Supreme Court dismisses appeals where life sentences for horrific serial rape were upheld despite guilty pleas due to exceptional circumstances.

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

Kearns J.

Finnegan J

[365/2005]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

R. McC

(1st APPELLANT)

AND

C. D

(2ndAPPELLANT)

JUDGMENT of Mr. Justice Kearns delivered the 25th day of October, 2007

The First Appellant

By certificate dated 4th October, 2005, granted pursuant to s. 29 of The Courts of Justice Act, 1924, the Court of Criminal Appeal, in dismissing the appeal

against the concurrent life sentences imposed upon the first appellant on 24th day of May, 2004, in respect of his conviction in the Central Criminal Court

on 15th March, 2004 on charges of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981 and s. 48 of the Offences Against the Person Act, 1861,

certified that its decision involved a point of law of exceptional public importance which it framed in the following terms:-

“Whether, in the light of the enactment of s. 29 of the Criminal Justice Act, 1999, it remains an error of principle for a judge, when imposing

sentence, to fail to make allowance for mitigating factors such as an early guilty plea, absence of previous convictions, remorse and

sustained efforts at rehabilitation, without prejudice to whether there was such failure in the present case”.

S. 29 of the Criminal Justice Act, 1999 provides, in relevant part:-

“29(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence

is fixed by law, a court, if it considers it appropriate to do so, shall take into account—

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.

(2) To 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”.

Background

This appellant, a former soldier, was born on 14th December, 1954. He was married in 1977 and is the father of seven children. On 15th March, 2004, the

appellant pleaded guilty in the Central Criminal Court to 20 counts involving sexual offences against two of his daughters and four of his nieces. There were

eight counts of rape, one count of attempted rape, four counts of sexual assault and seven counts of indecent assault. The offences commenced in 1986

and involved his two eldest daughters, who at the time were young girls under ten years of age. The pattern of offences, which extended to his nieces,

equally of extremely tender years, continued until 1997. His two daughters eventually made a complaint to the gardaí in November, 1999. He was

discharged from the army following his arrest on 6th September, 2000, and lived alone in a flat for four years until his case came before the Central Criminal

Court.

One of many tragic aspects of this case is that the appellant’s sexual offending had come to light in 1987 at which point in time he made admissions to the

Gardai and sought counselling to help him cope with his sexual disinhibitions. A file was sent to the Director of Public Prosecutions at that time, but a

decision not to prosecute was made. The offences involving his nieces occurred in the years that followed. It is clear from the victim impact evidence in this

case that all six girls were severely traumatised.

The appellant has no previous convictions. He provided statements to the Gardai following his arrest and indicated his willingness to plead guilty and to co-

operate with the Gardai at an early stage. He also participated in a COSC Sex Abuse Treatment and Prevention programme in his local Health Board area

and underwent individual psychotherapy.

In imposing sentence in the Central Criminal Court, Carney J. took the view that if he were to impose consecutive sentences of a determinate nature, the

minimum sentence which he could impose, having regard to the multiplicity and gravity of the offences, would be of the order of 30 years. He decided

against that course because it would remove any role for the Parole Board which, because of the nature of its role as later described herein, might have

provided some opportunity for early release for the appellant. In considering the imposition of a life sentence, the learned trial judge noted that when a

person is released pursuant to a recommendation of the Parole Board after serving a number of years of a life sentence, it is on license and the person is

subject to recall. He stated that any such person could be made the subject of an exclusion order which would preclude him from going to certain places,

and in particular to places where his victims might reside. He further noted that the Parole Board could open a file in respect of any sentenced person after

a period of four years and make recommendations after eight years. In that context, the Parole Board was empowered to review the circumstances both of

the accused and his victims.

He certified the appellant as a sex offender and imposed concurrent life sentences in respect of the rape offences and sentences of four years in respect of

the indecent and sexual assault offences, the same to be served consecutively in respect of each victim though concurrently with each other.

