1. This is an application for leave to appeal against sentences imposed upon the applicant by the Recorder of Belfast, His Honour Judge Hart QC, on 27 March 2001 at Belfast Crown Court. The judge sentenced him to a series of terms of imprisonment on the several counts to which he had pleaded guilty, the effective sentence being one of seven years. He also ordered that the applicant be placed on the register of sexual offenders and that he be subject to continued supervision on release on licence in accordance with Article 26 of the Criminal Justice (Northern Ireland) Order 1996 (the 1996 Order). Leave to appeal was refused by the single judge.

2. The charges against the applicant contained in the indictment were as follows:

3. Count 1, making a threat to kill;

4. Count 2, assault occasioning actual bodily harm;

5. Count 3, indecent assault;

6. Count 4, false imprisonment.

7. Having originally pleaded not guilty, he changed his plea on the morning of trial before any evidence was called and on re-arraignment pleaded guilty to all four charges. He was sentenced by the judge to three years on Count 1, two years on Count 2, and seven years on Counts 3 and 4, all concurrent.

8. On 23 July 1995 at about 12.30 am the applicant returned to his house in Monkstown. His wife Jacqueline was watching television in the living room. The applicant grabbed her by the hair, pulled a knife from his pocket and held it against her throat. He told her that he was going to kill her and said “Laugh now”. Holding her by the hair, he beat her on the head, arms and jaw with a wooden cane which he had taken from the hall and slapped her face with his hand, repeating his threats to kill her. He again held the knife to her throat as he threatened her, then ripped his own shirt with it and left the house.

9. The applicant made his way some time before 1.30 am to the nearby house of his mother-in-law Mrs Philomena Mullan, who was then aged 60 years and had been in poor health for some time. The applicant got into bed beside Mrs Mullan, who had been asleep, and told her that he wanted “a little cuddle”. She slipped out of bed and went into the living room. When the applicant followed her there she offered to make a cup of coffee for him, which he accepted. He appeared to be, in her own words, “a bit crazy, out of his mind or drunk, I don’t know which.” When Mrs Mullan went to leave the house to go to see if her daughter was all right, he barred her way and refused to allow her to leave.

10. Mrs Mullan went into her bedroom to fetch a duvet, in order to lie down on the living room settee, whereupon the applicant pushed her down on her back on the bed. He said that he had loved her for eight months and that he wanted to have her. He lay on top of Mrs Mullan, pinning her arms, and pushed his body between her legs. He pulled up her nightshirt and commenced kissing her on the breasts, stomach, neck and lips. He fondled her breasts and all over her body, and kept repeating that he had to have her. Mrs Mullan managed to wriggle free and went into the living room. He followed there and pleaded with her not to tell anyone as everybody was after him. He opened his jacket and showed her the knife which he was carrying. She said that she was absolutely terrified during this episode.

11. Mrs Mullan succeeded in calming him down and he stayed talking until 4 or 5 am, when she asked him to fetch her daughter. He left the house and pulled his wife by the arm round to her mother’s house. They stayed there for another hour, then returned to the applicant’s house. He fell asleep, whereupon Mrs Larmour returned to her mother’s house and sent for the police.

12. On medical examination Mrs Larmour was found to have a tender swelling to the jaw. Mrs Mullan had a recent bruise on her right thigh, was in a very frightened state, shook persistently and cried continuously. A victim impact report on Jacqueline Larmour shows her to have been still significantly affected in July 2000, when she was referred to a counsellor for therapy. The counsellor’s report states that she was traumatised, had very low self-confidence, suffered from frequent panic attacks and nightmares and a very disturbed sleep pattern. Progress in overcoming these symptoms was hindered by her continuous paralysing fear and sense of helplessness. The report stated that she might well need intensive psychotherapy, but there seems to be a prospect of improvement, for she is described as a friendly, caring and appreciative person under the cloak of fear, with good practical skills and a strong desire to work and play a normal role in society. A significant part of the distress and fear felt by Mrs Larmour and Mrs Mullan stems from the fact that the applicant went to Dublin after the incident and stayed there for several years before being apprehended, in the course of which he resisted extradition for a year. The fears of Mrs Larmour in particular seem to have been exacerbated by long drawn-out concern that the applicant might return and take revenge.

13. Mrs Mullan’s description of herself in a report made to the police in January 2001 shows evidence of considerable distress and deterioration in health, but as she has suffered from illnesses which may or may not be causally connected with the incident and had a previous psychiatric history, it is difficult to know how much to attribute to it. It does appear likely, however, that a proportion at least of her nervous and distressed condition has stemmed from the experience.

14. The applicant is now aged 43 years. His record includes assaults in 1979 and malicious wounding in 1987, but no recent conviction. Neither conviction was for an offence of a sexual nature. The pre-sentence report relates a somewhat disturbed history since his youth. In his interview with the probation officer the applicant denied the allegations made by his wife and Mrs Mullan. The report states:

15. The pre-sentence report suggests that the applicant could benefit from post-release probation supervision. It is stated:

16. It is to be noted, however, that the applicant has expressed an intention to live in Dublin after release, and although some supervision could be arranged with the probation authorities there the court would have less immediate control over him.

