THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
Appeal No. 183/2014
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on the 19th day of February 2016 by Mr. Justice Edwards.
Introduction
1. In this case the appellant, having been convicted by a jury in the Dublin Circuit Criminal Court on the 20th of May, 2014, on three counts on the indictment before them, namely encouraging or knowingly facilitating the production of child pornography contrary to s. 5(1) of the Child Trafficking and Pornography Act 1998 (count no. 2); sexual exploitation of a child contrary to s.3 of the Child Trafficking and Pornography Act 1998, as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008 (and as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007) (count no. 3); and child cruelty contrary to s. 246 of the Children Act 2001 (count no. 4) was sentenced on the 31st of July, 2014, to five years imprisonment, with the last twelve months thereof suspended, on counts 2 and 3, respectively; and to three years imprisonment on count no. 4. All sentences were to date from the 31st of July, 2014, and were set to run concurrently.
2. The appellant appeals against the severity of his sentences.
The Facts of the Case
3. In very broad outline, the case arose out of the videoing, using a phone camera, by the mother of a little girl, of her child’s involvement in sexual activity with the appellant, who was the child’s father, in a bedroom in the child’s home.
4. The detailed facts of the case are fully rehearsed in this Court’s earlier judgment in respect of an appeal by the appellant against his conviction. It is not proposed to repeat them. Instead, readers are referred to the said earlier judgment i.e., The People (Director of Public Prosecutions) v. P.M. [2015] IECA 325 (unreported, Court of Appeal, 21st December 2015), a copy of which is to be found on the Courts Service website (www.courts.ie) .
The impact on the victim
5. The victim in this case is very young and was unable on that account to furnish her own victim impact statement. However, the sentencing court was asked to receive in evidence a victim impact report prepared by a social worker from Tusla, the Child and Family Agency. However, parts of that report were objected to as going beyond a description of the harm done, and in those circumstances the unobjectionable parts of that report were read into the record by counsel for the prosecution. The portions read into the record stated:
“The current situation
This child is currently attending therapeutic services provided by [a named] sexual abuse unit. The child has been separated from her parents and has been placed in the care of the Child and Family Agency. This child was placed with a very committed and loving foster carer who will endeavour to support her throughout the recovery process
Impact of the abuse suffered.
Due to this little girl's young age it is difficult to determine the overall impact that the abuse she suffered has had on her and will have on her future life. However, academic research in the area of childhood sexual abuse is clear that child sexual abuse has short and long term effects on psychological functioning - Carr 2006.”
“In this little girl's case she was sexually abused by both her mother and her father”
“The social worker who was the long-term allocated social worker to this case from 2011 until 2013 did lots of work with this little girl around helping her to understand that both of her parents broke the touching rule and that this is why she is in care. Whilst this little girl appears to understand this rule and the reasons why she is not allowed to be cared for by either of her parents, professionals who have worked with her over time have stated that this little girl is in denial about her father's bad or wrong behaviours, actions”
“This child is already displaying behaviours including difficulty fully trusting that she is loved, extreme clinginess, indiscriminate behaviour towards adults that she does not know, telling lies, which both relate to her desire to please and desire for love and affection, premature sexualised behaviour and extreme fear”
Evidence as to the appellant’s personal circumstances
6. The evidence adduced at the sentence hearing on the 23rd of July 2014 established that the appellant and the child’s mother had been in a relationship for a number of years, and that they had one child, namely the injured party, who was born in August 2005 and was aged between 4yrs and approximately 6 months at the date of the offences in March 2010. The appellant and the injured party’s mother were not living together at the relevant time and the appellant was in fact living with his mother. At that point the injured party lived with her own mother during the week, but sometimes visited and stayed over at the appellant’s home at weekends. On other occasions the appellant visited and stayed over with his daughter and her mother at their house. It was on one such occasion that the offences took place.
7. The appellant was born on 3rd of February 1986 and so was 24 at the date of the offences and 28 at the date of his sentencing. He had previous convictions. He had trained as a carpenter, but worked in the construction industry as a machine driver. At the date of his sentencing he was in fact acting as foreman on a building site.