The trial judge granted a certificate for the purpose of an appeal to the Court of Criminal Appeal. The Court of Criminal Appeal delivered judgment on 12th

May, 2005.

In the course of delivering the judgment of that court, Fennelly J. noted that the trial judge had largely relied upon the judgment delivered by the Court of

Criminal Appeal in the second of these appeals, namely, The People at the suit of the Director of Public Prosecutions v. D [2004] IECCA 8, a case in

which it had been urged upon the court that the accused had pleaded guilty and made a comprehensive statement to the gardaí at the earliest opportunity,

a fact notwithstanding which the court in that case had upheld life sentences for a number of rape offences. The Court of Criminal Appeal had held it could

interfere with sentences only if it could be shown that there was an error of principle involved. While no reference had been made by the sentencing judge to

s. 29 of the Criminal Justice Act, 1999, McCracken J. in delivering the judgment of the court had held there could be no error of principle if the learned trial

judge was satisfied there were exceptional circumstances such as would warrant a maximum sentence. McCracken J. had continued:-

“In effect, this section outweighs any suggestion in the earlier cases that as a matter of principle a discount must be given for an early plea

of guilty.”

Fennelly J. in DPP v RMcC noted at p.6 that the decision in the Director of Public Prosecutions v. D:-

“represents a departure from the earlier line of authority to the effect that it is an error of principle not to give credit for an early plea of guilty

and expressions of remorse even for the most heinous of sexual offences.”

Fennelly J. was of the view that the court must have based its decision on s. 29 of the 1999 Act, as otherwise the Court of Criminal Appeal could not have

failed to follow earlier binding Supreme Court decisions which require that a discount in any sentence imposed should follow a guilty plea.

In the concluding part of his judgment, Fennelly J. stated at p. 6:-

“It is beyond doubt that the offences in the present case are of extraordinary gravity and that the appellant merits the severest punishment.

The alternative to life imprisonment would, on the facts of this case, have been consecutive sentences for a determinate period. If the

calculation of such cumulative sentences had totalled as much as thirty years, a figure suggested by the learned trial judge, the court would,

in accordance with the established principles, have been required to consider whether the totality of the sentences was disproportionate.

Furthermore, on the authority of the pre-1999 line of authority it would have had to consider the undoubted presence of the classic mitigating

factors of otherwise good character and an early plea of guilty. However, to the extent that it is relevant, the court is of the opinion that, for the

purposes of section 29 of the 1999 Act, the offences taken on their own and in the absence of mitigating factors, were attended by

circumstances of such exceptional gravity such as to warrant the imposition of the maximum penalty.

The court will, accordingly dismiss the appeal and affirm the sentences imposed in the Central Criminal Court. However, the court considers

that the question of whether section 29 of the 1999 Act should be interpreted so as to overrule the prior case law to the intent that it is no

longer an error of principle to fail to make allowance for an early plea of guilty is an important and difficult one, which would merit the grant of

a certificate pursuant to section 29 of the Courts of Justice Act, 1924, if one were applied for.”

The Appeal of the first Appellant

Having been granted a certificate under s. 29, this appellant has lodged the following grounds of appeal for consideration by this Court:-

(1) The sentences imposed were in all the circumstances excessive and disproportionate having regard to the following matters:-

(a) The delay in prosecuting the offences

(b) The decision of the Director of Public Prosecutions not to prosecute in 1988 despite the accused’s signed confession dated 14th

November, 1987, wherein he admitted serious offences

(c) The accused’s full cooperation with the Garda investigation in 2000 and 2001, including his signed confessions to having committed

sexual abuse, which confession was made while being interviewed as a patient in St. Bricin’s Hospital on 9th February, 2000, his

signed statement and memos of interview after his arrest on 6th September, 2000, and his subsequent volunteered statement to the

Gardaí on 5th July, 2001

(d) The conduct and remorse of the accused after these matters came to light again in 1999, his referral to the COSC Sex Offender

Treatment Programme run by the North Western Health Board, and his act of participation in that programme from the time of his

referral on 18th October, 1999, until he was remanded in custody on 15th March, 2004.