17. Dr Helen Harbinson examined the applicant in March 2001 and took a detailed history. She concluded that at the time of the incidents he was suffering from a paranoid psychosis, with delusions of persecution and reference. She advised that he should have ongoing psychiatric assessment in prison and after his release. Treatment with neuroleptic medication might be required and he would be well advised to abstain from alcohol.

18. The judge set out the material facts in detail in his carefully thought out sentencing remarks. He considered that the assault and imprisonment of Mrs Mullan, which he regarded as the most serious of the offences charged, were so grave that if the applicant had contested them and been convicted it would have been appropriate to impose the maximum sentence of ten years’ imprisonment. Taking into account the applicant’s mental state and his plea of guilty he made a reduction of three years, fixing the sentence on Counts 3 and 4 at seven years. He decided that it was appropriate to make an order under Article 26 of the 1996 Order rather than a custody probation order under Article 24.

19. The main arguments advanced by Mr Grant QC on behalf of the applicant were –

20. We would regard the indecent assault as the substantial offence against Mrs Mullan, and the judge seems, in our view rightly, to have taken this view, saying at page 7 of his sentencing remarks that it was made worse by the length of time she was kept a prisoner in her home. The false imprisonment in itself, though serious enough, did not constitute the gravamen of the offence against Mrs Mullan, which was what the judge described as “a prolonged and degrading sexual assault”. We entirely agree with his remarks about the attack upon Mrs Mullan, but we have some reservations whether it was justified to regard it as an offence carrying the maximum penalty. That is generally reserved for the worst type of offence in the particular category. Bad as this was, it is regrettably true that others in that category can be even more abominable, especially when they involve a greater degree of violence. We would ourselves think it right to regard this as one which would carry a sentence in the region of eight to nine years on a contest and before taking into account mitigating factors.

21. We do not consider that there is any merit in the suggestion that the judge did not give enough discount in the circumstances of the case. Mr Grant argued, on the authority of the discussion in Allen & McAleenan, Sentencing Law and Practice in Northern Ireland, 3^rd ed, paragraphs 6.196 et seq, that a bad record cannot operate to increase the seriousness of the offence or the length of the sentence. It might appear to be correct logic to say that the offender’s record cannot affect the seriousness of the offence itself. The court is enjoined, however, by Article 37(1) of the 1996 Order:

22. That provision has to be set beside the obligation placed upon the court by Article 33 to take into account certain matters in mitigation on a plea of guilty. The English equivalent of Article 3(1) was passed in order to reverse the effect of section 29(1) of the Criminal Justice Act 1991, which provided that an offence was not to be regarded as more serious “by reason of any convictions of the offender or any failure of his to respond to previous sentences.” The intention of Parliament appears to us to be quite clear, accordingly, that the effect of previous convictions may be to increase the seriousness of the offence and so cause the court to impose a heavier sentence.

23. The dispute is largely academic in the present case, however, for the applicant’s convictions, although involving some offences of violence, dated back some time and seem to have been relatively minor compared with those with which he has now been charged. We take into account in the applicant’s favour his plea of guilty, not overlooking the fact that although late in the day it did relieve the victims of the need to give evidence. This is qualified by the fact that he required them to give oral evidence at a preliminary investigation and did not plead guilty until the morning of trial, which must give rise to the suspicion that he was putting the victims “to the pin of their collar” in the hope that they might not in the end be prepared to give evidence against him. We also take into account the mental condition of the applicant, which was correctly approached by the judge, who applied the principle expressed by Hutton LCJ in R v Doran [1995] NIJB 75 that there are cases in which it is just to make some reduction on this ground. Having taken all these matters into account, we consider that the sentence of seven years was too high and that the appropriate length of sentence in the circumstances would be six years.

24. Before fixing finally the disposition of the case it is necessary for us to consider whether we should make a custody probation order under Article 24 of the 1996 Order, as counsel for the applicant urged we should. The judge accepted that the applicant would benefit from probation supervision after his release, but considered that it would be best achieved by the imposition of such conditions as the Secretary of State may determine under Article 26(3). The material paragraphs of Article 26 read:

25. The judge could have invoked either the custody probation provisions contained in Article 24 or the supervision on licence provisions of Article 26. He chose to put the latter into operation, on the ground that there was a need to protect the public from serious harm and prevent the applicant from committing further offences. As we stated in R v McGowan [2000] NIJB 305 at 310, where a person is convicted of a sexual offence Article 26 should ordinarily be put into operation if the court is satisfied that the conditions in Article 26(1) have been fulfilled.

26. Mr Grant submitted that these conditions were not satisfied in the present case, that the judge should instead have made a custody probation order and that this court should now replace the supervision order with a custody probation order. It is true that the applicant has not attacked any other member of the public in this fashion, but in view of the contents of the pre-sentence report and Dr Harbinson’s opinion, the applicant cannot readily be regarded as a person who is unlikely to present any danger in the future. We therefore should not be prepared to overrule the judge’s conclusion in this respect.

27. We accordingly give leave to appeal, vary the sentence on Counts 3 and 4 to six years, affirm the other sentences and affirm the order made by the judge under Article 26 of the 1996 Order and his placing of the applicant upon the sexual offenders register for an indefinite period.