Court of Appeal dismisses appeal against consecutive sentences for two victims in a series of sexual offences.

COURT OF APPEAL

[201/18]

The President

McGovern J.

Kennedy J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND –

J. O’D

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 5th day of April, 2019 by Ms. Justice Kennedy

Introduction

1. This is an appeal against severity of sentence. Following pleas of guilty, the appellant was sentenced to 18 years’ imprisonment in

respect of two counts of rape contrary to s.2 of the Criminal Law (Rape) Act 1981, and four counts of rape contrary to s.4 of the

Criminal Law (Rape)(Amendment) Act 1990. The offending conduct concerned two victims and 17 counts were preferred on the

indictment, which included a further three counts of rape contrary to s.2, a further four counts of rape contrary to s.4, a count of

making a threat to kill, assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 and two counts

of false imprisonment.

Background

2. The appellant was a former partner of the first of two victims, EK. The second victim, CM, was a foster child of EK and resided with

her and was 16 years of age at the time. On the 10th September 2016, the appellant forcibly entered EK’s house. EK was asleep in

the living room, and awoke to the appellant placing a hand over her mouth and pressing a knife against her neck. When she

attempted to raise the alarm by screaming, he threatened to kill her and directed this threat towards the occupants of the house.

3. He instructed her to remove her clothing and when she refused, he struck her to the face on a number of occasions. He then

proceeded to rape her vaginally while at all times threatening her with a knife. At one point, he placed the blade of the knife against

her anus. She was also subjected by force to oral intercourse. These events continued over a period of time, during which the

appellant confined EK, resulting in her having to relieve herself in the living room.

4. During the commission of these offences, the appellant made enquiries as to who else was present in the house. He told EK he

wished to commit similar offences on CM and forced EK upstairs, naked, to CM’s bedroom in order to retrieve her. When EK attempted

to dissuade the appellant from interfering with CM, due to her young age, he threatened her with the knife and forced both females

downstairs. He then raped them vaginally, orally and anally. He forced the victims to perform sexual acts on each other. He sexually

assaulted CM multiple times, including digitally penetrating her. At one stage EK attempted to use her phone to make an emergency

phone call and the appellant took the phone and smashed it against the wall. He destroyed the sim card by chewing it. The events of

this evening lasted for a period in excess of seven hours and only ceased when the appellant, who had been drinking heavily

throughout, fell asleep and both females took the opportunity to flee and contact the Gardaí.

5. The appellant was arrested in the house and taken to the garda station where he made a number of admissions in respect of EK. In

respect of CM, he stated that he had no recollection of meeting her but did not deny the offences. Pleas of guilty were entered ten

days before the trial date.

The Sentence

6. In sentencing, the trial judge highlighted the seriousness of the offences and he said: -

“…on any yard stick, I have asked myself, is this the most serious class of case of this kind with which I have to deal?

That is to say, I have dealt -- extreme violence over many hours, two persons coerced and subjected into repeated

rapes and extensive sexual acts. The intrusion, by way of burglary, into the household of the complainant. The fact that

the accused could not, by any stretch of the imagination, have been of anything other than full responsibility because

notwithstanding any question of the consumption of alcohol. One has come across sexual offences which fall into the

most serious kind involving, say, abuse of children. But of this class, it is for it is for this class of offence, or because of

this level of seriousness, that the penalty of imprisonment for life is available to the criminal courts. I'd like to think that,

from such experience as I have or for such reports as exist, I am right in saying that this falls into the more serious

category.”

7. The sentencing judge considered the primary mitigating factor to be the plea of guilty but he noted that it was not an early plea.

He said: -

“…a considerable length of time has elapsed from the date of return to the date on which the plea was agreed or

tendered and accepted by the prosecution, even though the plea was not entered until some relatively short time

thereafter. So, whilst there were certain admissions made, extensive admissions in many respects, I do not class it as an

early plea. One has pleas of guilty at the last moment, say on the day of trial, but as pleas of guilty go, this was a case

where there was very substantial, indeed coercive evidence as to the offences. So less weight is obviously attached to

pleas of guilty where the evidence is coercive. And the plea, whilst not a last-minute plea, came relatively late in the

criminal justice process, which bears upon the extent of the accused's contrition and of course, also bears upon the

adverse effect of the matter on the victims.”

8. The judge, in considering the appellant’s evidence of rehabilitation, stated: -

“But in general, I'm prepared to accept that the plea, allied to what he has sought to do in prison, is indicative of

contrition, realisation of his wrongdoing and a willingness to seek to rehabilitate himself.”