(e) The accused’s pleas of guilty to the offences before the trial court which were communicated in advance of his trial day to the court

and to the prosecution

(f) The failure of the trial judge to give any discount in respect of the aforementioned matters despite the established practice of the

Criminal Courts to take these matters into account in the determination of sentence, and the creation thereby of a legitimate

expectation of the mind of the accused and his legal advisors that credit would be given for the matters in question

(2) The learned trial judge erred in law by expressing the view that the imposition of multiple life sentences would be in ease of the accused,

because he would thereby become eligible for consideration for early release or parole by the Executive Branch of Government, a matter

which should not, in accordance with established principles, influence the judicial decision on the nature or severity of punishment to be

imposed. For this reason also, the sentences imposed were excessive and disproportionate.

(3) The learned trial judge erred in law by failing to consider the grounds of mitigation, including reports, put forward on behalf of the accused.

For this reason also, the sentences imposed were excessive and disproportionate.

The Second Appellant

On 28th April, 2003, CD (hereinafter referred to as “D” as per the judgment of the Court of Criminal Appeal) pleaded guilty to ten sample charges of rape and

to two sample charges of sexual assault, all offences which were committed against four of his daughters over a period of 20 years. The appellant is the

father of six girls and the family lived in the West of Ireland. The offences occurred between 1976 and 1996, but were only reported in 2001. The appellant

had married in 1970, but his wife died in 1986. The offences were committed against all four girls before they reached the age of puberty.

The appellant was born on 15th June, 1954, and is a farmer. He has no previous convictions. When questioned by the Gardaí in September, 2001 he

initially denied everything, but on 15th November, 2001, he came voluntarily to the local Garda Station and made a full statement. At the sentencing hearing

in the Central Criminal Court, evidence of a psychiatric examination of the appellant was furnished. In that report, the psychiatrist had noted the appellant’s

contention that he had himself been abused when a child. He also expressed remorse and apologised to his victims. He indicated a willingness to

cooperate in any programme of psychosexual counselling which might be offered to him whilst in custody. Counsel on his behalf informed the court that D

had been completely ostracised by his community once the offending came to light. The appellant, in addition to receiving psychiatric treatment, had

significant health problems, including prostate gland problems and arthritis. A number of testimonials in favour of the appellant were handed in to court prior

to sentencing.

In passing sentence, Carney J. noted there were 153 counts in the indictment and that pleas had been accepted in respect of twelve sample counts “on the

basis that they were sample counts”. He described the 20 year period of offending as a systematic process of sexual assault and rape which had

profoundly affected the victims. The learned trial judge then proceeded to impose sentences of life imprisonment on all of the rape counts, together with

sentences of five years imprisonment in respect of any sexual assault count.

In imposing such sentence, the learned trial judge stated:-

“This does in fact have an advantage from the accused’s point of view. It means that at the appropriate point in time he will have access to

the Parole Board. Were I to impose consecutive sentences in respect of each daughter, that in effect would deprive him of access to the

Parole Board. I certify him as a sex offender, and having regard to the fact that life sentences are being imposed I do not consider it

necessary to provide for post release supervision.”

On 21st May, 2004, the Court of Criminal Appeal refused to vary the sentences imposed in the Central Criminal Court, holding, as already noted, that the

learned trial judge did not err in principle in the sentences which he imposed.

On 5th December, 2005, the Court of Criminal Appeal ruled on an application for a certificate pursuant to s. 29 of The Courts of Justice Act, 1924, dealing

with the question of sentencing in the light of s. 29 of the Criminal Justice Act, 1999. The Court decided to certify the point of law in almost exactly the

same terms as in the case of RMcC as follows:-

“Whether, when imposing sentence, in light of the enactment of s. 29 of the Criminal Justice Act, 1999, it remains an error of principle for a

judge to fail to take into account such mitigating factors as an early plea of guilty, previous good character, expressions of remorse and

sustained attempts at rehabilitation.”