8. Under cross examination the prosecuting Garda accepted that the appellant had been extremely co-operative and had submitted to both a question and answer type interview in which he had answered all questions and had also given a full statement. He had been polite and accommodating.
9. The sentencing court also heard evidence from the appellant’s brother who told the court about his recollection of his brother growing up, about the appellant’s work ethic and work record, about his own family circumstances (he is married and he and his wife have two young children of their own) and how, by arrangement with the HSE (presumably Tusla), visits between the appellant and the injured party were being facilitated at their home, in circumstances where the witness and his wife were entrusted with the supervision of those visits. He stated that the injured party was staying overnight at their house once a month and that the appellant was keeping up good contact with his daughter and had contributed towards special occasions such as her communion and her holidays.
10. At the trial the court had already heard detailed evidence concerning certain intellectual or cognitive deficits that the appellant has, including testimony from three clinical psychologists, i.e., a Ms Niamh O’Connor, and a Dr Patrick Randall of Forensic Psychological Services (FPS) called on behalf of the appellant, and from a Dr Kevin Lambe, called on behalf of the respondent. Their evidence at the trial, which was relevant to certain issues raised in the course of a voir dire, is extensively reviewed in this Court’s earlier judgment.
11. While there was a conflict in the psychological evidence as to whether the appellant was a particularly vulnerable interviewee because of the level of his cognitive functioning (which was itself in dispute) and his tendency towards compliance, the trial judge had resolved that conflict by preferring the evidence of Dr. Lambe. Dr. Lambe had opined that that the appellant did not have an intellectual disability and intelligence was not a vulnerability in his case. However, from the perspective of sentencing it was potentially relevant, and the appellant’s counsel relied inter alia upon this evidence in his plea in mitigation, that the appellant’s cognitive functioning was assessed as being somewhere between borderline (the FPS assessment) and low average (Dr Lambe’s assessment), and it was not in dispute that he has a tendency towards compliance.
12. The sentencing judge was also provided with a positive testimonial concerning the appellant from his employer, and with a letter from the social workers concerned with the child confirming supervised access.
Sentencing of the child’s mother
13. At the appellant’s sentence hearing the court was told that the child’s mother had pleaded guilty on the 21st of November 2011 in the Dublin Circuit Criminal Court to a count of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 and to a count of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998. She had two minor previous convictions for public order type offences. The Court heard that she had been sentenced on the 16th of July 2012 (by a different judge) to three years imprisonment on each count to date from the 16th of July 2012, with the last 20 months of the sentence being suspended on various conditions. The mother had completed her sentence as of the date of the appellant’s sentencing.
The sentencing judge’s remarks
14. In the course of sentencing the appellant, the sentencing judge stated:
“The accused was convicted following a six day trial on count 2 by a majority verdict, on count 3 by a majority verdict, on count 4 by a unanimous verdict of the jury. I was the trial judge and I heard a summary of the facts again from Garda Jennings on the 23rd of July last. In my view these offences are of a very serious nature, involving a young vulnerable child, the accused's own child. It is difficult to imagine a more gross breach of trust than that of a parent to their own child, and that is an aggravating factor in this case. I have been asked by counsel for the defence to have regard to the duration of the incident which gives rise to these convictions, that being the circumstances which were filmed, and the entire video lasts some 1 minute and 47 seconds, and although the incidents recorded are relatively short within that period, less than 1 minute, the significance and gravity of this incident is very much conveyed by the video clip itself. It shows this young child of four years of age engaged in sexual acts with her father while being filmed by her mother on her phone. The accused was aware that it was being filmed and the video shows him lying back and allowing it to happen in a relaxed state. He made no effort to intervene or to protect his young child, other than asking his mother to stop towards the end of the clip when the child was hurting him. There is no doubt that the mother instigated this incident, however he fully participated in it. I have considered the sentence given to [T] in the matter.
