[147/2016]
The President
Edwards J.
Hedigan J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT (Ex tempore) of the Court delivered on the 2nd day of October 2018 by Birmingham P.
1. This is an appeal against severity of sentence. The sentences under appeal were imposed in the Central Criminal Court (McCarthy J.) on 3rd May 2016.
2. The appellant had faced an indictment containing twelve counts. Four of the counts related to his then girlfriend and eight counts related to his then girlfriend's mother. The offences involving his girlfriend occurred on Thursday 2nd July 2015 and then during the course of a further incident on Friday 3rd July 2015. The offences involving the girlfriend's mother occurred on Sunday 5th July during the course of an incident which lasted approximately two hours and forty minutes.
3. The pleas entered by the appellant involved two counts of rape contrary to s. 4 (oral and anal) and one count of rape contrary to s. 48 of the Offences against the Person Act 1861 (as amended) relating to PH, his then girlfriend. At the same time, pleas of guilty were entered to rape contrary to s. 4 (oral rape), rape contrary to s. 48 of the Offences against the Person Act 1861 (as amended) and aggravated sexual assault relating to TH, mother of the appellant's then girlfriend. At the request of the prosecution, a plea to a count of aggravated burglary which had appeared on the indictment was entered at a later stage. It was accepted by the prosecution that the pleas were entered at an early stage and that they should be dealt with as such by the trial judge.
4. While the offences involving TH, mother of the appellant's then girlfriend, were later in time, they immediately preceded the involvement of the Gardaí and for that reason, the facts relating to the incident which gave rise to those charges were outlined first. It is convenient to take that approach once more.
5. On Sunday 5th July 2015, TH, then aged sixty years, was alone in her home. As was frequently her practice on a Sunday, she was wearing a silk housecoat/nightdress and had not got fully dressed that day. She heard a tap on the door and when she opened the door, the appellant was there. He called her a whore and before she could say anything, he pushed the door and she fell sideways. As he pushed the door in, he punched her to the face and held a Stanley knife to her throat. At this stage, he was also verbally abusing her and continuing to call her offensive names. Initially, the complainant, TH, did not recognise the intruder, but within a minute or two, she did recognise him as the appellant whom she knew to be in a relationship with her daughter, PH. She made various efforts to calm him down, at one stage going to the kitchen to make a cup of tea, but he put the Stanley knife back to her throat. TH stated "he went a bit wild at that stage". At that point, he tried to bite her nose. The appellant dragged her by the hair away from the kitchen. She recounted being on the floor of the hallway, on her knees. She spent some five minutes in the hallway during which time the appellant hit her with her own hand. After about five minutes, he dragged her up the stairs by her hair. The appellant put a hairband in her mouth at that stage and then went through her wardrobes and found two belts from dressing gowns that were in the wardrobe. He removed all her clothing and tied her up using the two belts from the wardrobe. He undressed himself completely. He had part of one of the belts wrapped around her neck and he had her tied by the hands with the same belt, so that, in effect, her neck was tied to her hands. He told her that he would cut her throat. He told her that he would stay with her until the next morning until her daughter came to the home and then he was going to cut her throat as well.
6. The appellant attempted to anally rape TH when she was face down on the bed, but was not able to do so. He became angrier during the course of his attempts. The complainant, TH, believes that she may have passed out from time to time because, in addition to the physical assaults, he was also delivering physical blows to her. At one stage, the appellant turned her onto her back. She found it difficult to breathe. At one point, the band fell out of her mouth and then the appellant placed a bra in her mouth and the belt was tight around her neck. The appellant took TH into the bathroom: he partially lifted her because she was choking. He gave her a drink of water and he took the bra from her mouth and then said something along the lines of "I'll wash you off" or "I'll cool you down" and it appeared at this stage as though he was going to try and put her head into the toilet. He did not in fact do that, but rather, brought her back into the bedroom. He put TH on her back and put his penis into her mouth. The complainant's phone rang and he could not find it and became angry. He was not erect at that stage and that appeared to be making him angrier. When he put his penis into her mouth, he told her "you better work hard now or I'll kill you here and now". He produced the knife and put it to her neck and her breast. TH's belief is that at that stage, the appellant became partially erect and then raped her vaginally. Before putting his penis into her vagina, he had put his fist there. He had been punching her in the vaginal area.