The Notice of Appeal filed on behalf of this appellant on 24th February, 2006, argued that the sentences imposed by the learned trial judge were tantamount

to a mandatory sentence imposed in the case of murder or other very serious charges following a contested trial. It was argued on behalf of the appellant

that the learned trial judge’s disregard for the credit which should have been afforded to the appellant following the plea of guilty resulted “in a breach of due

process”.

The appeals of both R. McC and D were heard together by this Court.

Decision

In one sense the certified point of law in these cases is amenable to the simplest of answers, namely, that it would always be an error of principle for a

judge to fail to take into account factors in mitigation of sentence, be it an early plea of guilty, previous good character, expressions of remorse or sustained

attempts at rehabilitation. Whether it should always, or almost always, result in a reduction of sentence is another matter. That is the critical issue which

arises on this appeal which is concerned in particular with the circumstances in which a maximum sentence, in these cases life imprisonment, can

properly be imposed if some reduction in sentence by way of credit for a plea of guilty is normally to be given. The appeal also requires the Court to

consider this issue having regard to the provisions of s. 29 of the Criminal Justice Act, 1999.

Prior to the enactment of s. 29 of the Criminal Justice Act, 1999, it was settled law in this jurisdiction that an early admission, followed by a plea of guilty,

was to be seen as a mitigating factor in the matter of sentence. In The People (Director of Public Prosecutions) v. Tiernan [1988] IR 250, Finlay C.J.

stated, at p. 255:-

“A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of

offence, a mitigating circumstance.

I have no doubt, however, that in the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by

a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed

with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional

suffering of having to describe in detail her rape and face the ordeal of cross-examination.”

Similarly in the Director of Public Prosecutions v. G [1994] 1 IR 587, having referred to this passage from the Tiernan case, Finlay C.J. stated at p. 591:-

“With the judgment I delivered in that case, Walsh J., Henchy J. and Griffin J. agreed, and McCarthy J., the remaining member of the Court,

although disagreeing on another issue, expressly accepted this and other propositions of a general nature which I had stated in my judgment. I am

quite satisfied that that statement is correct and complete and that it is a matter of very considerable importance that it should be consistently

applied by the courts. The fact that it will be applied must, it seems to me, be of importance in the process of trying to secure a situation in which

the victims of rape and, indeed, other crimes of violence as well, may be spared the additional trauma and distress of giving evidence in court…. I

accept, however, that the fact that the maximum sentence was imposed in a case where the trial judge unequivocally accepted the importance and

genuineness of the admissions and plea of guilty (which could not be described as inevitable) does constitute an error in the application of the

principles applicable to sentencing, particularly in a case of rape.”

In The People (Director of Public Prosecutions) v. M [1994] 3 IR 306, Denham J. held, at p. 319 that:-

“A plea of guilty may be an important mitigating factor, which is further enhanced by an early indication that it will occur. The amount of mitigation

will depend on the circumstances, including the likelihood of conviction if there had been no plea.”

In the People (Director of Public Prosecutions) v. Tiernan [1988] IR 250 , the accused had been sentenced to 21 years imprisonment for rape, which was

reduced to one of seventeen years imprisonment on appeal. In The Director of Public Prosecutions v. G , [1994] 1 IR 587, the accused was sentenced to

twelve concurrent sentences of life imprisonment for rape notwithstanding a plea of guilty, but on appeal the sentence was reduced to one of fifteen years

imprisonment.

