
involved, it defies sense that any consideration of a just result should involve the
Supreme Court in merely declaring a ruling of the High Court or Central Criminal Court,
exceptionally where a direct appeal is involved, or the Court of Appeal incorrect in law
while being confined into pronouncing a legal ruling in a detached, academic way with no
result on the decision and order of the court appealed from. Justice as administered in the
courts involves the best attempt to find fact correctly and to apply law in pursuit of a
result of litigation that is directed by law in the aim of giving to parties before the courts
what is due to them. Central to that principle, of “seeking to promote the common good
with due observance of Prudence, Justice and Charity”, as the Preamble to the
Constitution sets as the means to assuring the “dignity and freedom of the individual” and
attaining “true social order”, must be the substitution of what is correct in law for the
error made and which is successfully appealed. This is done by an order of a trial or
Page 10 ⇓
appellate court being substituted by the order of the court of final appeal, which is the
Supreme Court. Exceptional to that is any jurisdiction, supposing it to be consistent with
the constitutional architecture, which provides for an appeal not affecting a particular
accused, through being without prejudice under legislation, but which requires a decision
for reasons of precedent or of correcting publicly what may have gone wrong in terms of
the application of law. While that may be what s 34 of the Criminal Procedure Act 1967
expressed, it is not what the Constitution provides. Similarly, that ample constitutional
jurisdiction decided by the people in the 33rd Amendment cannot be confined by s 29 of
the Courts of Justice Act 1924.
21. Hence, on this appeal, and on any appeal from the Court of Appeal or, exceptionally the
High Court sitting as the Central Criminal Court, the Supreme Court is exercising the
same powers of appeal and correction as would the Court of Appeal in a criminal case.
Specifically, this Court is correcting the error of the Court of Appeal on the rape sentence
and is substituting the correct sentence. In so far as the accused also advances an
argument that Order 58 rule 29 of the Rules of the Superior Courts is ultra vires the Rules
Committee, that too is wrong. In making that rule “subject to the provisions of the
Constitution and of statute”, the Rule rightly gives to the Supreme Court “all the powers
and duties of the court below” and enables the Supreme Court to “give any judgment and
make any order which ought to have been made” and to “make any further or other order
as the case requires.”
Principles of sentencing and existing sentencing guidance
22. In now approaching the sentence on the very serious rape offence committed by the
accused, it is unnecessary to do more than generally state in concise form the principles
upon which the courts approach any sentence. These were helpfully collected in The
People (DPP) v M [1994] 3 IR 306 by Denham J. What is before a sentencing court is the
“nature of the crime, and the personal circumstances of the appellant” since these “are
the kernel issues to be considered and applied in accordance with the principles of
sentencing”. While sentencing is often described as discretionary, the analysis of a
sentencing judge is squarely based on these principle as “the essence of the discretionary
nature of sentencing”. At pages 316-318, Denham J set out the principles to be taken into
account:
Sentences should be proportionate. Firstly, they should be proportionate to the
crime. Thus, a grave offence is reflected by a severe sentence. … However,
sentences must also be proportionate to the personal circumstances of the
appellant. … the general impact on victims is a factor to be considered by the court
in sentencing. … Sentencing is a complex matter in which principles, sometimes
being in conflict, must be considered as part of the total situation. Thus, while on
the one hand a grave crime should be reflected by a long sentence, attention must
also be paid to individual factors, which include remorse and rehabilitation, often
expressed inter alia in a plea of guilty, which in principle reduce the sentence… In
contemplating the sentences it is appropriate to consider the offences and their
nature and their circumstances, but this is not done for the purpose of determining
Page 11 ⇓
whether the appellant should be incarcerated for the future so as to prevent him
committing further offences: he is sentenced solely for the offences before the
court.
23. These principles have been reiterated by this Court on several occasions as a sound basis
at [2019] IESC 85. The sentencing court starts with the headline sentence which the
gravity of the offence, judged in the proper context of the relevant facts and the
culpability of the offender, has been determined before considering any mitigating factors.
It may be mentioned that in passing reference has been made of a novel principle of
disappointment whereby on appeal a sentence may be increased, it seems through an
appeal by the Director of Public Prosecutions, whereby what the accused expected to be
his or her sentence was increased. Since there has been no proper argument on this
issue, there is no basis for commenting on such decisions as The People (DPP) v Shaun
Kelly (unreported, Court of Appeal, 16 November 2015) or The People (DPP) v Desmond
Ryan and Edward Rooney [2015] IECA 2 whereby a very small discount was applied on a
sentence being so increased. It seems that this practice may have grown up when there
was a very long delay in a sentence which was increased on appeal by the prosecution, or
where an accused had been released, and hence returned to custody, when a sentence
was found to be unduly lenient under s 2 of the Criminal Justice Act 1993. What should be
born in mind is that the aims of rehabilitation and appropriate punishment do not change.