9. The judge remarked that the reason he would not impose a life sentence was due to the appellant’s plea of guilty. A sentence of

18 years’ imprisonment was imposed being consecutive sentences of nine years in respect of the counts concerning each

complainant.

Personal circumstances

10. The appellant was 35 years of age at the time of offending. He has one previous conviction regarding the breach of a barring

order contrary to s.17 of the Domestic Violence Act 1996. He has worked in several jobs but has not gained steady or continuous

employment. At the time of sentencing, the judge received material concerning the appellant’s positive engagement with a number of

services and programmes whilst incarcerated.

Submissions

11. The submissions on behalf of the appellant were advanced under four headings and we will now address each in turn.

Submission 1

12. The sentencing judge erred in assessing the offence in the appellant’s case as meriting in the first instance an indeterminate

sentence of life imprisonment, which resulted in an actual sentence being passed, that was disproportionate and out of kilter with

previous sentencing precedents.

Appellant

13. The appellant submits that the judge erred in taking the view that but for the appellant’s plea of guilty, the offences in question

merited an indeterminate life sentence and it is submitted that the final sentence imposed was disproportionate and misaligned with

sentencing precedent. The appellant submits that, notwithstanding the gravity of the offending in this case, it does not fall into the

very rare category of cases for which life imprisonment is appropriate. The appellant refers to the judgment of Geoghegan J. in The

People (DPP) v. G. McC [2003] 3 IR 609. :-

“Even in relation to a fully fought out rape case, a life sentence would be rare. The kind of circumstances that might

justify it would be if the rape had been accompanied by extreme violence or if, say there had been a gang rape and in

addition there were previous rape convictions.”

14. Mr Heneghan SC on behalf of the appellant refers to The People (DPP) v. Murray [2017] IECA 292 wherein the Court of Appeal

increased a sentence of 15 years to one of 19 years. This case involved the imprisonment of a mother and her four-year-old son and

multiple incidents of rape, attempted rape, sexual degradation and severe violence involving the binding of the victim, as well as

repeated threats to kill both the victim and her son which lasted over 13 hours. The accused fully contested his trial and had 20

previous convictions, many of which involved violent offences. The appellant submits that there were greater aggravating factors in

the Murray case than the present case and yet a similar sentence was imposed.

15. The appellant also refers to The People (DPP) v. ED [2018] IECA 200, where a sentence of ten years was upheld in respect of a

violent rape. Here, the accused broke into his former partner’s home and raped her while the victim’s young daughter was at home.

The child had to barricade herself into a room armed with a knife as the accused attempted to break down the door. The accused in

this case had a previous conviction for assault causing harm and it seems he contested his trial. The appellant accepts that the facts

of the current case are more severe but argues that ED shows that a sentence of 18 years is out of kilter with accepted and

approved sentencing precedents for offences of this nature. The appellant also refers to The People (DPP) v. Hussey [2018] IECA 221

where the Court upheld a sentence of 13 years where the appellant had, whilst in a drunken state, broken into the home of the

complainant who was a 74-year-old woman living alone in a rural locale. He subjected the injured party to numerous acts of violence

including striking her in the face. He made several threats to the effect that if she resisted there were three further assailants who

would do her injury. She was raped both vaginally and anally. The appellant also refers to The People (DPP) v. Bermingham

(Unreported, Court of Criminal Appeal, 5th April, 2005) where a sentence of 21 years was reduced to 15 years where the accused, a

taxi driver, had taken three women hostage in his car and subjected them to a prolonged series of offences including vaginal and oral

rape and in addition had required them to perform sexual acts on one another. During and throughout the incident he had been armed

with a scissors with which he had threatened the victims. The appellant submits that these cases make it clear that the sentence

imposed was out of kilter.