To his credit, he made a voluntary statement and made certain admissions to the gardaí and cooperated fully with them. He told the gardaí he knew what was done was not right and he accepted in interview that he played an active part in it. He has no previous convictions. He is 20 years of age. He lives at home. He has the support of his family and has for the most part maintained employment in a labouring capacity and a letter from a relative's construction company has been handed into Court in this regard. He and his family have maintained contact and access with the child, who is now in full time care, and she seems to be doing well by all accounts. I have taken into account the limited extract of the victim impact report furnished by Vanessa Lynch and it is far from clear what impact the incident has had on the child, given her tender age. The Court heard from [J], a brother of the accused who sees the child and facilitates access. The accused's name has gone onto the sex offenders register which is itself a penalty for the crime. However, no reasons or explanations have been given for these offences and it seems that the accused simply blames [T]. It has been suggested that he was asleep or hung over at the time it occurred. He told gardaí that he knew what was done was wrong, although I do accept and take into account that the deprivation of liberty for somebody like [P.M.], a working man with no previous convictions and perhaps not as streetwise as others, will be very difficult. I am conscious of the fact that I am dealing with less than 60 seconds on video and I am not visiting the accused with anything else that he may have done, and I say that in light of the extract from the victim impact report. There has been no remorse, however, shown by [P.M.] and no question of any treatment or counselling or anything of that nature has been suggested or availed of by him.
In my view, the offences fall within the middle range in respect of each count on the indictment and taking into account all of the above I am imposing a custodial sentences of five years in respect of counts 2 and 3, and three years in respect of count 4 to run concurrently and I will suspend the last 12 months of that sentence, the final 12 months to be suspended subject to his own bond of €200 to keep the peace and be of good behaviour for the duration of the sentence and subject to the following conditions: a period of 12 months post release supervision within to fully cooperate with the Probation Service including attending all appointments with the service, to engage with any treatment services as deemed appropriate by the Probation Service and to advise the Probation Service of any changes in circumstances such as contact details and contact telephone numbers.”
The grounds of appeal
15. It is contended that the sentencing judge erred in principle in determining that the appropriate sentences for each of the three offences of which the appellant had been convicted by the jury fell into “the middle range”. It is suggested that in doing so she took into account inappropriate matters as being aggravating factors, and failed to have regard to other factors relevant to moral culpability. In particular it is complained that she took into account as aggravating factors:
that the appellant made no effort to intervene or protect his child other than asking the mother to stop towards the end when the child was hurting him;
that the appellant fully participated despite the fact that the mother instigated the incident;
that no reasons or explanations were given by the appellant for the offences and that seemingly the appellant simply blamed his co-offender;
that there was no remorse shown by the appellant and no question of treatment or counselling or anything of that nature had been suggested or availed of by him;
16. It was further contended that the trial judge erred in failing to take into account adequately or at all the mitigating factors in the case, including:
that the appellant had co-operated fully with An Garda Siochana;
that the appellant has intellectual difficulties and is a person of low intelligence who may suffer undue hardship in custody on that account;
that the appellant plays a particularly important role as a father to his daughter;
that the appellant was previously of good character, had a good work record, and had produced positive testimonials;
that the appellant had not been the instigator of the offence and that his role had been essentially a passive one;
that the applicant was remorseful
Discussion and analysis
17. The first thing the sentencing judge was required to do was to determine the seriousness of the offending behaviour, assessing it with reference to the culpability of the offender and the harm done, taking into account aggravating circumstances, and locate it on the spectrum of available penalties
18. The maximum sentence in respect of count no 2 was fourteen years imprisonment, that in respect of count no 3 was also fourteen years imprisonment and that in respect of count no 4 was seven years imprisonment.
19. The sentencing judge expressed the view that each of the offences of which the appellant had been convicted fell “within the middle range”. Assuming that the sentencing judge had mentally engaged in at least a three way division of the spectrum, that would have yielded in respect of counts 2 and 3, a low range from non-custodial options (i.e zero custody) to 56 months (4 years and 8 months); a middle range from 57 months to 112 months (9 years and 4 months ) and a high range from 113 months to 168 months (the maximum of 14 years). The pro rata figures for count no 4, which only has a potential maximum penalty of seven years imprisonment, would be 50% of those indicated in respect of counts 2 and 3.
