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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D. P. P. -v- McC & D [2007] IESC 47 (25 October 2007) URL: http://www.bailii.org/ie/cases/IESC/2007/S47.html Cite as: [2008] 1 ILRM 321, [2008] 2 IR 92, [2007] IESC 47 |
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Judgment Title: D. P. P. -v- McC & D Composition of Court: Murray C.J., Denham J., Geoghegan J., Kearns J., Finnegan J. Judgment by: Kearns J. Status of Judgment: Approved
Notes on Memo: Appeals dismissed | ||||||||||||||
THE SUPREME COURT Murray C.J. Denham J. Geoghegan J. Kearns J. Finnegan J [365/2005] BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND R. McC (1st APPELLANT) AND C. D (2ndAPPELLANT) JUDGMENT of Mr. Justice Kearns delivered the 25th day of October, 2007 The First Appellant By certificate dated 4th October, 2005, granted pursuant to s. 29 of The Courts of Justice Act, 1924, the Court of Criminal Appeal, in dismissing the appeal against the concurrent life sentences imposed upon the first appellant on 24th day of May, 2004, in respect of his conviction in the Central Criminal Court on 15th March, 2004 on charges of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981 and s. 48 of the Offences Against the Person Act, 1861, certified that its decision involved a point of law of exceptional public importance which it framed in the following terms:-
(b) the circumstances in which this indication was given. This appellant, a former soldier, was born on 14th December, 1954. He was married in 1977 and is the father of seven children. On 15th March, 2004, the appellant pleaded guilty in the Central Criminal Court to 20 counts involving sexual offences against two of his daughters and four of his nieces. There were eight counts of rape, one count of attempted rape, four counts of sexual assault and seven counts of indecent assault. The offences commenced in 1986 and involved his two eldest daughters, who at the time were young girls under ten years of age. The pattern of offences, which extended to his nieces, equally of extremely tender years, continued until 1997. His two daughters eventually made a complaint to the gardaí in November, 1999. He was discharged from the army following his arrest on 6th September, 2000, and lived alone in a flat for four years until his case came before the Central Criminal Court. One of many tragic aspects of this case is that the appellant’s sexual offending had come to light in 1987 at which point in time he made admissions to the Gardai and sought counselling to help him cope with his sexual disinhibitions. A file was sent to the Director of Public Prosecutions at that time, but a decision not to prosecute was made. The offences involving his nieces occurred in the years that followed. It is clear from the victim impact evidence in this case that all six girls were severely traumatised. The appellant has no previous convictions. He provided statements to the Gardai following his arrest and indicated his willingness to plead guilty and to co-operate with the Gardai at an early stage. He also participated in a COSC Sex Abuse Treatment and Prevention programme in his local Health Board area and underwent individual psychotherapy. In imposing sentence in the Central Criminal Court, Carney J. took the view that if he were to impose consecutive sentences of a determinate nature, the minimum sentence which he could impose, having regard to the multiplicity and gravity of the offences, would be of the order of 30 years. He decided against that course because it would remove any role for the Parole Board which, because of the nature of its role as later described herein, might have provided some opportunity for early release for the appellant. In considering the imposition of a life sentence, the learned trial judge noted that when a person is released pursuant to a recommendation of the Parole Board after serving a number of years of a life sentence, it is on license and the person is subject to recall. He stated that any such person could be made the subject of an exclusion order which would preclude him from going to certain places, and in particular to places where his victims might reside. He further noted that the Parole Board could open a file in respect of any sentenced person after a period of four years and make recommendations after eight years. In that context, the Parole Board was empowered to review the circumstances both of the accused and his victims. He certified the appellant as a sex offender and imposed concurrent life sentences in respect of the rape offences and sentences of four years in respect of the indecent and sexual assault offences, the same to be served consecutively in respect of each victim though concurrently with each other. The trial judge granted a certificate for the purpose of an appeal to the Court of Criminal Appeal. The Court of Criminal Appeal delivered judgment on 12th May, 2005. In the course of delivering the judgment of that court, Fennelly J. noted that the trial judge had largely relied upon the judgment delivered by the Court of Criminal Appeal in the second of these appeals, namely, The People at the suit of the Director of Public Prosecutions v. D [2004] IECCA 8, a case in which it had been urged upon the court that the accused had pleaded guilty and made a comprehensive statement to the gardaí at the earliest opportunity, a fact notwithstanding which the court in that case had upheld life sentences for a number of rape offences. The Court of Criminal Appeal had held it could interfere with sentences only if it could be shown that there was an error of principle involved. While no reference had been made by the sentencing judge to s. 29 of the Criminal Justice Act, 1999, McCracken J. in delivering the judgment of the court had held there could be no error of principle if the learned trial judge was satisfied there were exceptional circumstances such as would warrant a maximum sentence. McCracken J. had continued:-
In the concluding part of his judgment, Fennelly J. stated at p. 6:-
