Court of Appeal refused extension of time to appeal sentence severity due to lack of real prospect of success.

THE COURT OF APPEAL

[114/18]

The President

McCarthy J.

Kennedy J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

TIMOTHY O’SULLIVAN

APPLICANT

JUDGMENT (Ex tempore) of the Court delivered on the 22nd day of March 2019 delivered by Birmingham P.

1. This comes before the Court by way of an application to extend time within which to appeal against the severity of a sentence.

2. The background to the application is to be found in the fact that the applicant, a 68-year man, was, on 27th November 2017, in

the Central Criminal Court, sentenced to an aggregate sentence of 11 years imprisonment in respect of rape and sexual assault

offences. The aggregate sentence was composed of a sentence of five years imprisonment and a consecutive sentence of six years

imprisonment, the two sentences being consecutive to each other.

3. The offending with which the Court was concerned was committed against two teenage boys, Boy A who was born in January

1981, in his case, the abuse occurred between 1st December 1995 and 30th December 1996, and Boy K, who was born in April 1978,

in his case, the abuse was between 1st June 1991 and 4th April 1996.

4. The application to extend is made in a situation where the applicant found himself some twelve or thirteen weeks out of time. It

appears to be the case that in the aftermath of the sentence hearing, the applicant discussed with his then legal advisers the

question of an appeal and the information put before the Court indicates that he was advised that an appeal was unlikely to succeed.

However, despite that advice, he came to the conclusion at one point that he did in fact wish to appeal.

5. How then should this Court approach an application? The way such applications should be approached was the subject of the

decision of the Supreme Court in the case of DPP v. Kelly [1982] IR 90. That is the case of Nicky Kelly that arose from the Sallins

train robbery. It will be recalled that what happened there was that a number of men had stood trial together before the Special

Criminal Court and the issue at trial related to the admissibility of admissions or confessions. Before the trial concluded, Mr. Kelly

absconded to the United States and he was convicted and sentenced in his absence. While he was in the United States, the others

who had stood trial with him appealed to the Court of Criminal Appeal and their appeal was successful, essentially on the basis that

the Court of Criminal Appeal took the view that the admissions should have been excluded. In those circumstances, Mr. Kelly returned

and sought to appeal out of time. The Court of Criminal Appeal refused that and it would appear was heavily influenced by the fact

that he clearly had not formed the intention to appeal within time, at the time of the appeal deadline was expiring, he was resident in

the United States. However, the Supreme Court said that when considering whether to grant an application for enlargement of time,

the Court of Criminal Appeal should be guided by what is required by the justice of the case and it should exercise its powers flexibly,

unrestricted and unhampered by any consideration other than what is required by the justice of the particular case in which the

application is made.

6. In any criminal case, there is a public interest in finality being achieved. That public interest is particularly acute in sex cases

where an out of time appeal is potentially damaging for victims. Almost on a daily basis, courts find themselves considering victim

impact reports which make clear that victims find engaging with the criminal justice system very difficult and very traumatic. When

the case concludes, if no appeal is presented within the prescribed time, victims are entitled to try and put the proceedings behind

them and to try and get on with their lives. An out of time appeal potentially prevents and inhibits that happening. The difficulty for

victims is likely to be greatest when the appeal is against conviction. This is not an appeal against conviction, but that is not to say

that victims can be expected to be unaffected or to be indifferent to out of time sentence appeals.

7. In this case, the extension sought – twelve weeks – is not a particularly lengthy one. That is a factor to be considered. Also

militating in favour of extending time is the fact that it appears that the applicant had decided to appeal within time. As already

indicated, an amount of information was put before us and it appears from that information that in the aftermath of the sentence

hearing, the applicant and his advisers addressed the question of an appeal and certain advices were given to him. Notwithstanding

those advices and notwithstanding that the sentence imposed was very much in line and very much in accordance with what had

been expected in advance, Mr. O’Sullivan came to the position that he would wish to appeal. Evidence was put before us of the

contacts that he had with a counsellor at this stage with whom he had had contact in the past. The significance of the contact with

the counsellor is not that he would have been in a positon to put fresh material before an appellate Court, but rather that the very

fact of contact shows what Mr. O’Sullivan’s mind-set was at the time. So, there are undoubtedly factors weighing in favour of

extending time.

8. On the other side of the equation, it seems to the Court that what weighs against extending time is that no information has been

put before the Court to indicate that there was anything unusual about the approach of the Trial Judge to sentence, no information

to indicate that there are matters which would likely require investigation and review by an appellate Court.

9. In his grounding affidavit, Mr. O’Sullivan indicates that he wishes to address the consecutive aspect of the sentence and the

cumulative or total sentence that was imposed. Even on the basis of the limited information which has been put before us by way of

the grounding affidavit and by way of the submissions of both sides, that information, limited as it is, leaves no room for doubt about

the fact that it was a case involving, as it did, two young victims where the trial Court was fully entitled to impose consecutive

sentences, and indeed, it must be said that it would have been surprising in the extreme if the Court had not done so.

10. This is a case where there were very many aggravating factors. The applicant was in a position of trust and that trust was

abused. Two young teenagers were plied with alcohol. They were brought to licenced premises and to saunas. They were in contact

with another individual who also engaged in sexual activity.

11. It is the case that no information has been put before us so as to cause us to believe that there is any real prospect of a

successful appeal. The situation would be very different if, on a review of the sentence imposed on the basis of limited information it

appeared that it was out of line with what might have been expected, or with sentences that had been imposed in similar cases.

However, that is emphatically not the case here. The sentence was very much in line with what would have been expected and with

what was in fact actually expected. Such information that has been put before us would suggest that if the matter was to go to

appeal, that the sentence imposed in the Central Criminal Court would be as likely to be increased as decreased.

12. In a situation where, on our assessment of the case, there is little prospect of a successful appeal, in our view, the interests of

justice would not be served by extending time.

13. We therefore refuse the application.