Those sentenced are now aware through proper legal advice on legal aid over nearly three
decades that a lenient sentence may be increased by the Court of Appeal if it is found on
appeal to be unduly lenient. Thus, sentences are subject to appeal. Further, such an
appeal has a strict time limit. Perhaps there are circumstances where punishment impacts
unexpectedly severely due to a long delay or to a person being recalled from liberty to
custody. The matter awaits decision in an appropriate case but there is no basis for any
such principle here, as O’Malley J comments in her supporting judgment.
24. Reference has already briefly been made to the central role of the trial judge in
sentencing. He or she will have either heard, as opposed to an appellate court reading,
the testimony of the prosecution and the defence and the trial judge also will have
perhaps seen the victim giving evidence or will have observed the court during the entire
process. If there had been a trial, then the sentencing judge will have a full appreciation
of the impact of the crime and perhaps some especial insight into the attitude of the
accused and the validity of any plea of remorse or extenuating circumstances. This is to
be contrasted to the necessarily limited exercise on appeal, as an analysis of paper and
legal argument. Hence, while not excusing legal error, undue leniency or a lack of balance
in sentencing so severe as to amount to an error of principle, it is appropriate for an
appellate court to approach every sentence at trial level with awareness of the front-line
nature of the exercise and to analyse sentencing remarks on the basis of affording a
measure of appreciation and respect to a judicial exercise that is both primary and is
based on live testimony.
Page 12 ⇓
25. While sentencing is often misunderstood outside the legal sphere, it is an exercise in the
application of appropriate principle and the fitting of offenders into the scheme of what
has emerged through precedent, analysis and research as being a just exercise of
Ryan [2014] IECCA 11, the Court of Criminal Appeal set out indicative bands in respect of
assault causing serious harm and firearms offences respectively. In The People (DPP) v Z
[2014] 1 IR 613, the focus was on the role of counsel for the prosecution in sentencing
since the passing of section 2 of the Criminal Justice Act 1993, enabling a prosecution
appeal of a lenient sentence. In The People (DPP) v Fitzgibbon (No 2) [2014] 1 IR 627,
the Court of Criminal Appeal emphasised the role of the prosecution in offering assistance
as to an appropriate sentence, as opposed to demanding a particular sentence. In this
regard, precedent sentences are key, as are analyses of relevant bands within which it
may be suggested a case might appropriately be placed. This has been reemphasised in
the earlier judgment in this case. In addition, as that judgment has shown, the earlier
analysis based on the WD case has now been revised and indications given of sentencing
bands which will guide sentences in this difficult and traumatic area of sexual violence. In
[2019] IESC 85, detailed guidance has been given by this Court as to manslaughter sentencing
and rape sentencing. Thus, as murder carries life imprisonment, and manslaughter and
rape are the next most serious crimes, these are now analysed at appellate level so as to
guide judges. In addition, the detailed and exacting work of the Judicial Researchers
Office has yielded a series of analyses of depth and real use for sentencing and appellate
judges on child defilement, on drug supply, on aggravated burglary, on child
pornography, on dangerous and careless driving, on robbery and on the use of suspended
sentences and community service orders. All of these handbooks, based on the most
painstaking research by devoted law graduates employed by the Courts Service through
listening to digital audio recordings of hundreds of sentences at first instances and of the
judgments of appellate courts, have been available to the judiciary and are widely used
by judges and practitioners. This cannot be ignored. Real progress has been made in the
field of sentencing with genuine results over the most serious cases in terms of
predictability and of consistency.
26. Hence, it is a matter of analysis into which sentencing band culpability for a particular
crime properly fits. With the measure of appreciation due to sentencing judges, it is less
easy to find an error of principle once that band has been correctly identified. Clearly,
since taking manslaughter or rape or other serious sexual violence as an example, there
can be quite wide variations even within a sentencing band that has been correctly
identified by the sentencing judge. Thus, it is also important for a trial judge to correctly
analyse where within a band a crime fits. A sentencing band could stretch over a span of
perhaps four or five years of imprisonment, as it does in rape and manslaughter and in
other serious offences where appropriate analysis has been done, from the lower to the
typical to the upper end. With that correct identification, the sentence becomes more
apparent at first instance and more readily demonstrated to be correct in principle on
appeal.
