11
COURT OF CRIMINAL APPEAL
Fennelly J.
Lavan J.
Macken J.
No. 105/04
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
R McC Appellant
JUDGMENT of the Court delivered on the 12th day of May, 2005 by FENNELLY J. This is an appeal against sentence only. It is taken from a sentencing decision of Carney J made on 24th May 2004 in the Central Criminal Court. The learned judge granted a certificate of leave to appeal.
The indictment contained forty three counts of rape, attempted rape, sexual assault and assault against six different female victims, all children. The Appellant pleaded guilty to twenty sample charges. Two of the victims were the Appellant’s own daughters. The other four were his nieces. The offences were committed over a period of some eleven years from 1986 to 1997.
It is scarcely necessary to recount the history of the offences. Their very nature and their frequency over a very long period of time take them to, or very near to, the extremity of the scale of any criminal behaviour of this kind.
That is what gives rise to the single essential and important question which arises on the present appeal, namely whether the learned High Court judge committed an error of principle in imposing eight concurrent life sentences in respect of the rape counts. It is not contested, nor could it have been, that he acted correctly within the range of his discretion in imposing concurrent terms of four years imprisonment in respect of the counts for indecent and sexual assault.
Counsel for the Appellant, while citing a number of examples of appeal sentences in the worst rape cases to suggest a limit of something less than twenty years, did not contest the extreme seriousness of these offences.
The Appellant commenced to commit the offences against his own daughters in his own home when they were of very tender years, as young as five or six. One of the rapes and the single attempted rape were committed against one of his daughters. A remarkable and aggravating factor is the fact that he had several opportunities to amend his behaviour.
There was first period of offending from early 1986 to October of that year, when one of the daughters complained to her mother and the Appellant, upon being confronted, admitted responsibility. Husband and wife went to a priest, leading to an acceptance of his wrongful behaviour and a promise that it would not happen again. Nonetheless, he recommenced the abuse in about May 1987. A second confrontation in the autumn of that year led to attendance upon a doctor and counselling from social workers. Finally, the Appellant made a full statement to the Gardai, accepting responsibility for the offences against his daughters, in November of that year, 1987. But there was no prosecution. What was not then known was that the Appellant, while admitting the abuse of his daughters, had also been abusing several of his very young nieces at his home over the same period. For a time, the Appellant agreed not to reside in the family home, but he abused his nieces instead. He went to the Lebanon for several spells on Army service. Some of the offences were committed even after his return.
The Appellant usually arranged to commit the offences in the home, while his wife was out playing Bingo, which he encouraged. He frequently abused one of his daughters in front of the other. He was devious, calculating and ruthless. While it might be claimed that there was no additional violence or injury beyond that intrinsic to the offences themselves, it is clear that the Appellants’ daughters lived in genuine terror of his predatory and insatiable demands upon them. The depravity of the Appellant’s behaviour is of smaller importance than the extreme gravity of the repeated injury done to six innocent victims.
It is undoubted that the maximum sentence for the offence of rape as defined by the Criminal Law (Rape) Act, 1981 is life imprisonment.
Counsel for the Appellant submitted that the learned judge erred in the following respects:
1. By taking into account, purportedly in ease of the Appellant,that he would have greater access to the possibility of parole under a life sentence than under the only realistic alternative of consecutive sentences which, in the view of the learned judge, might add up to as much as thirty years;
2. By failing to allow any credit either for the fact of the Appellant’s otherwise good character and lack of previous convictions or for his early plea of guilty, whereby he relieved the victims of the unpleasant burden of giving evidence and generally being put through the severe trauma of a contested trial. 3. He had also voluntarily, while at liberty, undergone a programme of treatment for his sexually abusive tendencies for a period of some four years, which demonstrated that he was amending his ways.4. The very fact of imposing the maximum sentence demonstrates that no discount was allowed.
The Appellant, having given due notice to the prosecution, entered his pleas of guilty on 15th March 2004. The matter of sentence was then adjourned in order to enable victim impact reports to be prepared and for a probation report.