The court will, accordingly dismiss the appeal and affirm the sentences imposed in the Central Criminal Court. However, the court considers that the question of whether section 29 of the 1999 Act should be interpreted so as to overrule the prior case law to the intent that it is no longer an error of principle to fail to make allowance for an early plea of guilty is an important and difficult one, which would merit the grant of a certificate pursuant to section 29 of the Courts of Justice Act, 1924, if one were applied for.” The Appeal of the first Appellant Having been granted a certificate under s. 29, this appellant has lodged the following grounds of appeal for consideration by this Court:-
(b) The decision of the Director of Public Prosecutions not to prosecute in 1988 despite the accused’s signed confession dated 14th November, 1987, wherein he admitted serious offences (c) The accused’s full cooperation with the Garda investigation in 2000 and 2001, including his signed confessions to having committed sexual abuse, which confession was made while being interviewed as a patient in St. Bricin’s Hospital on 9th February, 2000, his signed statement and memos of interview after his arrest on 6th September, 2000, and his subsequent volunteered statement to the Gardaí on 5th July, 2001 (d) The conduct and remorse of the accused after these matters came to light again in 1999, his referral to the COSC Sex Offender Treatment Programme run by the North Western Health Board, and his act of participation in that programme from the time of his referral on 18th October, 1999, until he was remanded in custody on 15th March, 2004. (e) The accused’s pleas of guilty to the offences before the trial court which were communicated in advance of his trial day to the court and to the prosecution (f) The failure of the trial judge to give any discount in respect of the aforementioned matters despite the established practice of the Criminal Courts to take these matters into account in the determination of sentence, and the creation thereby of a legitimate expectation of the mind of the accused and his legal advisors that credit would be given for the matters in question (3) The learned trial judge erred in law by failing to consider the grounds of mitigation, including reports, put forward on behalf of the accused. For this reason also, the sentences imposed were excessive and disproportionate. The Second Appellant On 28th April, 2003, CD (hereinafter referred to as “D” as per the judgment of the Court of Criminal Appeal) pleaded guilty to ten sample charges of rape and to two sample charges of sexual assault, all offences which were committed against four of his daughters over a period of 20 years. The appellant is the father of six girls and the family lived in the West of Ireland. The offences occurred between 1976 and 1996, but were only reported in 2001. The appellant had married in 1970, but his wife died in 1986. The offences were committed against all four girls before they reached the age of puberty. The appellant was born on 15th June, 1954, and is a farmer. He has no previous convictions. When questioned by the Gardaí in September, 2001 he initially denied everything, but on 15th November, 2001, he came voluntarily to the local Garda Station and made a full statement. At the sentencing hearing in the Central Criminal Court, evidence of a psychiatric examination of the appellant was furnished. In that report, the psychiatrist had noted the appellant’s contention that he had himself been abused when a child. He also expressed remorse and apologised to his victims. He indicated a willingness to cooperate in any programme of psychosexual counselling which might be offered to him whilst in custody. Counsel on his behalf informed the court that D had been completely ostracised by his community once the offending came to light. The appellant, in addition to receiving psychiatric treatment, had significant health problems, including prostate gland problems and arthritis. A number of testimonials in favour of the appellant were handed in to court prior to sentencing. In passing sentence, Carney J. noted there were 153 counts in the indictment and that pleas had been accepted in respect of twelve sample counts “on the basis that they were sample counts”. He described the 20 year period of offending as a systematic process of sexual assault and rape which had profoundly affected the victims. The learned trial judge then proceeded to impose sentences of life imprisonment on all of the rape counts, together with sentences of five years imprisonment in respect of any sexual assault count. In imposing such sentence, the learned trial judge stated:-
On 5th December, 2005, the Court of Criminal Appeal ruled on an application for a certificate pursuant to s. 29 of The Courts of Justice Act, 1924, dealing with the question of sentencing in the light of s. 29 of the Criminal Justice Act, 1999. The Court decided to certify the point of law in almost exactly the same terms as in the case of RMcC as follows:-
The appeals of both R. McC and D were heard together by this Court. Decision In one sense the certified point of law in these cases is amenable to the simplest of answers, namely, that it would always be an error of principle for a judge to fail to take into account factors in mitigation of sentence, be it an early plea of guilty, previous good character, expressions of remorse or sustained attempts at rehabilitation. Whether it should always, or almost always, result in a reduction of sentence is another matter. That is the critical issue which arises on this appeal which is concerned in particular with the circumstances in which a maximum sentence, in these cases life imprisonment, can properly be imposed if some reduction in sentence by way of credit for a plea of guilty is normally to be given. The appeal also requires the Court to consider this issue having regard to the provisions of s. 29 of the Criminal Justice Act, 1999. Prior to the enactment of s. 29 of the Criminal Justice Act, 1999, it was settled law in this jurisdiction that an early admission, followed by a plea of guilty, was to be seen as a mitigating factor in the matter of sentence. In The People (Director of Public Prosecutions) v. Tiernan [1988] IR 250, Finlay C.J. stated, at p. 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.”
