Court of Appeal dismisses appeal against eight-year sentence for indecent assault on nephews, upholding consecutive terms.

THE COURT OF APPEAL

Record No. 230/2017

Mahon J.

Edwards J.

Hedigan J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

J.M.

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 20th day of March 2018 by Mr. Justice Mahon

1. This is an appeal against sentence imposed on the 2nd October 2017 at Dublin Circuit Criminal Court in respect of the appellant’s

conviction on six counts of indecent assault contrary to common law.

2. The sentences imposed were as follows:-

• Count 1: Eighteen months imprisonment to date from 2nd October 2017.

• Count 3: Eighteen months imprisonment to commence on the expiry of the eighteen month sentence imposed in respect

of count 1.

• Count 6: Six years imprisonment, with the final twelve months suspended on conditions, to commence on the expiry of

the sentence imposed in respect of count 3.

• Counts 9 and 13: Six years imprisonment, concurrent as between each other, and to date from the 2nd October 2017.

• Count 18: Eighteen months imprisonment, to date from 2nd October 2017.

3. The net custodial element of these sentences was, in total, eight years imprisonment dating from the 2nd October 2017.

4. There were two victims in relation to the various charges, namely K.F. and R.F., who are the appellant’s nephews. The offences

were said to have taken place between the 1st January 1980 and the 31st March 1984, almost twenty five years ago. During this

period of time the appellant was aged in his late twenties while the victims were aged approximately between eight years and twelve

years.

5. The indecent assaults consisted of acts of penetrative and oral sex. The most severe sentences imposed were in relation to the

sexual assaults on K.F. (counts 6 and 9) and of the sexual assault of R.F. (count 13).

6. The appellant has no previous convictions. He pleaded guilty at an early stage. He is now aged sixty four years.

7. Both victims gave fulsome and powerful victim impact statements in which they detailed the effects the appellant’s abuse of them

had had on their lives in strong terms, for example, living lives of distrust filled with crime, drugs and gangs, difficulties with personal

relations, missed bonds of unity, depression, low self esteem, isolation, anxiety, low self worth, attachment difficulties and resentment

abound. Problems with anger, drugs, alcohol and loneliness are just some of the consequences for these victims. Reference is made to

having been treated like an animal and being robbed of childhood. It is difficult to imagine how much more damage could have been

suffered by both victims. Some of the acts were, it must be observed, associated with particular degradation.

The grounds of appeal

8. The appellant relies on the following grounds of appeal:

(i) That the learned trial judge’s sentencing was excessive in all the circumstances;

(ii) the learned trial judge erred in law or in principle in failing to impose a sentence proportionate to both the offence and

to the personal circumstances of the appellant;

(iii) the learned trial judge erred in law in imposing repeated consecutive sentences;

(iv) the learned trial judge erred in law and in fact in that she failed to place adequate significance on the mitigating

factors in the case;

(v) the learned trial judge erred in law in failing to adequately or at all set out the basis upon which she viewed nine years

imprisonment as appropriate in the circumstances of the case before her;

(vi) the learned trial judge erred in law in failing to give adequate consideration to the appellant’s personal circumstances.

9. In relation to the aggravating and mitigating factors, the learned sentencing judge stated the following:-

“The aggravating factors appear to the court are the very serious nature of the trial. These offences occurred over a

long period of time. There was violence involved in the offences and the physical pain, never mind the psychological

pain, and emotional pain suffered by the injured parties who were very young and vulnerable at the time of the

commission of this offence. The court is taking into account as an aggravating factor the vulnerability and the age of

the injured parties at the time of the commission of these offences. The court - one of the injured parties was born in

October 1972 and the other was born in January 1974 and these offences occurred on the dates that I have already set

out to the court. The defendant was born in October 1953 so there was a considerable age gap between the defendant

and the injured parties. The defendant was in a position of authority, being the uncle of the injured parties, and there

was a complete and absolute abuse of trust between the defendant and the injured parties. The court is taking into

account that they were groomed, these offences were planned and pre-mediated and the circumstances surrounding

the commissioning of these offences as regards the arrangements made between the defendant and the injured parties

to attend at these addresses and what happened at those addresses and the grooming that took place of those children

at the time is taken into account as an aggravating factor.

The mitigating factors as they appear to the court are his plea of guilty and the value of that plea to the court, the

admissions, although limited, ??? interview in the garda station, he has no previous convictions, he has not come to

adverse gardaí attention since, his good employment record, the remorse he has shown, the antiquity of these

offences, having occurred in the early 1980s.”

10. A particular focus of the appellant’s oral submissions was directed towards the consecutive nature of the sentencing approach

adopted in the lower court. And, it is argued, if consecutive sentences were appropriate there was a failure to fully respect the

totality principle. It is contended that a net eight year custodial sentence for a first time offender aged sixty four years arising from

offending that concluded over a quarter of a century ago was unduly harsh. Furthermore, emphasis was placed on the public interest

in incentivising rehabilitation and that a significant period of suspended sentencing was appropriate.

11. A further criticism of the learned sentencing judge’s decision was what was described by Mr. Munro S.C. (for the appellant) as her

‘error in approach’ to sentencing in that she failed to adopt a best practice approach by first identifying the headline sentence before

reducing that term where appropriate in recognition of the relevant mitigating factors. While that criticism is not without justification

it is nevertheless the ultimate sentence imposed which will determine whether or not this court will intervene. It is of course the case

that a significant departure from best practice in sentencing procedure may warrant this court’s intervention. See, for example, DPP v.

Reilly [2016] IECA 43. Undoubtedly, in the instant case, the sentencing judgment was considered and comprehensive.

12. The imposition of consecutive sentences is essentially a matter within the discretion of the sentencing judge, subject always to

the principles of totality and proportionality. In general, consecutive sentencing is the exception rather than the rule. It is

nevertheless a fact that consecutive sentencing in not uncommon in sexual abuse cases where there are multiple victims and where

the sentencing range available is low. Both these features are present in the instant case. There were two victims involved, and the

available sentencing ranges were very restricted in relation to a number of the counts.

13. The offending in this case was particularly serious, indeed some of it was especially reprehensible and shocking. Its pre-

meditated, systematic and prolonged nature, and the very detrimental and long term consequences for the victims, placed the

seriousness of that offending, in terms of gravity, at a high level.

14. While the court accepts that a relatively lengthy prison sentence is likely to be difficult for a sixty four year old man without any

previous convictions it is nevertheless the case, to quote an old expression, that the punishment should fit the crime albeit with

allowances made for matters such as the age and health of the offender.

15. The range of custodial penalties reasonably within the learned sentencing judge’s discretion in this case lay probably in the region

of between six and nine years, and this court would be unlikely intervene where the sentence imposed fell within that band. A net

sentence of eight years falls within that range albeit at its higher end. It does not represent an error of principle and in those

circumstances this court will not intervene.

16. The appeal is therefore dismissed.