7
COURT OF CRIMINAL APPEAL
Record No. 126/03
McCracken J
Lavan J
Murphy J
The People at the Suit of the Director
of Public Prosecutions
-V-
D
Applicant
Judgment of the Court delivered by Mr Justice McCracken on the 21st day of May 2004
___________________________________________________________
The accused pleaded guilty to ten sample charges of rape of three of his daughters and to two sample charges of sexual assault on a fourth daughter. It is accepted that these were sample charges only and that there were in fact one hundred and fifty three counts in the indictment. The offences took place over a period of some twenty years when his daughters were aged between six and twelve years. It is not necessary to set out the details of the offences in this judgment, but it is sufficient to say that they disclose a systematic and brutal pattern of sexual interference with young children by a person who was in a position to have total control over them. This must certainly be one of the worst cases of sexual abuse of young children by their father ever to come before the Courts.
The trial Judge sentenced the accused to life imprisonment in respect of each of the counts of rape and to five years imprisonment in respect of each of the counts of sexual assault. In doing so he said in the course of his decision:-
“Having regard to the breadth of the outrages and horrors in this case the systematic rape and sexual assault of four daughters over a period of twenty years resulting in the victim impact which we know of, it seems to me that any sentence imposed by me less than one of life imprisonment must fall to be described as not proportionate or less than proportionate with what I am dealing with. Accordingly in relation to all the rape counts I impose sentences of life imprisonment. And in respect of any sexual assault counts I impose sentences of five years imprisonment. All sentences to run concurrently.”
In the course of the sentencing the learned trial Judge also referred to an earlier case in which he had imposed sentences of life imprisonment and fifteen years imprisonment to be served consecutively, which form of sentencing had been upheld by the Court of Criminal Appeal. He pointed out the fact that in the present case the sentences were to run concurrently which allowed an advantage from the accused’s point of view, as if he were to impose consecutive sentences, that would deprive the accused of access to the parole board.
One of the accused daughters gave evidence, as was her right, and the Court had before it Victim Impact Reports of all four daughters, and the effect of the abuse on them is quite clearly seriously traumatic and lasting.
It is urged on the Court on behalf of the accused that, not only did he plead guilty, but that he made a comprehensive statement to the gardaí at the earliest opportunity, with the result that from a very early stage his daughters were aware that they would not have to go through the very disturbing experience of having to give evidence.
The Applicant relies in particular on two cases. In The People (DPP) v. Tiernan [1988] IR 250, where an accused was sentenced to twenty-one years imprisonment for rape, the Court reduced the sentence to one of seventeen years imprisonment. Finlay CJ said at page 255:-
“I have no doubt, however, that in the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.”
In DPP v. G [1994] 1 IR 587 the accused was sentenced to twelve concurrent sentences of life imprisonment for rape notwithstanding a plea of guilty. The Supreme Court reduced the sentence to one of fifteen years imprisonment. In the course of his judgment, Finlay CJ said at page 591, having referred to the Tiernan case:-
“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.”
Subsequent to these cases, and possibly in the light of the decisions, the Oireachtas by s.29 of the Criminal Justice Act 1999 provided:-
“(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a Court, if it considers it appropriate to do, shall take into account:-
(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and
(b) the circumstances in which this indication was given.
(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a Court from passing the maximum sentence prescribed by law for an offence if, notwithstanding a plea of guilty, the Court is satisfied that there are exceptional circumstances relating to the offence which warranted the maximum sentence.”
This Court can only interfere with a sentence imposed by a trial Judge if it can be shown that there was an error in principle involved. While the learned trial Judge in the present case did not refer expressly to that section, nevertheless there could be no error in principle if he was satisfied there were exceptional circumstances which would warrant a maximum sentence. In effect, this section outweighs any suggestion in the earlier cases that as a matter of principle a discount must be given for an early plea of guilty.
This Court certainly feels that there were ample facts which the learned trial Judge could consider amounted to exceptional circumstances. He has set them out very succinctly in the passage from his decision which is quoted above. They are a combination of the breadth of the outrages, the fact that the rape and sexual assaults were systematic, the fact that four daughters were involved, the fact that the offences took place over a period of twenty years and the impact on the victims. This is a combination of factors which he was certainly entitled to regard as exceptional by any standards. Accordingly, this Court considers that he was entitled as a matter of principle to impose life sentences.
In any event, as there were four persons involved, the learned trial Judge took the view that it would have been open to him to impose consecutive sentences, and this Court certainly accepts that it would have been open to him to make the life sentences consecutive to the five years sentences for sexual assault. By not doing so, he in fact did not impose the maximum sentence that would have been open to him to impose. As he points out, this has the advantage to the accused that he will be able to make use of the parole procedures at an earlier stage than if the sentences had been consecutive.
It is also argued on behalf of the Applicant that the learned trial Judge failed to have regard to a medical report from Dr Macken, who is a consultant psychiatrist. This Court has also had the benefit of seeing that report and does not feel that it greatly aids the accused. His concluding view is that the prognosis for the accused must be extremely guarded, although it does emphasise that he expressed guilt and remorse regarding his actions and had a very strong desire to gain forgiven from his daughters. It is also urged that the learned trial Judge failed to have regard to the previous good character of the accused, but while the accused had no previous convictions, he has now pleaded guilty to a series of offences going back over twenty years, which is hardly indicative of a good character.
Finally, it is urged that the trial Judge ought to have disqualified himself from passing sentence by reason of certain newspapers articles which were sent to him. These articles commented on the case, and it may well be that they are in contempt of Court, although this is a matter which this Court has been informed is currently being considered by the Director of Public Prosecutions. In the course of the sentencing hearing the trial Judge said:-
“I want to say that I was prejudiced by the material I was exposed to in this case and it would be a matter for the Court of Criminal Appeal to decide whether my professionalism has overcome that prejudice.”
He subsequently said:-
“I indicated that I have been prejudiced by what I have seen and it is up to me to apply my professionalism to overcome that prejudice. I indicated that the Court of Criminal Appeal will make a judgment as to whether I have done that successfully. The judgment which I referred to this morning indicated that Judges have to rely first of all on their training, experience and also on the declaration that they make under the Constitution to overcome these matters ….”
It is not uncommon for Judges to hear prejudicial matters in the course of their duties. It is part of the function of the Judge to realise that these matters are prejudicial and therefore not to be influenced by them. By recognising the prejudicial nature of the articles in this case, the learned trial Judge clearly was aware of the dangers of being influenced by them, and this Court is quite satisfied that, being so aware, the prejudice in these articles did not effect the decision of the learned trial Judge.
The Court has already indicated that it is refusing leave to appeal and this judgment sets out the reasons for such refusal.
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