General Principles Concerning the role of a plea It has long been the settled jurisprudence in this jurisdiction that a plea of guilty is a mitigating circumstance which normally attracts some reduction of sentence. The amount of any reduction depends greatly on the stage in the proceedings at which it is offered. An admission forthcoming at the early stage of an investigation may be of quite considerable value, whereas at the opposite end of the spectrum a plea offered midway through a trial or at the outset of a retrial may have very little value. In the latter situation the victim of a crime will have already endured both the anxiety of awaiting the completion of an investigation and then the delay following a decision to prosecute before the trial actually comes on for hearing. The victim of the crime may have undergone cross-examination before the plea is tendered. Other instances where a plea may have little value might include cases where every possible avenue of legal redress to halt the prosecution is availed of by an accused before a plea is ultimately tendered on the eve or morning of trial. Nonetheless, it is undeniable that throughout the entirety of the jurisprudence in this country a reduction of some sort normally attends a guilty plea. I am not in this appeal concerned to revisit existing general principles of sentencing, although I accept as correct the contention advanced in the course of submissions ably presented by Thomas O’Malley B.L., counsel for one of the appellants, that there is a ‘due process requirement in sentencing’ to which any sentencing court should have regard. This requires that any sentencing court should conduct a systematic analysis of the facts of the case, assess the gravity of the offence, the point on the spectrum at which the particular offence or offences may lie, the circumstances and character of the offender and the mitigating factors to be taken into account – all with a view to arriving at a sentence which is both fair and proportionate. This form of approach was approved by this Court in The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306, when Egan J. also stated as follows at p. 315:-
The general approach outlined above was even more emphatically endorsed in the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v Stephen Kelly [2005] 1 ILRM 19. That is not to say that every step in the sentencing process has to be particularised in some formalistic or rigid way by the trial judge but rather that the basis for the sentence imposed should be both apparent and consistent with these principles. It now becomes necessary to consider what effect the introduction of s. 29 of the Criminal Justice Act, 1999 may have had on the general principles which have been considered up to this point. As already noted, S. 29 provides:-
(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 the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence. (3) In this section, “fixed by law”, in relation to a sentence for an offence, means a sentence which a court is required by law to impose on a person of full capacity who is guilty of the offence.” The presence in a case of ‘exceptional circumstances’ must now be seen, in the light of s. 29, as enabling a court, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. That does not mean that the Court is relieved of the obligation to consider all mitigating factors and give them due weight, but rather that, having done so, the court is not precluded from passing such maximum sentence. It would however be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those exceptional circumstances in such a way that would make it absolutely clear why the maximum sentence is warranted when there had been mitigating factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question. Life Sentence Legislation provides that, in the case of rape, the maximum sentence which may be imposed is life imprisonment. There are particular problems associated with the imposition of that form of non-mandatory maximum sentence. In practice, any decision as to the length of time a person sentenced to life imprisonment actually serves rests with the Executive Branch of Government rather than with the judiciary. However this fact in turn creates difficulty from the point of view of a sentencing court tasked with the imposition of a proportionate sentence. If ‘life’ does not mean life it can only be seen as unsatisfactory that a court exercising independent judicial powers is left in a situation of not actually knowing the “tariff” period which will be served by a person on whom such a sentence is imposed. This problem does not arise in the case of a determinate sentence, a fact which constitutes a strong incentive for the court to opt for the latter type of sentence. In the Annual Report of the Parole Board for 2005, Dr. Gordon Holmes, Chairman of the Board, stated in the foreword thereto that “the days of prisoners who have served 10 or 12 years [ie, of a life sentence] expecting to be released from custody are now over. The sentence they must serve must be a long and salutary one. The Board must do everything it can to promote public confidence and to ensure that its attitude to the dreadful crime of murder will remain constant. The position of human life in society must be restored.” At an earlier point Dr Holmes described as a “fallacy” any public perception that prisoners serving life sentences for murder were in fact serving only eight or ten years. Whatever the aspirations