General Principles Concerning the role of a plea

It has long been the settled jurisprudence in this jurisdiction that a plea of guilty is a mitigating circumstance which normally attracts some reduction of

sentence. The amount of any reduction depends greatly on the stage in the proceedings at which it is offered. An admission forthcoming at the early stage

of an investigation may be of quite considerable value, whereas at the opposite end of the spectrum a plea offered midway through a trial or at the outset of

a retrial may have very little value. In the latter situation the victim of a crime will have already endured both the anxiety of awaiting the completion of an

investigation and then the delay following a decision to prosecute before the trial actually comes on for hearing. The victim of the crime may have undergone

cross-examination before the plea is tendered. Other instances where a plea may have little value might include cases where every possible avenue of legal

redress to halt the prosecution is availed of by an accused before a plea is ultimately tendered on the eve or morning of trial. Nonetheless, it is undeniable

that throughout the entirety of the jurisprudence in this country a reduction of some sort normally attends a guilty plea.

I am not in this appeal concerned to revisit existing general principles of sentencing, although I accept as correct the contention advanced in the course of

submissions ably presented by Thomas O’Malley B.L., counsel for one of the appellants, that there is a ‘due process requirement in sentencing’ to which

any sentencing court should have regard. This requires that any sentencing court should conduct a systematic analysis of the facts of the case, assess

the gravity of the offence, the point on the spectrum at which the particular offence or offences may lie, the circumstances and character of the offender and

the mitigating factors to be taken into account – all with a view to arriving at a sentence which is both fair and proportionate. This form of approach was

approved by this Court in The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306, when Egan J. also stated as follows at p. 315:-

“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One

should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The

mitigating circumstances should then be looked at and an appropriate reduction made.”

The general approach outlined above was even more emphatically endorsed in the judgment of the Court of Criminal Appeal in Director of Public

Prosecutions v Stephen Kelly [2005] 1 I.L.R.M. 19. That is not to say that every step in the sentencing process has to be particularised in some formalistic

or rigid way by the trial judge but rather that the basis for the sentence imposed should be both apparent and consistent with these principles.

It now becomes necessary to consider what effect the introduction of s. 29 of the Criminal Justice Act, 1999 may have had on the general principles which

have been considered up to this point. As already noted, S. 29 provides:-

“ (1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is

fixed by law, a court, if it considers it appropriate to do so, shall take into account—

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.

(2) To 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.

(3) In this section, “fixed by law”, in relation to a sentence for an offence, means a sentence which a court is required by law to impose on a

person of full capacity who is guilty of the offence.”

Despite the urgings of counsel for the respondent, I do not see section 29 as effecting a substantial repeal of well-established jurisprudence on sentencing

in this jurisdiction. I certainly do not see the subsection as requiring courts to depart from normal sentencing procedures, including granting a reduction for

a timely plea of guilty. If that had been the intention, completely different language would have been used. An expression like “to avoid doubt” would

certainly not have been used. Despite the strong expressions of opinion by Finlay C.J in the cases to which reference has been made, I do not think it was

ever believed that there could not be rare cases in which a maximum sentence might be warranted notwithstanding a plea, albeit that there may have been

some doubt about the position which is now removed by the terms of the subsection in section 29.

The presence in a case of ‘exceptional circumstances’ must now be seen, in the light of s. 29, as enabling a court, notwithstanding the existence of some

mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. That does not mean that the Court is relieved of the obligation to

consider all mitigating factors and give them due weight, but rather that, having done so, the court is not precluded from passing such maximum sentence.

It would however be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those

exceptional circumstances in such a way that would make it absolutely clear why the maximum sentence is warranted when there had been mitigating

factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the

offence in question.

Life Sentence

Legislation provides that, in the case of rape, the maximum sentence which may be imposed is life imprisonment. There are particular problems associated

with the imposition of that form of non-mandatory maximum sentence. In practice, any decision as to the length of time a person sentenced to life

imprisonment actually serves rests with the Executive Branch of Government rather than with the judiciary. However this fact in turn creates difficulty from

the point of view of a sentencing court tasked with the imposition of a proportionate sentence. If ‘life’ does not mean life it can only be seen as

unsatisfactory that a court exercising independent judicial powers is left in a situation of not actually knowing the “tariff” period which will be served by a

person on whom such a sentence is imposed. This problem does not arise in the case of a determinate sentence, a fact which constitutes a strong

incentive for the court to opt for the latter type of sentence.