7. At one point during the course of the incident, the appellant had made a call to the complainant's daughter, his girlfriend. That message went to the Message Minder service with the result that the appellant's girlfriend heard part of the assault on her mother and contacted the Gardaí. He was still at the scene when the guards arrived banging on the door. He tried to flee the scene with the knife, but was arrested in the back garden. During the course of the arrest, he was asked to put down the knife, but he refused, and the Gardaí used pepper spray. The appellant was described as violent and aggressive during the arrest.
8. Throughout this lengthy incident, the appellant was constantly threatening TH with the knife to different parts of her body, including her neck, her vagina and her breasts. He twice bit her nose.
9. So far as the offences involving PH, the girlfriend of the appellant are concerned, the first of these occurred on Wednesday 1st July 2015 into the early hours of Thursday 2nd July 2015. PH went to her home at about 10pm, having been drinking with the appellant earlier. The appellant was not invited into the home. PH's mother, TH, was in the house as was a former boyfriend of PH who was helping TH with some chores. The appellant appears to have become angry because he was not invited into the house and because the other man was there. PH left with the appellant to appease him as he was staying in a hostel. On the way to the hostel, he suggested that they go to St. Kevin's Church at the back of the school on Synge Street to have sex. It seems that they had gone there once or twice before for the same purpose. PH agreed. However, during sex, she was put to the ground and he became more forceful and aggressive than in previous sexual relations. She said to him that he was hurting her and asked him to stop. She defecated, but despite this and despite the fact that she was asking him to stop, he continued to have anal sex. He eventually stopped and they went to the hostel. There was evidence that the appellant apologised to PH along the lines of "I'm sorry, I'm sorry, I didn't mean to". The appellant asked PH to stay at the hostel on Thursday 2nd July 2015 and she did. They spent time together and ate dinner and both stayed at the hostel that evening. Early on the morning of 3rd July 2015, PH was awoken from her sleep by the appellant pulling her hair and they went outside for a cigarette. On the way back in, he motioned her into an adjacent bathroom and locked the door. There, he said "I'll show you, I'll show you, you disrespect me and I'll disrespect you". He said "I'll slice you up, I'll kill you". He put his hand over her mouth, he stripped her, she was upset, pleading with him to stop. He then proceeded to rape her, first anally, then vaginally and then orally. On Friday 3rd July 2015, PH left the hostel and went to a friend's house in Rush, in north County Dublin. During the day, PH and the appellant exchanged text and Facebook messages and in these, PH complained that she had been raped and she was sore and he asked if she wanted the Gardaí brought in on him. The prosecution view of the appellant's responses was that they amounted to an acknowledgement that his actions were not truly consensual.
10. Following his arrest and subsequent detention, the appellant was interviewed and during the course of the interviews, he made a number of admissions in relation to the offences committed upon TH. While these admissions were not fully complete, they were significant and would certainly have made it difficult for the appellant to contest the case.
11. In relation to the alleged offences against PH, in response to questions, the appellant admitted that there was sexual activity at the school, but indicated that it was consensual. He described the sex as "roguish". He denied sexual activity at the hostel.
Background and Personal Circumstances
12. In terms of the background and personal circumstances of the accused, he was born on 13th December 1968 and was forty-seven at the time of the offences. At the time all these offences were committed, he was on bail in respect of offences of false imprisonment relating to PH which had occurred on 16th November 2014, the appellant and PH continuing in a relationship after these offences were committed. Subsequently, the appellant pleaded guilty in the Dublin Circuit Criminal Court to these offences and received a sentence of three and a half years on 16th December 2015. According to the prosecution, these offences occurred in the car of PH. The appellant assaulted PH in the car on Bloomfield Avenue in Dublin 8. He then got into the driver's seat and drove her around areas of Dublin and Kildare for a couple of hours during the course of which he assaulted her, strangled her, punched her and tied her laces together. The appellant's previous criminal record involved matters of substance and matters of less substance. On 20th April 2007, he was sentenced to nine years' imprisonment in respect of eight sample counts of rape of a female, committed between 2000 and 2004, the complainant in that case being his daughter who was between the ages of twelve and fifteen years at the time of offending. On 27th January 2015, he received a six-month sentence in respect of an offence of failing to notify changes in his personal details as required by the Sex Offenders Act 2001. There were also convictions for failing to appear on remand dates, a conviction for s. 3 of the Misuse of Drugs Act, for begging and back in 1990, he had received a nine-month sentence in respect of counts of assault on a Garda and a count of malicious damage.