Page 13 ⇓
This case
27. Again, it is important to repeat that none of the sentences were appealed by the Director
of Public Prosecutions. The appellate approach is to the correctness of the sentences
actually imposed by Kennedy J in the context of the contentions of the accused that she
erred in her sentencing approach. Such an exercise on appeal is not the imposition of a
new sentence, as it might be where a sentence was appealed by the prosecution and
found to be unduly lenient. Rather the consideration is based on where an argument is
demonstrated to be correct that a sentencing error has occurred. Stepping into that role,
which involves the appropriate measure of appreciation for the views of the trial judge,
there is no basis for the argument advanced before the Court of Appeal that the Central
Criminal Court had erred in approaching the sentencing of the accused.
28. To reiterate, sentences were imposed: of 14 years on the rape, a headline sentence
reduced to 10 years through 2 years reduction in respect of mitigation and 2 years being
suspended upon release; of 5 years for the threat to kill on the occasion of the rape; of 3
years for the threat to kill, delivered by phone the day after; of 5 years for the threat to
kill at the shopping centre on 9 June; of 7 years and 6 months for the attempt to cause
serious harm at the wife’s parents’ home on 7 August; and of 3 years and 6 months for
assault causing harm to the wife’s mother on that same day. These sentences were all
concurrent but that approach was not appealed by the prosecution. Kennedy J, in her
sentencing remarks, considered the aggravating factors for the offences of 25 May.
These, she said, were to include “the threat of violence with a weapon, the breach of
trust, the violation of the injured party in her own home while her son was asleep, the
fear that he instilled in her and the severe effect on his victim.” She correctly approached
the sentence by arriving at a headline, that is by, firstly, identifying the severity without
taking mitigation into account and then, secondly, by factoring in mitigation she found to
be there in terms of reduction of time served and suspension. That approach cannot be
faulted.
29. In the analysis of the circumstances of this trial, where the rape and threats to kill in the
context of domestic domination were contested but where the accused was found guilty
by a jury, and where the other very serious offences had been pleaded guilty to by the
accused, finding the appropriate sentencing band was the first task of the Central
Criminal Court. Kennedy J was clearly correct in not placing this offence in either the
category of what might be regarded as a less grave form, the lowest band, or a very
serious offence, the highest band, or regarding the circumstances as being of gravity that
any court regrets calling typical or ordinary because rape is such a violation. Instead, on
the analysis current, there is, to quote the prior judgment in this case: “a category of
rape cases which merit a headline sentence of 10 to 15 years imprisonment. What
characterises these cases is a more than usual level of degradation of the victim or the
use of violence or intimidation beyond that associated with the offence, or the abuse of
trust.” That is the correct band of more serious than the ordinary.
30. By reason of the circumstances of the rape, the only sentence under appeal by the
accused here, of the domination of the woman who was entitled instead to repose trust in
Page 14 ⇓
her husband, the chilling threat of violence, the betrayal of the sanctity of the home and
the incipient menace that kept the victim effectively captive overnight and worried about
her responsibilities as a mother, this was a case correctly characterised by Kennedy J as
being in the upper bracket of the more serious category of rape cases. On appeal, no
error by the Central Criminal Court in sentencing has been identified and hence the
appeal by the accused should be dismissed.
31. It follows that the original sentence should be restored. There is no basis for affording any
reduction by reason of the appeal even though time has passed. In the Central Criminal
Court, the sentencing judge entertained an expectation that the accused would usefully
use his time in prison in the improvement of his attitude by using the educational and
other rehabilitative chances on offer. It is usual, thus, on affirming a sentence to have
regard to the up-to-date position. With the reception of reports and certificates, what the
trial judge expected in terms of engagement has been born out on the face of the
documents produced. There is therefore no basis for any reduction of the sentence. It
remains correct in principle.
Result
32. Hence, in the result, the accused has not demonstrated any error in the approach to
sentencing on the crime of rape by the Central Criminal Court. The alteration of that
sentence by the Court of Appeal did not accord with law. The order of the Court of Appeal
will be quashed and replaced with the sentence originally imposed by Kennedy J.
Result: quash Court of Appeal order and restore decision of the Central Criminal Court re imposed sentence.