of the Parole Board, it is certainly clear that the imposition of a life sentence does not necessarily or usually mean imprisonment for the actual life of the prisoner. Anecdotally the average period of time served on foot of a life sentence appears to be of the order of 13.5 years. Life prisoners can then ordinarily expect release, albeit that such release may be described as temporary release and conditional insofar as the offender refrains from further offending. In the absence of a statutory Parole Board acting under defined terms of reference and applying settled criteria whose decisions would be accepted, except for stated reasons, by the Government, any sentence of life imprisonment remains one of uncertain duration. In imposing sentences in these cases, Carney J clearly saw it as being ‘in ease’ of the applicants that he was imposing life sentences rather than consecutive determinate sentences, in that the applicants might thereby secure earlier release. It may well be, therefore, and regardless of how odd it may appear, that an intention of granting some credit to the applicants for their guilty plea and co-operation with the Gardai underpinned to some degree the particular form of sentence actually selected. The Parole Board The Parole Board was established by the Minister for Justice, Equality and Law Reform in 2001 to review the cases of prisoners with longer term sentences and to provide advice in relation to the administration of those sentences. Before the Board can review the case of any prisoner, his or her case must first be referred to it by the Minister for Justice, Equality and Law Reform. Generally, the cases of prisoners sentenced to eight years or more, but less than fourteen years, are reviewed at the half sentence stage. The cases of prisoners sentenced to fourteen years or more, including life are reviewed after seven years have been served. The review process, which can take around six months, involves a number of stages. The first is that of referral by the Minister, following which the Secretariat of the Parole Board writes to the particular prisoner whose case is being referred to the Board and invites him to participate in the review process. A dossier is then assembled from relevant agencies, including the Probation and Welfare Service, the Governor, the local Prison Review Committee and An Garda Síochána. Then the prisoner is circulated with copies of reports compiled in his individual case. He is also allowed to attend an informal interview with members of the Board for the purpose of making submissions. Following such interview, a written report is prepared and a copy of this is given to the prisoner. There can be a number of reviews. Ultimately the Board makes its own recommendations to the Minister for Justice, Equality and Law Reform. Its recommendations may include a structured programme advising that the prisoner should participate in education or work training or work with particular therapeutic services. It may also recommend short periods of temporary release leading to longer periods of temporary release. The Board’s role is advisory only and the Minister is not obliged to accept any recommendation made by it. The Minister’s decision is conveyed to the prisoner, in writing, as soon as practicable after he receives the Board’s recommendations. Implications of any sentence of life imprisonment It will at once be apparent in the context of a sentence of life imprisonment that a considerable degree of uncertainty arises in relation to the length of time spent in custody by the sentenced offender. As Carney J. pointed out when imposing sentence in the present cases, the imposition of determinate consecutive sentences would virtually preclude any role for the Parole Board, given that seven years of any sentence must first be served before it can intervene. However, the question must be addressed as to whether a sentencing court can really concern itself with such considerations, other than in the most general way. As Mr. O’ Malley points out in his Sentencing Law and Practice, 2nd Ed., (Thompson Roundhall) at p.135:-
The Present Appeals Counsel for both applicants summarised the factors, which are common to both cases, which they argue would ordinarily demand that some reduction of sentence be given in line with the jurisdiction established by cases such as The People (DPP) v Tiernan and enumerated the following considerations to which the court would be obliged to have regard :-
(b) The guilty plea was evidence of genuine remorse (c) The guilty plea was of extra value as it was indicated at an early stage (d) In both cases there had been co-operation with the police (e) The guilty plea had saved court time and expense and had thereby facilitated the efficient administration of criminal work in the courts (f) Other cases could get heard by virtue of the guilty plea. They argued that concurrent determinate sentences would have met the exigencies of these cases and would have permitted a transparent application of the principle that the various mitigating factors be seen to have effected some worthwhile reduction in the sentences imposed. I am, however, content to adopt and follow the reasoning of the Court of Criminal Appeal in the case of the People (DPP) v D, the second of these appeals, notably insofar as the interaction between s. 29 of the Act of 1999 and the particular sentence is concerned. In that regard McCracken J stated at p 6:-
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