13. At the time of the offences in question, he was living in the City Hostel in Claremont Street. He had worked as a chef at one stage and had previously been married and was the father of four children.
14. The plea in mitigation focused on the fact that early pleas had been entered and that the appellant had never sought bail. It was suggested that there were indications of belated insight. He was on a waiting list for the psychological services within the prison system. The plea in mitigation advanced acknowledged that there would have to be a lengthy sentence, but the Court was urged to impose a determinative, as distinct from an indeterminate sentence or life sentence. It is this question of whether it was appropriate to impose an indeterminate sentence, a life sentence which is at the heart of the present appeal.
15. The sentencing Court had two brief, but nonetheless powerful victim impact reports from the complainants. PH commented that her life had changed as a result of the actions of the appellant who had taken her dignity, her self-esteem, her confidence and her mental health, but mostly her belief in forgiveness and her belief that there is good in people. She explains that on the night in question, the fear that she felt was unimaginable. She says that she had not been able to work since the incident, is no longer willing to go out and socialise and that, as she puts it, she is afraid of her shadow. She is now isolated, depressed, insecure and feels so alone. Her mother, TH, describes the incident as the worst horror and fear that she had experienced in her whole life. She explained to the Court that her home had been her sanctuary, but that this was taken away from her. It should be explained that she was a person who experienced reduced mobility because of arthritis and because of that arthritis was largely confined to the house. The position is that she can now not be alone. She found that Sundays are her worst days. She describes taking the post in from the postman with a chain and latch to the door. She was housebound, she suffers from severe arthritis and reading books was a source of great comfort to her, but her eyesight had deteriorated following the beating and she also referred to the fact that her hearing had deteriorated as a result of blows to the ear.
16. The trial judge, in accordance with his usual practice, put the matter back for consideration.
17. In the course of his detailed sentencing remarks, the judge addressed the facts of the offences and also addressed the jurisprudence relating to discretionary life sentences. He referred to the offences on TH as falling into what, in his view, was the most serious possible category of offending which the Court could rationally expect to see. He commented that when dealing with offences of the utmost seriousness, one does not cast about for what one might describe as the theoretically worst possible offences, but rather, one directs one's mind, as a person experienced in criminal law, to the question of whether the offences would be seen as being in the most serious category which might practically be envisaged. He said that he had so catergorised those offences, particularly the offences involving the mother. He then proceeded to impose life sentences in respect of each of the offences to which the accused had pleaded guilty, making these sentences consecutive to the sentence that was being served in respect of the false imprisonment which had been imposed by the Circuit Criminal Court.
18. The starting point for consideration of this issue is to be found in s. 29 of the Criminal Justice Act 1999. Section 29(2) provides:
"[t]o 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."
Clearly, the reference to exceptional circumstances indicates that the legislature envisaged that the normal situation, where there was a plea of guilty, is that a sentence less than the maximum would be imposed and that the imposition of the maximum sentence would occur only in exceptional circumstances and only when those exceptional circumstances relating to the offence were present. In the course of its judgment in the case of DPP v. O'Neill, where this Court upheld a discretionary life sentence that had been imposed following the abduction and then rape, oral, anal and vaginal in the case of one young girl, and oral and anal in the case of the other, the Court commented at para. 22 and subsequent paragraphs: "[c]ases where discretionary life sentences will be considered are likely to be rare, and those where discretionary life sentences, if imposed, will be upheld are likely to be extremely rare. There are number of reasons for this, not least the fact that if life sentences in such cases were to become usual, that they would provide a disincentive for individuals to plead guilty."