16. The appellant submits that life sentences are usually reserved for cases in which the offending has been frequent and repeated

over a prolonged period of time and in circumstances in which the victims are often young children and in respect of whom the

defendant was in a position of authority or trust. The appellant cites the judgment of Clarke J. in The People (DPP) v. Z [2014] 1 IR

613: -

“This Court is strongly of the view that the sentencing judge was more than entitled to come to such a conclusion on the

evidence before him. As noted earlier there are striking similarities, at least at a broad level, between the offences to

which Mr. Z. ultimately pleaded guilty and the offences which were under consideration in both The People (Director of

Public Prosecutions) v. R. McC. [2007] IESC 47, [2008] 2 I.R. 92 and The People (Director of Public Prosecutions) v. D

[2004] IECCA 8, (Unreported, Court of Criminal Appeal, 21st May, 2004). While, as the Court has already noted, it will be

always possible to point to certain distinctions, it seems clear to this Court that those two cases and this case all fall into

an exceptional category which involves prolonged and depraved sexual and physical violence against persons who are

entitled to place their trust in the perpetrator. There may, of course, be other exceptional circumstances which could

arise on the facts of other cases. However, this Court is of the view that offences of this type are such as entitle a

sentencing judge to take the view, depending on the severity and nature of the abuse concerned, that exceptional

circumstances exist which might justify, even in the presence of some mitigating circumstances, the maximum sentence

of life imprisonment. The exceptional circumstances in such cases are to be found in the nature of the offences

themselves”

17. The appellant submits that this case does not fall within the exceptional category of cases where a single transaction would

attract a life sentence.

Respondent

18. Mr Greene SC for the respondent submits that the trial judge did not err in holding that but for the plea of guilty a life sentence

would be imposed as the facts of this case warrant such and says that this case falls within the exceptional category described by

The People (DPP) v. G. McC [2003] 3 IR 609, involving extreme violence and two victims who were repeatedly raped vaginally, orally

and anally. The victims were forced to perform sexual acts on each other with one victim aged 16 years.

19. The respondent submits that the facts of The People (DPP) v. Murray [2017] IECA 292 are not of a more aggravating kind than

present here. Both Murray and The People (DPP) v. ED [2018] IECA 200, involved the presence of a child but unlike the present case,

they were not subject to sexual offending. In the present case, the child in question was subject to multiple vaginal, oral and anal

rapes and sexual assaults in the presence of her foster mother and was forced to engage in sexual acts with her foster mother.

20. The respondent submits that the ordeal of each injured party in the present case was more severe than that suffered in The

People (DPP) v. Hussey [2018] IECA 221 and furthermore, The People (DPP) v. Bermingham (Unreported, Court of Criminal Appeal, 5th

April, 2005) can be distinguished from the present case as one victim was 16 years old and both were subject to anal rape and

physical violence in their own home. Furthermore, Bermingham contained mitigating factors in the form of an early plea of guilty from

the accused and a token gesture of remorse by way of compensation.

21. The respondent submits that it is not accepted that life sentences are reserved for cases where the offending is frequent and

over a prolonged period of time and in respect of children from a person in authority and the judgment of Clarke J. in The People (DPP)

v. Z [2014] 1 IR 613 does not limit the imposition of such sentences to the above scenario.

Submission 2

Failure to consider mitigating factors

Appellant

22. The appellant submits that the trial judge erred in considering the guilty plea to be the only mitigating factor. The appellant

further submits that the trial judge erred in limiting the value of the guilty plea due to the presence of “coercive evidence” and

categorising it as a late plea and says that it is unfair to devalue the guilty plea by virtue of “coercive evidence” as the majority of

the evidence was provided by the appellant. Furthermore, the appellant submits that the guilty plea was entered as soon as it was

practicable to do so. The timing of the plea was affected by the need of the appellant’s legal advisors to confirm certain documents,

which was accepted by the respondent.

23. It is submitted greater discount ought to have been afforded to the appellant by virtue of his admissions and it is submitted that

the appellant never denied his responsibility concerning the offending towards CM. The appellant submits that his genuine remorse,

lack of similar previous convictions and his steps in custody towards addressing his offending behaviour should have also been

considered.

24. The appellant says that the judge ought to have considered the degree to which the offending in question was out of character

and whilst accepting that intoxication cannot absolve his criminal responsibility says it is relevant in determining the extent to which

the offending was out of character. In this regard, the appellant refers to The People (DPP) v. Hynes [2016] IECA 102 which was

recently approved in The People (DPP) v. Friel [2018] IECA 216.

Respondent

25. The respondent submits that the plea came late in the day with no admissions in respect of CM. and says that the sentencing

judge was entitled to comment that such was a late plea and entered in the context of coercive evidence in circumstances where the

appellant was arrested at the scene of the offences. The respondent submits that the rehabilitative efforts of the appellant are

reflected in the 18-year sentence.

26. The respondent argues that the sentencing judge adopted a sensitive approach to intoxication and while there was evidence of

intoxication, it did not indicate that the appellant behaved out of character as there was evidence that he was in control of his

actions in other respects. The appellant has a previous conviction for breach of a barring order under Section 17 of the Domestic

Violence Act which is not irrelevant to his character in the context of this case.

