Court of Appeal reduces rape sentences from 8 to 6 years due to miscalculation of concurrent sentence total.

THE COURT OF APPEAL

[145/17]

The President

Edwards J

Hunt J

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

D.N

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered on the 22nd day of October 2018 by Birmingham P.

1. This is an appeal against severity of sentence.

2. The sentence under appeal is one that was imposed in the Central Criminal Court on 15th May 2017. It was a sentence of 8 years’

imprisonment that was imposed in respect of two s. 4 rape offences. On that occasion, concurrent sentences were imposed in

respect of counts of sexual assault where there had been convictions. The sentences that were imposed were made consecutive to

sentences that had been imposed in Wicklow Circuit Court in respect of offences of a broadly similar nature, though charged as

offences of defilement.

3. The appellant brought an appeal against conviction and sentence and this Court has, in an earlier judgment, dismissed the appeal

against conviction. In the course of that judgment, the background to this matter is set out in some considerable detail and the Court

will not repeat that exercise at this stage. Suffice at this point to recall that the complainant was born in 1993 and the appellant was

born in 1952. When they first came into contact, it was in a situation where the complainant injured party was a young teenager and

the appellant was the local Priest.

4. Following a contested trial, the appellant was convicted of two counts of s. 4 oral rape at two different locations and of four

counts of sexual assault.

5. Apart from acting as Parish Priest, the appellant, as was not unusual, acted as a Chaplain and was also a member of the Board of a

local national school and it was in that context that there was first contact between the appellant and the complainant. While there

was some uncertainty, it appears that contact was around the time when the injured party was 12 or 13 years old. The injured party

had an interest in gardening and horticultural matters, generally, and this came to the notice of the appellant. The Priest’s house and

the garden attached to it were in close proximity to the school. The injured party was engaged on an occasional basis by the

appellant to do the gardening there.

6. Apart from the Priest’s house, the Parochial House in the Parish where he ministered, the appellant had his own small, private house

in a nearby village. The evidence at trial was that offending occurred at both locations. There was evidence that initially,

inappropriate remarks were made by the appellant with regard to whether the injured party was entering puberty. Matters progressed

to fondling, to a situation where the injured party was forced to touch the penis of the appellant and to engage in attempts to

masturbate him. On two occasions, the appellant placed his penis in the mouth of the injured party giving rise to the s. 4 charges.

7. In terms of the background and personal circumstances of the appellant, he is a former Roman Catholic Priest. It was said on his

behalf that he came before the Court as a 64-year old man, at that stage, destitute, who was, apart from this and the linked

offending, otherwise of good character.

8. On 21st March 2014, at Wicklow Circuit Court, he had pleaded guilty to 20 counts involving defilement of a child under 17 years

and under 15 years. The complainant Wicklow Circuit Court, and it was one complainant and one complainant only, was described as

the successor to the complainant in the case now before the Court. In the Wicklow Circuit Court case, the abuse commenced in 2007

and continued to 2012, while the abuse of the complainant in this case ended in 2006. The offences in this case were charged,

variously, as occurring on different dates between January 2005 and September 2006. The sentences that were imposed in Wicklow

Circuit Court were sentences of 7 years’ imprisonment in respect of the offences when the complainant was under 15 years of age,

and sentences of three and a half years when the complainant was under 17 years of age. The sentences were concurrent. Details of

the sentences that were imposed in Wicklow Circuit Court were given to the Central Criminal Court during the course of the sentence

hearing.

The Judge’s Approach to Sentencing

9. In the course of his sentencing remarks, and, having heard the evidence, the Judge had put the matter back to consider the

situation, as was his general practice. He commented that there were no mitigating factors. The Judge is criticised for saying this and

it is said there were mitigating factors present in terms of the appellant’s age, 64 years at the time of sentencing, that he came

before the Court as a man that was destitute, that he had a history of work and of service and that he had been of good character

prior to and apart from his offending behaviour. It is also said that since he had entered custody following his pleas in Wicklow Circuit

Court, that he had been admitted to an enhanced regime in prison. It said, too, that as a former Priest who has been convicted of

child sexual abuse, his status, when he is eventually released, will be that of a pariah and that this was a matter that should have

been taken account of by the sentencing Judge.

