THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J. Appeal No.: 143/14
The People at the suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on the 10th day of October 2016 by Mr. Justice Mahon
1. On 3rd May 2016 this Court dismissed the appellant’s appeal against his conviction at Carlow Circuit Criminal Court on 7th May 2014 of twenty five counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, one count of attempted buggery of a person under seventeen years contrary to s. 3 of the Criminal Law (Sexual Offences) Act 1993, and one count of buggery of a person under seventeen years, contrary to s. 3 of the Criminal Law (Sexual Offences) Act 1993.
2. On 8th May 2014 the appellant was sentenced to four years imprisonment on counts 1, 5, 9, 13, 17 and 28, with other counts being taken into consideration. In respect of counts 5, 9 & 13 the sentences were directed to be served concurrently with the four year sentence on the first count. In respect of counts 17 and 28, these were directed to be served concurrently inter se, but consecutive to the sentences imposed on counts 1, 3, 5 and 9. In effect, the total prison term imposed was eight years, with no portion suspended. It was also directed the appellant would be subject to a one year post release supervision order, and it was directed that he be placed on the Sex Offenders Register for an indefinite duration.
3. The appellant has appealed against sentence.
4. As was noted by this Court in the course of its judgment on the appellant’s conviction appeal, compared to many cases involving sexual assaults, a number of unusual features arise in this case. The appellant was charged and tried in respect of twenty nine counts of sexual offences. The alleged victims were twin brothers who were born on 9th November 1983, and it was alleged that the offences all occurred in or around their family home and farm where the appellant had been employed as a labourer. The offences were said to have taken place between February 1991 and February 1999. All but one of the charges relate to one twin, A, and occurred when he was aged between seven and fifteen years, while the appellant was aged between sixteen and twenty four years. The assaults took place within the period in question and in which there was a three year gap (between 1994 and 1997) when no assaults occurred. The jury returned a not guilty verdict in respect of the second twin, B, so that guilty verdicts were returned only in respect of the charges relating to A. It was also noted that the sexual activity in respect of which the appellant was found guilty did not involve threats or violence, and furthermore, consensual sexual activity took place in 2004 between the appellant and A after A had reached adulthood.
5. Complaints relevant to the charges laid against the appellant were made by A to the gardaí on 9th October 2011, some twenty years after the alleged assaults had commenced and some seven years approximately after the single incident of consensual activity between the appellant and A in 2004.
6. The sexual assaults took place within two distinct periods, the first being when the victim, A, was aged between seven and ten approximately, and the second when A was aged between thirteen and sixteen years. The victim recalled that the offences occurred initially after the appellant exposed himself to A. The many instances of sexual activity which followed involved touching, masturbation, oral sex and an act of buggery. Generally, the incidents were consensual in nature, although initiated by the appellant. Taken individually, most of the instances were serious but taken together they constituted the sexual abuse of a child of an extremely grave nature.
7. Essentially there are three grounds of appeal in relation to the appellant’s sentence. Firstly, it is contended that the learned trial judge erred in fact and / or in law in failing to have any adequate regard and / or failing to attach any or any adequate weight to the fact that accused had no previous convictions. Secondly, the learned sentencing judge is criticised for failing to suspend any or any adequate part of the sentence and, in general terms, that the sentence was disproportionate having regard to all of the circumstances. Thirdly, it is contended that the learned sentencing judge erred in principle in directing that the two four year sentences be served concurrently.
8. The appellant did in fact have previous convictions but they were of a very different nature to the offences with which this case is concerned.
9. In the course of his sentencing judgment, the learned sentencing judge remarked:-
“In terms of aggravating features if you like, which go to decide what level of sentence is appropriate to this case, and where I should look at the range of sentences, I would have regard to obviously the age of the victim, the length and nature of the sexual contact between them. As I have indicated this is part of what I would describe as a campaign of offences. There was a deliberation about them. It constituted an exploitation of the age of the victim. He was a mere child at the time. It was an exploitation of the position to trust which Mr. M. enjoyed working on the family farm of the [victim]… and an aggravating feature of the case, to be involved in the early sexualisation of a child, and it is very difficult sitting here to understand how, when he had his own child at that stage, he nonetheless entitled to abuse another. They may indeed have been an element of grooming, it is mentioned in the victim impact statement in this, in that by virtue of the long sexual contact in his very early years that he was more amenable to sexual conduct in his early teenage years which we know occurred in the second period.”
10. The learned sentencing judge went on to express his view that the offences were at the serious end of the scale.
11. Mention was made by the learned sentencing judge of the mitigating factors in the case. Indeed it is difficult to identify any significant mitigating factors other than the fact that the appellant did not have any previous convictions, that he was relatively young at the time of the commission of the offences and that the abuse did not arise in circumstances where a victim had been threatened or physically harmed in any way, save for the abuse itself.
12. In handing down sentence, the learned sentencing judge went to considerable trouble to categorise the offences in terms of seriousness before proceeding to impose specific sentences in relation to each category. While no single offence attracted a sentence of greater than four years, the direction that some be consecutive to each other and that others be concurrent as between each other, resulted in a total overall effective sentence of eight years.
13. At the outset, this Court rejects the criticism of the learned sentencing judge’s decision to impose consecutive sentences. The offending in this case was prolonged and repetitive, and, in effect, occurred over two separate three year periods as already indicated. It is appropriate in those circumstances that the two sets of offences be, in general terms, viewed, for the purposes of sentencing, separately, and that the sentences in respect of each be served consecutively, subject to the principles of totality and proportionality.
14. While emphasising that all the offences were serious, and even allowing for the fact that offences committed in the first three year period involved a very young victim aged between seven and ten years old, the nature of the offences in the second three year period were, in their totality, more serious, as they involved an act of buggery. Furthermore, in the second three year period, the appellant was older, and having married and become a father himself, would have had a greater appreciation of the very grave abuse he was perpetuating on his victim.
15. While the learned sentencing judge’s general approach to sentencing in this case was commendable, the Court has identified an error of principle to this limited extent. The distinction as between the two periods of offending in terms of their gravity required recognition in the sentences imposed. In circumstances where the maximum sentence for each of the offences is five years imprisonment, and where the imposition of consecutive sentences is appropriate, the effective sentence for the offences committed in the second three year period ought to have been greater than that imposed in respect of the offences committed in the first three year period. In the Court’s view, the appropriate sentences were sentences of up to three years imprisonment in respect of the offences committed in the first three year period, and sentences of up to four years imprisonment in respect of the second three year period. Such sentences are now imposed in place of those imposed in the lower court.
16. Having so reviewed the sentences, this Court in re-sentencing the appellant must also take into consideration the appellant’s personal circumstances as they now exist. It is evident that the appellant has done well in prison. He has also become the father of a baby girl, who unfortunately has a medical difficulty which has required, and will require in the future, significant medical treatment. His partner, and the mother of his young daughter, has decided to stand by him and this is to both their credit. There is nothing to suggest that the appellant is at risk of further offending, and he has no relevant previous convictions. Having regard to the foregoing, the sentences now imposed by this Court are terms of imprisonment of three years and four years respectively in place of the two four year terms imposed in the court below. These sentences are to be served consecutively but with the final twelve months of the four year sentence suspended for a period of two years, on the appellant entering into a bond in the sum of €100 to keep the peace and be of good behaviour for a period of two years post release, in which the first twelve months will be subject to supervision. This means that the effective prison sentence is one of six years.