Submission 3

Failure to attach sufficient weight to the public interest in rehabilitation

Appellant

27. The appellant submits that the sentencing judge erred in failing to attach sufficient weight to the public interest in rehabilitating

the appellant and, by failing to suspend any portion of the sentence imposed in order to incentivise same. The appellant says that the

judge attached minimal weight to the documents before the Court evidencing the appellant’s numerous attempts of rehabilitation, that

the judge, whilst acknowledging rehabilitation as one of the aims of sentencing, appeared to have dismissed the prospect of same by

reference to the gravity of the offence. The appellant submits that this approach was incorrect and resulted in an error in principle. It

is submitted that in circumstances in which the appellant had fully accepted responsibility for his behaviour, had demonstrated

genuine insight and remorse and was engaged in rehabilitative therapy whilst in custody, the sentence imposed in this case failed to

adequately or at all consider the public interest in rehabilitation.

Respondent

28. The respondent submits that the rehabilitative efforts of the appellant were given due weight which was reflected in the final

sentence ultimately imposed. There is no error in principle arising from the fact that the sentencing judge did not suspend a portion of

the sentence. It is submitted that the objective of incentivising rehabilitation can be accomplished by imposing a sentence which is

less than might otherwise be imposed. It is submitted that the appellant’s submissions ignore the fact that whilst the appellant

accepted responsibility for the offending in respect of EK, he did not do so regarding CM. The respondent submits that the Court

made its assessment on the prospects of rehabilitation on limited information as there was no risk assessment before the Court from

the Probation Services or any psychological assessment.

Submission 4

Failure in imposing consecutive sentences and failing to observe the principle of totality

Appellant

29. The appellant submits that there is a presumption that concurrent sentences ought to be imposed in respect of offences arising

from a single transaction except in exceptional circumstances and this holds true even if there are two victims. The appellant refers

to The People (DPP) v. Coogan (Unreported, Court of Criminal Appeal, 29th July 1997) where the Court held that it was within: -

“the judge's power to impose a consecutive sentence but that is a very exceptional course in cases which bear a close

resemblance and happen within a reasonably short time scale.”

30. The appellant submits that the overall sentence of 18 years with no suspension was disproportionate and offended the principle of

totality. The appellant submits that the decision of the trial judge to impose consecutive sentences made it more necessary to ensure

that the actual sentence imposed was not disproportionate.

Respondent

31. The respondent submits that exceptional circumstances existed in this case which justified the imposition of consecutive

sentences of 9 years in respect of the offences perpetrated against each complainant. It is submitted that, as was acknowledged in

the case of DPP v Coogan cited by the appellants, it was within the judge’s power to impose consecutive sentences in respect of two

victims in very exceptional cases such as this one as where the second victim was a 16-year-old child. It is submitted that the

overall sentence was proportionate and did not offend against the principle of proportionality and that no error in principle has been

identified by the appellant.

Discussion and Conclusion

Submission 1

32. The first submission concerns the judge assessing the offences as meriting a sentence of life imprisonment and it is argued that

this assessment of gravity is not in line with sentencing precedent. In imposing sentence, a court must assess the seriousness of an

offence with reference to the available penalty and the moral culpability and harm done. In this assessment, the court will consider

the aggravating factors. The judge concluded that the present case involved offending of a most serious kind. Aggravating factors

are distinct from the ingredients of an offence and can increase moral culpability. The nature or the manner of the commission of an

offence can aggravate the offence. It is important to note the aggravating features present in this case which include the following:

-

• The appellant breached the injured party’s home;

• There were two victims.

• One victim was of a young age.

• He violated both victims in many ways.

• He humiliated them for his own sexual gratification.

• He placed both in fear.

• He used a weapon in the course of the commission of the offences.

• The attacks were accompanied by violence, inflicting injury on EK

• The impact was devastating and life changing for both victims.

• The attacks continued for a period of in excess of some 7 hours.

33. The appellant seeks to rely on the decision of this Court in DPP v ED. However, in that case, there was one victim who was

subjected to a violent rape. Her daughter barricaded herself into her bedroom in fear of the appellant who tried to force his way into

her room. In the present case, there were two victims, each of whom was violated in the most appalling manner; involving conduct

which caused humiliation to each victim and over a prolonged period. There is a similarity with the ED case in that the violations took

place in the home where the victims in each instance should have felt safest.