20. The headline sentences actually determined upon (assuming the only allowance or discount for mitigation was the suspension in each instance of the last twelve months of the sentence) were five years each in the case of counts 2 and 3 respectively, and three years in the case of count 4. In each case these were sentences that did fall squarely “within the middle range”, though somewhat towards the lower end of that range particularly in the case of counts 2 and 3 respectively.
21. Counsel for the appellant has argued that if the seriousness of the offending behaviour in this case had been measured using the suggested five level COPINE scale which has received judicial approval by the Court of Appeal (Criminal Division) in England and Wales in R v Oliver [2003] 1 Cr App R. 28, it would have been measured at level one on that scale. It was further argued that even if the COPINE scale were not to be endorsed by this Court, the circumstances of the present case did not merit it being placed within the middle range, and that it properly belongs in the low range. In making this case counsel for the appellant relies particularly on the short duration of the offence, the appellant’s role, the fact that the filming which occurred was not for commercial exploitation, nor intended to be disseminated, and the appellant’s established low intelligence and tendency towards compliance.
22. In response counsel for the respondent strongly disputes that the sentencing judge in assessing the seriousness of the offence treated anything as being an aggravating factor, beyond the fact that there had been a breach of the trust owed by a parent to his child. It was submitted that the other matters listed as factors supposedly taken into account by the sentencing judge as aggravating circumstances were not in fact taken into account by her in that way. It was contended that the matters identified were merely recited by the sentencing judge as being circumstances of the case, rather than aggravating factors.
23. This Court agrees with the respondent’s said submission. A careful reading of the trial judge’s remarks establishes beyond any doubt that the only factor that the trial judge identified as actually aggravating the offences charged was the fact that there had been a breach of the trust owed by a parent to his child, and she was correct in that regard. In so far as she may have alluded to other matters she did so purely for the purposes of outlining the circumstances of the case.
24. Although referred to the decision in R v Oliver [2003] 1 Cr App R. 28, neither this Court, nor the court below, received any expert evidence concerning the COPINE scale approved in that case, concerning how it was developed, concerning the methodology used, concerning its statistical reliability, concerning how it should be applied in practice, concerning what skills or training might be required to apply it correctly in an individual case, and concerning how specifically it might be applied with reference to the facts of the present case. In the circumstances the Court is not prepared to endorse the COPINE scale at this time. That is not to say that it might not be prepared to do so in another case or other cases should a proper evidential basis for perhaps adopting it be put forward. This present case is not however the case in which to do so.
25. This Court has considered carefully the sentencing judge’s remarks, and the evidence that she had before her bearing on the culpability of the offender and the harm done to the victim, and we are satisfied that she did not err in principle in rating the case as belonging within the middle range in terms of the spectrum of available penalties for each of the offences charged. The offending conduct involved significant moral culpability notwithstanding its brevity, the non-commercial nature of the recording facilitated, the lack of any intention to see it published or to disseminate it widely or indeed at all, and the appellant’s low intelligence and tendency towards compliance. As correctly identified by the trial judge, it involved a very substantial breach of trust. Moreover, and in addition, it has led to the sundering of the family unit and has caused great harm, both psychological and psychosexual, to the child concerned. In this Court’s view the sentencing judge correctly assessed the conduct in question as meriting headline sentences of five years imprisonment in the case of counts 2 and 3 respectively, and three years imprisonment, in the case of count 4.
26. It is then necessary to examine what the sentencing judge placed on the mitigation side of the notional scales of justice, and how she weighed those factors. She correctly identified the appellant’s cooperation and the admissions that he had made as mitigating factors. She also correctly identified the appellant’s low level intelligence and intellectual functioning as being capable of affording him some mitigation. The sentencing judge further referred to the appellant’s efforts to sustain a relationship with the injured party, and his lack of previous convictions, as well as referring to his work record and work ethic, and the positive testimonial that had been received in that regard.