10. In the course of his sentencing observations, the Judge referred to the fact that the injured party was a child at the time of the

offences and said that the seriousness of the offences was compounded by virtue of the fact that the accused was the local Parish

Priest in the area where the injured party and his family lived and that he was involved in the management of the school that the

injured party attended initially.

11. The Judge said that it was plain that the injured party had been groomed by the accused. He referred to the most grave breach

of trust as exacerbating the offences and greatly increasing the moral culpability of the then accused. The Judge referred to and

quoted from a victim impact report. The victim impact report that had been put before the Court which showed that the offending

had impacted very severely indeed on the injured party. The Judge referred to the fall from grace and loss of standing in the

community experienced by the appellant. However, he also referred to the fact that the accused continued to deny wrongdoing. The

Judge saw admissions of responsibility as the first step towards rehabilitation, but that admissions were absent here. The Judge said

that he felt that were there not the Circuit Court sentences to be considered, that the appropriate penalty would have been in or

about 10 years on each of the s. 4 counts. However, in a situation where he felt that the sentences that he was imposing should be

consecutive upon the sentences then being served, he instead imposed sentences of 8 years in respect of each of the s. 4 counts

with lesser concurrent sentences on the sexual assault counts. There was also provision for post-release supervision.

12. The Judge referred to a sentence of three and half years having been imposed in respect of the offending that was dealt with at

Wicklow Circuit Court. In fact, as we have seen, the effective sentence imposed in Wicklow Circuit Court was 7 years. This apparent

error is a central aspect of today’s appeal. The Judge, in the course of his remarks, referred to the need for a proportionate sentence

and the need to have regard to the principle of totality. It said on behalf of the appellant that the effective global sentence of 15

years with no portion suspended fails to achieve proportionality and failed to address the question of rehabilitation. It said that the

Judge excluded considerations of incentivising rehabilitation in a situation where the case had been contested and the appellant was

continuing to deny wrongdoing, but it said that in deciding to exclude considerations of incentivising rehabilitation, he was in error.

13. This Court feels that the Judge was entitled to take the view that in the circumstances of the case, where there were no

admissions, that rehabilitation should not have been to the forefront of his considerations. The Court has, however, concerns in

relation to the impact of the error in relation to the Wicklow Circuit Court sentences. The Judge, as we have seen, indicated that if it

were not for the Wicklow Circuit Court sentences, that he would have regarded a sentence of 10 years’ imprisonment as being

appropriate for the two s. 4 rapes. But, having regard to the requirement for a proportionate sentence and the requirement to have

regard to the principle of totality, that he was imposing a lesser sentence than that, a sentence of 8 years on each of the s. 4 rapes.

14. It is not disputed that the sentence identified of 10 years for the s. 4 rapes, had they stood alone, would have been within the

available range, though Counsel on behalf of the appellant says that it would certainly have been at the top of the available range

and says that a starting sentence of 8 years might well have been chosen.

15. However, the complicating factor here is the reference to three and half years by the Judge rather than a reference to 7 years.

That raises the question of whether the Judge had intended a global sentence of 11 and a half years rather than the global sentence

of 15 years that has resulted. Counsel on behalf of the DPP, Mr. Conor Devally SC, very responsibly acknowledges the potential

significance of the error as to what had occurred in Wicklow Circuit Court.

16. In a situation where the Judge was expressly proceeding on the basis that the sentence he was imposing had to be modified from

what it would otherwise have been because it was being made consecutive to another sentence, the Court feels obliged to intervene.

If the Court was to reduce the sentence under appeal by three and a half years, the sentence that would remain would, in the

Court’s view, fail to reflect the seriousness of the offending behaviour that was in issue with the many aggravating factors that were

present.

17. In all the circumstances of the case, the Court believes that the appropriate course of action is to intervene and to reduce the

sentences that were imposed in respect of the s. 4 rape counts from 8 years in each case to 6 years.