34. There were 17 counts preferred on the indictment. The pleas of guilty were entered on a representative basis. Representative

counts or sample counts are often representative of extensive sexual misconduct on the part of an accused person, and this is so in

the instant case. The judge in assessing gravity was entitled to take into account the fact that the appellant threatened to kill the

first victim, he repeatedly struck her to the face causing her injury which ultimately may have caused her vertigo. He detained both

victims against their will, he destroyed the first victim’s mobile phone when she tried to call the emergency services, and he

repeatedly sexually violated the complainants. He forced them to carry out sexual acts on each other for his own sexual gratification.

35. The appellant in submissions refers to DPP v McC [2003] 3 IR 609, where Geoghegan J. said: -

“Even in relation to a fully fought out rape case, a life sentence would be rare. The kind of circumstances that might

justify it would be if the rape had been accompanied by extreme violence or if, say there had been a gang rape and in

addition there were previous rape convictions.”.

36. Whilst Geoghegan J. identified certain circumstances which might justify a life sentence, we would add circumstances such as

repeated sexual violations of an individual, the carrying out of different types of sexual acts, the humiliation of victims, violating

victims in their own homes and the sexual violation of more than one victim in the same incident.

Conclusion

37. We reject the contention that the judge fell into error in considering this matter to be of the most serious character. The

appellant’s conduct was nothing short of shocking in terms of the breadth of its depravity, the determination to humiliate the victims

and his absolute disregard for his victims, in particular his refusal to be dissuaded from violating the 16-year-old girl notwithstanding

pleas to that effect from his first victim. We do not find any error in the judge considering that life imprisonment was the appropriate

sentence absent mitigating factors.

Submissions 2 and 3

38. They are that sentencing judge erred in principle by failing adequately or at all to consider the various mitigating factors and by

failing to make appropriate reductions by reference to same and that the judge erred in failing to attach sufficient weight to the

public interest in rehabilitation, and in particular by failing to suspend any portion of the sentence to incentivise rehabilitation.

39. In particular, in this respect it is submitted that the judge erred in considering that only by virtue of the pleas of guilty an

indeterminate sentence would have been appropriate. It is contended that the judge failed to take into consideration the appellant’s

admissions following arrest, his genuine remorse, his lack of similar previous convictions, that the offending was out of character for

him and his efforts towards rehabilitation.

40. In his sentencing remarks, the Court made specific reference to the fact that the appellant acknowledged his guilt and also made

reference to the appellant’s effort to rehabilitate himself. The judge accepted that his pleas of guilty allied to his efforts of

rehabilitation whilst incarcerated were “indicative of contrition, realisation of his wrongdoing and a willingness to seek to rehabilitate

himself”.

41. Furthermore, in the course of his sentencing remarks, and whilst addressing the issue of the timing of the pleas of guilty, the

judge recognised that admissions were made which were extensive admissions in many respects. It should also be noted, as it was by

the judge, that the appellant did not admit his wrongdoing in respect of CM by way of admissions to the Gardaí but simply indicated

that he had no recollection of that activity.

42. It is submitted on behalf of the appellant, that his conduct on the night in question was to a degree, out of character. Emphasis

is placed upon his level of intoxication and whilst it is properly accepted that intoxication cannot absolve the accused from criminal

responsibility, it is submitted that it is relevant to his mental state to the extent that the offending may have been out of character

for him.

43. The judge considered the issue of intoxication and was of the view that the appellant bore full responsibility for his actions

notwithstanding the consumption of alcohol. He pointed to the prolonged course of conduct in which the appellant engaged, the fact

that on the night in question he drove for approximately twenty minutes to reach his victims’ home, he armed himself with a weapon

and he interfered with and destroyed EK’s phone. The contention that his drunkenness in some way assists the argument that the

course of conduct he engaged in was out of character does not withstand scrutiny. The judge did not err in that respect. The

respondent makes the observation that the plea in mitigation outlines that the use of pornographic material was partly to blame for

his offending conduct and that he had blurred the lines between fantasy and reality. This is not in aid of the appellant.

The plea of guilty

44. A plea of guilty is an important mitigating factor and it means that the victim is not required to give evidence and be subjected to

the rigours of a trial and cross examination. It is trite to say that the earlier a plea is entered the greater the credit for that plea. This

is all the more significant in cases involving victims in that if a plea is entered at an early stage, the victim does not have to face the

prospect of having to give evidence.