On the adjourned date, the reports were not to hand and a further adjournment was envisaged. On that date, the learned judge indicated that he wished to consult a recent judgment of this court, where an earlier decision, whereby he had imposed non-mandatory life sentences, had been upheld. He stated that this court had previously “repeatedly set aside any non-mandatory life sentences imposed by me so that I have just about thrown my hat at it….” He referred to the decision of this court delivered by McCracken J in which ten non-mandatory life sentences were affirmed. He also noted that, on that date, he had not yet heard any evidence in the present case. He said:
“That is not indicating any view but there are a large number of victims in this case and if there are consecutive sentences dealing with each victim may come to the same thing but, anyway, I want to see what the Court of Criminal Appeal have said…”
The Appellant advanced, as a first and distinct ground of appeal at the hearing of the Appeal before this court, an argument, which had been put to him, that the learned judge should have recused himself, as, it was claimed, he had shown bias by making reference in this way to the fact that this court, in another case, had affirmed non-mandatory life sentences. In particular, counsel said that the Appellant himself had raised a particular concern with his counsel in this respect and that the learned judge had indicated that he was considering the possibility of imposing life sentences. Counsel relied on Orange Communications Ltd v Director of Telecommunications Regulation and another [2000] I.R. 159, O’Neill v Beaumont Hospital Board [1999 ILRM 419, Wellwoman Centre Ltd. V Ireland [1995] ILRM 408. Counsel disavowed any intention to impute actual bias to the learned judge, but submitted that, in the circumstances, he had shown objective bias in the sense that a reasonable observer would have a reasonable apprehension that the judge had decided, before hearing the evidence, to impose life sentences. This court treated this as a preliminary point at the hearing and it rejected it, indicating that it was perfectly proper for the learned judge to draw attention to a potentially relevant recent decision of this court and that he had made it quite clear both that he had heard no evidence in the case and that he had no particular view. The court did not consider that there was any justification for the allegation of objective bias.
At the sentence hearing on 24th May 2004, evidence was given of the general background to the commission of the offences by Garda Phelim Moran. Two of the victims, namely one of the daughters of the Appellant and one of his nieces, gave evidence of the impact of the offences on the victims.
The learned judge stated, to begin with, that the decision of this court in DPP v N. Y. (unreported 19th December 2002) required him to adopt a suspended sentence as his starting point and to recite that he had considered that. This Court, in DPP v G.D., per McCracken J, delivered on 13th July 2004, that is, subsequent to the sentencing decision made in the present case on 24th May 2004, clarifies this particular issue. This Court has stated and now repeats that the crime of rape is one of the most serious in our criminal calendar, and that, other than in exceptional circumstances, it merits a custodial sentence. Accordingly, a trial judge is not bound to take as his starting point whether or not a custodial sentence should be imposed. He certainly was not required to do so in the present case.
The learned judge, in his decision on sentence, quoted, in its entirety, the judgment of this court delivered by McCracken J on 21st April 2004 in DPP v D. The facts of that case bore a strong resemblance to those of the present case. The accused had pleaded guilty to ten sample counts of rape of three of his daughters and to two sample counts of sexual assault on a fourth daughter. They were from an indictment of one hundred and fifty three counts. The offences were committed over a period of twenty years when the children were between six and twelve years of age. The court described them as disclosing “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 court said that it “must certainly be one of the worst cases of sexual abuse of young children by their father ever to come before the Courts.”
It would be difficult to justify using less strong language about the present case.
In that case, as in this, it was urged upon the court that the accused had pleaded guilty and made a comprehensive statement to the Gardaí at the earliest opportunity, so that his daughters knew from an early stage that they would not have to give evidence. In that case, also, the learned trial judge had considered that the accused would benefit to a greater extent from access to the parole system, if sentenced to life imprisonment, rather than to a determinate term. This Court did not find any fault with his inclusion of that matter among the considerations to which he had had regard.