He pointed out that that aspect was the subject commented upon by Kearns J. (as he then was) in DPP v. RMcC where he said: "[t]here are also likely to be considerable negative implications for pending cases if the imposition of a non-mandatory life sentence becomes a norm in circumstances where there has been a plea and cooperation by an accused person. An offender with no previous convictions may well feel that the value of any plea or other cooperation will vanish into the ether if a life sentence remains a likely result when it comes to sentence. Many cases where there might otherwise be a plea might as a consequence be fully contested. This would add to the stress and upset of victims, slow down the efficient disposal of criminal work in the courts and add greatly to the cost and expense of processing individual cases. Lengthy, determinative sentences, on the other hand, may be seen as providing a more tangible mechanism for granting credit for a guilty plea and other mitigating factors in a form which is transparent and identifiable."
19. As already indicated, central to the appeal is the contention that this was not a case where a life sentence could or should have been imposed. It said that the judge erred in two respects; firstly, in having regard to Mr. O'Brien's personal circumstances and being influenced by those, in particular, by his prior criminal record. Secondly, it said that while the offences were obviously very serious, they were not cases of any greater seriousness than others in which lengthy determinative sentences were imposed. In fact, it said that there are cases which were, if anything, more serious which saw the imposition of lengthy determinative sentences.
20. The argument that s. 29 serves to focus all the attention on the circumstances of the offence as distinct from the offending echoes arguments advanced in the case of DPP v. Robert Duffy where the Court of Criminal Appeal delivered its decision on 19th January 2009 (Hardiman J). There, the Court was considering a discretionary life sentence that was imposed in respect of an offence of attempted murder involving a firearm, which was imposed on a person who had a previous conviction for murder also involving a firearm, in Northern Ireland. What Hardiman J. had to say merits quotation. Having set out the facts of the case, Hardiman J. commented:
"[o]n the hearing of this application, counsel for the accused did not dispute that the features summarised above were the salient features of the case. But these, he said, are all features which relate to the offender and not the offence. He submits that s. 29(2) of the Criminal Justice Act 1999 requires, as a condition precedent to the imposition of the maximum sentence ‘that the court is satisfied that there are exceptional features relating to the offence which warrant the maximum sentence'.
Counsel for the accused submits that the statute does not authorise the court to consider factors which relate to the offender rather than the offence. In this connection, he emphasises the contrast with s. 15A of the Misuse of Drugs Act 1977, as amended, which, in referring to the exceptional factors which permit the court to deviate from the mandatory sentence, describes them as ‘exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make the mandatory element of the sentence unjust in all the circumstances'.
Counsel for the accused contrasts this formulation with that to be found in s. 29 of the Act of 1999, emphasising that the latter measure does not permit a consideration of the offender, but merely of the offence itself. While counsel did not deny that the offence was a very grave one, he said that, taken alone, it would not warrant the maximum sentence, nor the total exclusion of the ordinary mitigating factors which operate in reduction of sentence.
In the opinion of the court, counsel is correct to emphasise the contrast mentioned above between the wording in s. 15A of the Misuse of Drugs Act 1977, as amended, (which, as it happens, was inserted by the Criminal Justice Act 1999) on the one hand, and that used in s. 29 of the Act of 1999, on the other. But, making every possible allowance for this point, the court is not convinced that the intention of the legislature in enacting s. 29(2) was to compel the court to consider only factors relevant to the offence and exclude those relevant only to the offender in considering whether the maximum sentence is warranted. Firstly, the subsection in question is one passed for the avoidance of doubt, the relevant doubt being a possible doubt as to the interpretation of s. 29(1). It does not appear to the court that apart from that declaratory function, it is intended to alter the pre-existing common law and this, as in The People (D.P.P.) v. Conroy (No. 2) [1989] I.R. 160, cited above, makes clear, permitted the imposition of non-mandatory life sentences.
Secondly, it is scarcely possible, having regard to our sentencing jurisprudence, to consider only the offence and exclude factors relating to the offender. On the contrary, in Professor Thomas O'Malley's justly well-reputed work on sentencing, Sentencing: ‘Law and Practice' (1st ed., Dublin, 2000) it is stated at p. 9:-
‘In Ireland, as we shall see, the most fundamental principle is that a sentence should be proportionate to both the gravity of the offence and the personal circumstances of the offender'.
This factor usually endures in favour of a defendant but here it justifies the consideration of the fact that this is not merely a case of attempted murder with a firearm but it is a case of attempted murder with a firearm which was available at short notice, by a man who already had a conviction for murder. Moreover, he not merely re-offended by attempting to kill another man but did so after he had been, fortuitously from his point of view, given early release from the sentence imposed on him due to the operation of the Good Friday Agreement. It is also highly relevant to consider that the judge who imposed the life sentence in Belfast in 1996 took a view of the case such that the applicant was ordered to serve at least 25 years.