27. In the course of her remarks the sentencing judge had also said that “there was no remorse, however, shown by [the appellant] and no question of treatment or counselling or anything of that nature had been suggested or availed of by him” Counsel for the appellant objects strongly to this remark as having been a misjudgement and incorrect assessment of the appellant’s true attitude, and as having been against the weight of the evidence. While counsel for the respondent has argued that the sentencing judge’s view was justifiable on the evidence, pointing out that the appellant’s actions in cooperating with the Gardaí, and abiding with directions from Tusla, are not necessarily indicative of remorse and might well have been self serving, this Court is inclined to disagree and feels that the weight of the evidence, viewed as a whole, and the attitude exhibited by the appellant both in his dealings with the police, and in his dealings with the professionals involved in his daughter’s case, supports the case that by the date of sentencing the appellant was in fact remorseful. Moreover, the fact that he elected to fight his trial is not to be held against him in that respect and, in fairness, the trial judge did not purport to do so. We do, however, consider that the trial judge was in error in discounting the existence of the appellant’s remorse, as it was a relevant mitigating factor that he was entitled to have taken into account.
28. In addition, in circumstances where the only ostensible allowance made for mitigation was the sentencing judge’s decision to suspend the last twelve months of each of the sentences, we consider that she must also have fallen into error in failing to attribute appropriate weight to the mitigating factors that she did correctly identify as existing. In particular, the appellant’s previous good character was something to which greater weight should have been attached. In addition, and following on from that, the need to incentivise rehabilitation is particularly important in the case of a first time offender. It was imperative to do so in this case where the re-building of trust between father and daughter was already under way, something which was a desirable objective and very much to be encouraged in the interests of both victim and offender. The absence of reasons or explanations for what had occurred, or expressions of willingness to undergo treatment or counselling, was not necessarily to be seen as indicative of a lack of openness to rehabilitation, particularly in the light of the evidence concerning the level of this appellant’s intelligence and intellectual functioning. In addition, the appellant, although he contested his trial which was his entitlement, had nonetheless been co-operative to a high degree with the Garda investigation, and had made extensive admissions. He was certainly entitled to some further mitigation in recognition of that. He was also entitled to some further mitigation in respect of his good work record and work ethic. Moreover, some account required to be taken of the well recognised fact that persons with a low level of intelligence and intellectual functioning may be more susceptible to being bullied in prison, and may therefore find prison harder to endure. All in all, we are satisfied that the suspension of the last twelve months of each of the sentences was not sufficient in itself to adequately reflect the mitigating factors in this appellant’s case.
29. In the circumstances this Court must allow the appeal, quash the sentences imposed in the court below and proceed to re-sentence the appellant.
30. In accordance with established jurisprudence the parties on both sides were invited, on a contingent basis, to submit to the Court any new materials they might wish to have taken into account in the event of a quashing of the original sentences and a re-sentencing. In response to this the appellant has submitted a booklet of documents comprising a number of reports and further testimonials. The Court has considered these materials and has taken them into account.
31. In re-sentencing the appellant in respect of counts 2 and 3, respectively, the Court is satisfied that five years imprisonment is the appropriate headline sentence before any allowance is made for mitigation.
32. To adequately reflect the mitigating circumstances in the case the Court will reduce the headline sentences of five years by eighteen months, leaving net sentences of forty two months after discount for mitigation. However, given that the appellant is a first time offender, and having regard to the importance of incentivising the rehabilitation of a person in his position, the Court will further proceed to suspend the final twelve months of those forty two month sentences, upon the same conditions as applied to the suspension of the sentences provided for in the court below, leaving sentences to be served of thirty months (or two years and six months) in respect of counts 2 and 3, respectively.
33. In re-sentencing the appellant in respect of count 4, the Court is satisfied that three years imprisonment is the appropriate headline sentence before any allowance is made for mitigation.
34. To adequately reflect the mitigating circumstances in the case the Court will reduce that headline sentence by twelve months, leaving a net sentence of two years after discount for mitigation. In addition, to incentivise the rehabilitation of the appellant the Court will further proceed to suspend the final twelve months of that two year sentence, upon the same conditions as applied to the suspension of the sentence provided for in the court below, leaving a sentence of imprisonment of one year to be served in respect of count 4.
35. All sentences are to run concurrently and are to date from the dates of commencement of the original sentences, i.e. 31 July 2014.