In the Annual Report of the Parole Board for 2005, Dr. Gordon Holmes, Chairman of the Board, stated in the foreword thereto that “the days of prisoners who

have served 10 or 12 years [ie, of a life sentence] expecting to be released from custody are now over. The sentence they must serve must be a long and

salutary one. The Board must do everything it can to promote public confidence and to ensure that its attitude to the dreadful crime of murder will remain

constant. The position of human life in society must be restored.”

At an earlier point Dr Holmes described as a “fallacy” any public perception that prisoners serving life sentences for murder were in fact serving only eight or

ten years. Whatever the aspirations of the Parole Board, it is certainly clear that the imposition of a life sentence does not necessarily or usually mean

imprisonment for the actual life of the prisoner. Anecdotally the average period of time served on foot of a life sentence appears to be of the order of 13.5

years. Life prisoners can then ordinarily expect release, albeit that such release may be described as temporary release and conditional insofar as the

offender refrains from further offending. In the absence of a statutory Parole Board acting under defined terms of reference and applying settled criteria

whose decisions would be accepted, except for stated reasons, by the Government, any sentence of life imprisonment remains one of uncertain duration. In

imposing sentences in these cases, Carney J clearly saw it as being ‘in ease’ of the applicants that he was imposing life sentences rather than

consecutive determinate sentences, in that the applicants might thereby secure earlier release. It may well be, therefore, and regardless of how odd it may

appear, that an intention of granting some credit to the applicants for their guilty plea and co-operation with the Gardai underpinned to some degree the

particular form of sentence actually selected.

The Parole Board

The Parole Board was established by the Minister for Justice, Equality and Law Reform in 2001 to review the cases of prisoners with longer term sentences

and to provide advice in relation to the administration of those sentences. Before the Board can review the case of any prisoner, his or her case must first

be referred to it by the Minister for Justice, Equality and Law Reform. Generally, the cases of prisoners sentenced to eight years or more, but less than

fourteen years, are reviewed at the half sentence stage. The cases of prisoners sentenced to fourteen years or more, including life are reviewed after seven

years have been served. The review process, which can take around six months, involves a number of stages. The first is that of referral by the Minister,

following which the Secretariat of the Parole Board writes to the particular prisoner whose case is being referred to the Board and invites him to participate

in the review process. A dossier is then assembled from relevant agencies, including the Probation and Welfare Service, the Governor, the local Prison

Review Committee and An Garda Síochána. Then the prisoner is circulated with copies of reports compiled in his individual case. He is also allowed to

attend an informal interview with members of the Board for the purpose of making submissions. Following such interview, a written report is prepared and a

copy of this is given to the prisoner. There can be a number of reviews. Ultimately the Board makes its own recommendations to the Minister for Justice,

Equality and Law Reform. Its recommendations may include a structured programme advising that the prisoner should participate in education or work

training or work with particular therapeutic services. It may also recommend short periods of temporary release leading to longer periods of temporary

release.

The Board’s role is advisory only and the Minister is not obliged to accept any recommendation made by it. The Minister’s decision is conveyed to the

prisoner, in writing, as soon as practicable after he receives the Board’s recommendations.

Implications of any sentence of life imprisonment

It will at once be apparent in the context of a sentence of life imprisonment that a considerable degree of uncertainty arises in relation to the length of time

spent in custody by the sentenced offender.

As Carney J. pointed out when imposing sentence in the present cases, the imposition of determinate consecutive sentences would virtually preclude any

role for the Parole Board, given that seven years of any sentence must first be served before it can intervene. However, the question must be addressed as

to whether a sentencing court can really concern itself with such considerations, other than in the most general way. As Mr. O’ Malley points out in his

Sentencing Law and Practice, 2nd Ed., (Thompson Roundhall) at p.135:-

“For obvious reasons, sentencing judges should not take account of the possibility of remission or early release when selecting sentence.