45. In the present case, the appellant was returned for trial in February 2017. A trial date was fixed for the 22nd January 2018. It

seems that a plea of guilty was canvassed in early December 2017. The written submissions on the part of the appellant indicate a

need to confirm certain documents prior to being in a position to advise the appellant as to a plea of guilty. However, whilst the

appellant’s legal advisers no doubt acted fully in accordance with their professional obligations, the fact of outstanding material does

not in and of itself remove from an accused person the option of accepting his or her guilt at an early opportunity without waiting for

material by way of disclosure. An early plea of guilty is one which is entered at the earliest possible opportunity, clearly a signed plea

of guilty will attract the greatest credit, thereafter, a plea of guilty without taking a trial date and without waiting for disclosure will

attract significant credit and the later the plea the less the credit for obvious reasons.

Conclusion

46. In the present case, a period of approximately 10 months elapsed between the date the matter was returned to the Central

Criminal Court and December 2017. During this period of time, the complainants would have faced the prospect of having to give

evidence which was only removed in December 2017. This was not an early plea and indeed was not put forward by the defence as

being an early plea. It was properly classified by the judge as one which came relatively late in the process. He further concluded

that the timing of the plea bore upon the extent of the appellant’s contrition and impacted adversely on the victims. We do not find

an error in this respect. The judge acknowledged that the offer of the plea of guilty was made in December 2017 and gave the

appellant credit for that plea. In conclusion, in all the circumstances we are satisfied that the judge did not err in principle and gave

sufficient credit to the appellant for the mitigating factors present.

The final submission

47. The final issue on appeal is that the judge erred by imposing consecutive sentences in the circumstances of the appellant’s case

and/or by failing to adequately or at all observe the principle of totality.

48. The appellant submits that the judge erred in imposing consecutive sentences in circumstances where the offences were

committed in the course of a single, albeit prolonged, incident. It is submitted that consecutive sentences should not ordinarily be

imposed for offences arising from the same incident. In this respect reliance is placed on the decision of DPP v Coogan (Unreported,

Court of Criminal Appeal, 29th July 1997), where the Court of Criminal Appeal stated that: –

“We agreed that, strictly speaking, it was within the judge’s power to impose a consecutive sentence but that is a very

exceptional course in cases which bear a close resemblance and happen within a reasonably short timescale.”

49. A sentencing judge has significant discretion in deciding whether or not to impose consecutive sentences. In imposing sentence, a

court must impose a sentence which is proportionate in terms of the gravity of the offence and the personal circumstances of the

offender.

50. O’Malley states in his text on Sexual Offences, 2nd Ed., at para. 23-116:

“It is accepted here and in some other jurisdictions that when several prison sentences are being simultaneously imposed

they should ordinarily be ordered to run concurrently, unless there is some exceptional factor to justify making some or all

of them consecutive. However, this is merely a general principle and while the circumstances calling for consecutive

sentences are often described as exceptional, they need not be highly exceptional or unique. Text writers and courts

sometimes adopt as a starting point the idea that concurrent sentences should be imposed for offences arising from the

same incident or in the same course of criminal conduct. Otherwise the sentences should be, or maybe, consecutive. This

so – called one – transaction rule has never been particularly convincing.”

Conclusion

51. We find Professor O’Malley’s comments apposite, particularly as regards sentencing for sexual offences involving more than one

victim in certain circumstances such as in the present case where the appellant took a deliberate decision having violated one victim,

he was determined to then violate the second victim; therefore, there were two distinct and egregious acts of sexual offending. A

fundamental principle is that a sentencing judge must impose a sentence for each particular offence committed. We are satisfied that

the trial judge did not err in imposing consecutive sentences.

52. Criticism is made of the judge’s methodology in this respect, however, he considered a total sentence of 18 years to be

appropriate. He then considered whether he should impose lesser sentences and make those sentences consecutive to give a final

sentence of 18 years. He considered consecutive sentences appropriate in light of the fact that there were two victims and he

proceeded to sentence the appellant to nine years’ imprisonment in respect of the counts concerning each victim. Whilst this may

have been a slightly different approach, we find no error in principle.

53. Obviously, the Court must have regard to the totality principle and ensure that the overall sentence is an appropriate one. The

sentence must reflect the offending conduct when viewed in totality. A sentence of 18 years does not in the present case offend this

principle and we are satisfied that the sentences were proportionate and find no error in the sentence imposed.

54. Accordingly, the appeal stands dismissed.