In the course of the judgment, the court referred, in the first instance, to the judgment of the Supreme Court in DPP v G [1994] 1 I.R. 587, where a sentence of twelve concurrent terms of life imprisonment had been reduced to concurrent sentences of fifteen years. In the course of his judgment in that case Finlay CJ referred to the earlier Supreme Court decision in The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250 and in particular to his own judgment, in which he had stated at page 255:
“A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of offence, a mitigating circumstance.
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.
Such an admission of guilt may, depending upon the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a judge imposing sentence to have some expectation that if eventually restored to society, even after a lengthy sentence, the accused may possibly be rehabilitated into it.”
Finlay CJ recalled this passage in his judgment in DPP v G, cited above. He continued as follows at page 591:
“I am quite satisfied that that statement is correct and complete and that it is a matter of very considerable importance that it should be consistently applied by the courts. The fact that it will be applied must, it seems to me, be of importance in the process of trying to secure a situation in which the victims of rape and, indeed, other crimes of violence as well, may be spared the additional trauma and distress of giving evidence in court. The ruling of the learned trial judge in this case is one which displays extreme care and much compassion and it is impossible not to be struck with the concern which he showed in it for the possibility of the commission of further offences by this defendant if and when he should have finished the appropriate sentence of imprisonment which had to be imposed on him. I accept, however, that the fact that the maximum sentence was imposed in a case where the trial judge unequivocally accepted the importance and genuineness of the admissions and plea of guilty (which could not be described as inevitable) does constitute an error in the application of the principles applicable to sentencing, particularly in a case of rape.”
Having acknowledged this line of authority, this court in its judgment in DPP v D, cited above, stated that subsequently “and possibly in the light of the decisions, the Oireachtas ...” enacted section 29 of the Criminal Justice Act, 1999. That section provides, in relevant part:
“29.—(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 so, 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 the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
McCracken J, delivering the judgment of this court, in DPP v D., observed that it could interfere with the sentences only “if it can be shown that there was an error of principle involved.” He noted that the trial judge had not referred to the section, but held that “there could be no error of principle if he was satisfied that there were exceptional circumstances which would warrant a maximum sentence.” He continued:
“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.”
The court proceeded accordingly to hold that there was no error of principle in the sentences and rejected the application for leave to appeal. The Court is also aware of two subsequent decisions of this Court (DPP v Adams 11th January 2005; DPP v King, 7th April 2005), in which life sentences have been upheld.
Plainly, the decision of this court in DPP v D represents a departure from the earlier line of authority to the effect that it is an error of principle not to give credit for an early plea of guilty and expressions of remorse even for the most heinous of sexual offences. As already noted, sentences of life imprisonment have been imposed in two subsequent cases, where this Court delivered ex tempore judgments. In another extremely serious case, DPP v Bermingham (5th April 2005, per Geoghegan J) the Court reduced a net custodial sentence of twenty one years to a series of concurrent sentences of fifteen years. Equally clearly, the court based its decision on section 29 of the 1999 Act. Otherwise, it could not have failed to follow the earlier binding Supreme Court decisions. This court believes that, in the interests of coherence and consistency, it should, in resolving the issue before it follow this latest and carefully considered decision of this court. Carney J has expressed concern about inconsistent jurisprudence of this court. It is most undesirable to add to any such confusion.
It is beyond doubt that the offences in the present case are of extraordinary gravity and that the Appellant merits the severest punishment. The alternative to life imprisonment would, on the facts of this case, have been consecutive sentences for a determinate period. If the calculation of such cumulative sentences had totalled as much as thirty years, a figure suggested by the learned trial judge, the court would, in accordance with established principles, have been required to consider whether the totality of the sentences was disproportionate. Furthermore, on the authority of the pre-1999 line of authority, it would have had to consider the undoubted presence of the classic mitigating factors of otherwise good character and an early plea of guilty. However, to the extent that it is relevant, the court is of the opinion that, for the purposes of section 29 of the 1999 Act, the offences, taken on their own and in the absence of mitigating factors, were attended by circumstances of such exceptional gravity such as to warrant the imposition of the maximum penalty.
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.
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