Proportionality must be the guiding standard in every case, and a judge should proceed on the basis that the offender will serve whatever

sentence is imposed. An offender may, in fact, serve his full sentence if he loses remission and does not, for some reason, qualify for early

release. Particular care must be taken with regard to long sentences. During the currency of the sentence, legal or policy changes may well

result in prisoners serving longer or shorter terms than might have been predicted at the outset. Parole arrangements, for example, may

undergo change. At the time of writing Ireland has an interim parole board established in 2001 which advises the Minister for Justice, Equality

and Law Reform on the administration of long sentences. However, this Board has no statutory basis and, even if it had, a future government

might well decide to abolish it or change its terms of reference or, for that matter, introduce more (or less) generous parole arrangements. In

any event the likely date of a person’s release or eligibility for consideration for parole cannot be predicted with any confidence when

sentence is being imposed.”

To the extent therefore that the trial judge may have considered the workings of the Parole Board as something ‘in ease’ of the applicants so as to justify

the imposition of a life sentence which, paradoxically, would almost certainly result in one or both applicants obtaining early release, I would be of the view

that such an approach would be an incorrect way of giving credit for a guilty plea. There must inevitably be a considerable element of uncertainty attendant

upon such an approach in the sense that no one can predict future legislative or policy changes. There 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 co-

operation by an accused person. An offender with no previous convictions may well feel that the value of any plea or other co-operation will vanish in 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 concurrent but determinate 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.

The Present Appeals

Counsel for both applicants summarised the factors, which are common to both cases, which they argue would ordinarily demand that some reduction of

sentence be given in line with the jurisdiction established by cases such as The People (DPP) v Tiernan and enumerated the following considerations to

which the court would be obliged to have regard :-

(a) The guilty plea which spared the victims the trauma of enduring a contested trial

(b) The guilty plea was evidence of genuine remorse

(c) The guilty plea was of extra value as it was indicated at an early stage

(d) In both cases there had been co-operation with the police

(e) The guilty plea had saved court time and expense and had thereby facilitated the efficient administration of criminal work in the courts

(f) Other cases could get heard by virtue of the guilty plea.

They argued that concurrent determinate sentences would have met the exigencies of these cases and would have permitted a transparent application of

the principle that the various mitigating factors be seen to have effected some worthwhile reduction in the sentences imposed. I am, however, content to

adopt and follow the reasoning of the Court of Criminal Appeal in the case of the People (DPP) v D, the second of these appeals, notably insofar as the

interaction between s. 29 of the Act of 1999 and the particular sentence is concerned. In that regard McCracken J stated at p 6:-

“While the learned trial judge in the present case did not expressly refer to that section, nevertheless there could be no error in principle if he

was satisfied there were exceptional circumstances which would warrant a maximum sentence.”

The court went on to consider the elements of the offences which the court felt could be considered by the trial judge to amount to ‘exceptional

circumstances’. It is worth reciting the summary set out by McCracken J when he referred at p. 6 to:-

“….a combination of the breadth of the outrages, the fact that the rape and sexual assaults were systematic, the fact that four daughters

were involved, the fact that the offences took place over a period of twenty years and the impact on the victims. This is a combination of

factors which he was certainly entitled to regard as exceptional by any standards. Accordingly, this court considers that he was entitled as a

matter of principle to impose life sentences.”

In both of these cases, I am satisfied that the horrific nature of the rapes and the prolonged period during which the ‘campaign’ of offences took place,

involving as they did multiple victims of tender years, were such as to justify categorisation in the very worst category, particularly having regard to the fact

that the victims were daughters of the offenders and, in the case of the first applicant, his nieces also. It is impossible to conceive of a greater breach of

parental responsibility than occurred in these cases. Quite clearly, the maximum sentence should be reserved for the worst variant of the offence in

question. I am satisfied that there were those exceptional circumstances common to both cases such as to permit the imposition of life sentences despite

the mitigating circumstance of the plea of guilty present in both.

I would therefore dismiss the appeals.