It is not a speculation as to the moral character of the accused, but a plain and obvious deduction from the proven facts, that the applicant here is a dangerous man, uninhibited about killing, with access to firearms, and capable of using a firearm on a very slight pretext such as (apparently) a sense of grievance on being thrown out of a pub. The law would be an ass if it failed to draw these obvious conclusions. The imposition of a term of life imprisonment on this man is in no sense an example of preventative detention: it is a sentence richly deserved by him on a count of a proven capacity to act in a feral way at least when provoked. His behaviour merits a condign sentence and has received it. The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case."
21. The Court would respectfully agree with what was said by Hardiman J. While the maximum sentence will only be imposed where there are present exceptional circumstances relating to the offence present, the sentencing Court will be required to impose a sentence that is appropriate i.e. a sentence appropriate to the offence committed by the offender before the Court for sentence. In this case, relevant to the selection of the appropriate sentence was the fact that the person who had committed the very serious offences with which the Court was dealing had relevant previous convictions which had seen him receive and serving a lengthy sentence in respect of sustained sexual offending directed against a child, his daughter. Also of relevance is that the offences were committed while he was on bail for serious offences which subsequently resulted in the imposition of a significant sentence.
22. So far as the offences are concerned, the Court endorses the view of the sentencing judge that when dealing offences of the utmost seriousness, one does not cast about for the theoretically worst possible case, rather, the judge said that one directs one's mind to what a person, experienced in criminal law, might see as the most serious category which might actively be envisaged. The Court agrees with that approach. The judge, having made those observations, indicated that he had so characterised the offences with which he was dealing and particularly those involving the mother.
23. In the Court's view, there were factors present which tended to put the offences into the exceptional category. There was, first of all, the fact that the Court was dealing with two complainants, a mother and daughter, with three separate incidents occurring within a short time, each very serious in its own right and each involving gratuitous violence. That the judge singled out the offences against the mother for particular mention is entirely understandable. Those offences were committed in the mother's home to which the appellant forcibly gained entry, so violating what should have been her sanctuary. The home violated was that of a vulnerable individual, someone largely housebound. The incident was a prolonged one, lasting two hours and forty minutes. The brief summary of the facts set out earlier in the course of this judgment gives some indication of how appalling was what followed. The production of a Stanley knife, the punching, the stuffing, of first a hairband and then a bra, into the injured party's mouth, undressing her, tying her with two belts, tying her neck to her hands, the threats to kill her, to cut her throat, accompanied by threats to stay the night and then cut the throat of her daughter as well when she would return the following day, the penetration that followed, anal, vaginal and oral. In the case of the vaginal penetration, not only was there penile penetration, but penetration with the fist. That incident was perpetrated by someone who, in the days immediately preceding it, had been involved in two separate incidents, each in its own right very serious, directed against TH's daughter. A further dimension of the depravity is that the first victim in time found herself listening to the attack on her mother on her mobile phone.
24. The Court does not resile in any way from its comments in O'Neill that discretionary life sentences are likely to be rare and that cases where discretionary life sentences will be upheld are likely to be very rare. But the Court is satisfied that there were present here a combination of factors which justified the sentencing judge in deciding that this was a case where the imposition of life sentences was appropriate. Having decided that it was a case for the imposition of life sentences, the judge proceeded to impose life sentences on each of the offences with which he was dealing. It might be that he would, instead, reserve the life sentences for the most serious of the individual sentences and impose concurrent sentences in respect of the other offences which, while very serious, would not have reached quite the same level of seriousness as the offences selected in the imposition of the life sentences. However, the fact that he did not do so would not seem to have any significant practical implication and as much seems to have been acknowledged.
25. In the circumstances, even though the Court, had it been sentencing itself, might well have opted for the approach of preserving any life sentences that were being imposed for the most serious individual offences, does not believe that the approach actually taken amounted to such an error as to require or to justify intervention.
26. In summary, the Court has not been persuaded that there has been an error of principle identified.
27. The Court will therefore dismiss the appeal.
