Court of Appeal dismisses appeal against sentence for indecent assault, upholding eight-year total with four years suspended.

THE COURT OF APPEAL

[103/14]

The President

Peart J.

Irvine J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MICHAEL BYRNE

APPELLANT

JUDGMENT of the COURT (Ex tempore) delivered by The President on the 19th day of December 2014

1. The appellant herein is Mr. Michael Byrne and he is now 77 years of age, having been born on 25th May 1937.

2. He pleaded guilty on his trial date in September 2013 to four counts on the indictment as sample counts on the understanding that

the remaining counts would be taken into consideration. The indictment contained 15 counts of indecent assault perpetrated against

his victim between January 1975 and March 1978.

3. The applicant was sentenced on 10th April 2014 to two years imprisonment on each of the counts with the other counts taken into

account to two years imprisonment i.e. the maximum sentence of imprisonment on those four counts, totalling eight years

imprisonment. The learned trial judge then suspended the last or the latter four years of that, leaving a custodial sentence of four

years and a suspended sentence of a further four years.

4. The victim in this case was born in March 1963. He was aged between 11 years and 15 years at the time when these crimes were

committed on him. The appellant was aged in his late 30s and early 40s at the time. The appellant was a secondary school teacher at

the time, a matter of real significance in this case, which gave him a position of esteem and responsibility in his own community and it

gave him a position of authority and even control over his young victim.

5. The offending occurred in a number of different venues over the period of years that I have mentioned. It began with what we now

know is calculated grooming behaviour and progressed, getting gradually more intrusive and gradually more offensive. First, there was

touching or groping and that developed into circumstances where the appellant masturbated the boy. This happened on a regular and

frequent basis over the period of years. It involved, not just abuse of power and authority by the appellant, but also deceit. The boy

had had a medical condition for which he had been treated and the appellant exploited this for his nefarious ends by saying he needed

to get sperm samples in order to check the boy’s condition. He pursued this policy over a long period of time, giving credence to the

deceit by actually collecting samples. It got worse because he told the boy that the quality of the sample would be better if the boy

was more aroused, so there was a degree of planning, calculation and exploitation in the manner in which he behaved.

6. These features that I have mentioned are recognised in all authorities as being indicative of serious, aggravating features of sexual

crimes, namely, dominant position, abuse of trust, length of time during which abuse happened and active deceit perpetrated over

years. The trial judge expressed the essence of this when he said:

“In respect of the sexual abuse, Mr. Byrne was a teacher, as I have already outlined, to his esteem in the local

community. He was in a position of trust, respect, confidence, he was in a dominant position by reason of his position and

also he was supervising children in respect of the band and any parent, including the children, were entitled to feel safe if

they were in his company. The abuse was cold, calculated and premeditated and I can only describe the conduct of Mr.

Byrne as acting as a predator in respect of the boy. The abuse was systematic abuse and I describe the abuse as

revolting, disgusting, horrific, embarrassing and humiliating.”

and he went on in similar vein.

7. The trial judge determined that the appropriate sentence, accordingly, was two years in respect of each of four sample counts,

taking the others into account, and then he discounted that whole thing by four years. The appellant proposes, through Mr. Gageby,

his Counsel, first of all he says this was not one of the worst cases in regard to the acts themselves. Therefore, he proposes that

because there could be worse cases, the proper approach to take is to locate the seriousness, the gravity of the offence at a point

lower on the scale, so to speak.

8. The first point about that is that in an offence of which the maximum, for reasons that we need not concern ourselves with, the

maximum penalty was two years. The scale is necessarily a narrow one. Having said that, it is the view of this Court that the relevant

features of the case, the relevant features of the crime must be taken into account. There is clear authority to say that the

approach the sentencing Court, and indeed an Appeal Court takes, is to look at the crime as committed by the accused to decide

whereabouts that is to be located on the scale of gravity or heinousness. The crime in all its circumstances, and those circumstances

include the ones that I have mentioned, the circumstances of the crime also include the impact on the victim. In this case, the Court

below had a most powerful exposition of the impact on the victim in this case and how, although making a very considerable success

in his life, he had found himself in his mid 40s having a major crisis. He explained all that to the Court and, as it would do to any

Court, it impressed the learned Circuit judge who was dealing with the matter. It is powerful and poignant and impressive. That was

part of the circumstances that had to be taken into account and the Circuit judge referred to them.

9. In considering the circumstances taken into account by the trial judge, there was an unfortunate feature in that it was stated, as

it had been in evidence, that Mr. Byrne, the accused, had previous convictions for indecent assault. Those are not precisely the

words that were used by the Garda who was the investigating Garda giving evidence, but it seems to the Court that that was the

essential impact. That was not corrected by anybody, but it turns out not to have been correct, in that Mr. Byrne had been

convicted at the relevant time i.e. in October 1971/1972 of acts of gross indecency with another man which might sound just as bad,

but it is not, because that was homosexual behaviour which did not involve assault or want of consent or anything of that kind. So

there was that feature of the case.

10. The criticism of the judgment consists, essentially, of three issues. First of all, Mr. Gageby contends that this is not the worst of

the crimes and therefore that there should have been an allowance made so the judge should have started at a lower point in the

scale of zero to two years and then he should have applied some mitigation to that. This Court rejects that submission on the basis

that in all the circumstances, taken properly into account in this case, whatever might be said about the specific and narrow point

made by Mr. Gageby about the individual acts, and without deciding that point, taken as a whole and in context of the features that I

have mentioned, it was legitimately and properly viewed by the judge as being at the top of the scale.

11. There is the question of the lapse of time from the time of the offence up to date and the fact that the accused has not come

under any adverse notice, has not been convicted of anything, and more than that, has given no reason to suppose that there was

anything other than a blameless existence and what is to be done with that. That is a matter of discussion in cases of this kind. Yes,

it is relevant. It is not expressly or explicitly stated in the judgment of the learned Circuit judge but it would seem legitimately

inferable that it must have been in his mind, but he does not specifically refer to it.

12. It is not quite so simple a matter as it might appear because it is a feature of this kind of offence that, by its nature, casts over

its victims a cloud of guilt and unease, such that it is very often suppressed so that the actual revelation and disclosure of the case

and reporting of the case does not come about until very many years later. There is a question of the logic and the justice of allowing

an accused person who has been guilty of such offences to claim the benefit of the impact of the very offences on the victims. But

this Court does not have to decide that point because it is satisfied that in all the circumstances of the case, the serious aggravating

features were sufficient in this case to warrant the placing of the case at the higher end, at the top end of the narrow range that is

available in the cases.

13. What the judge did in the end was to total the various counts to come to eight years and then to make an allowance for various

mitigating features. Obviously, they included the guilty plea, in fairness, which is always of value, significant difference to people and

it is not to be diminished and nothing that this Court says is intended to diminish that. The plea of guilty, even though it came

somewhat late in the day, it is not as early as it might have come, it is still of significant value.

14. It is fair to say that the learned trial judge in this case placed a good deal of reliance on the fact in mitigation of the pleas of

guilty, which he said meant if the case went to trial, the victim would have been subjected to cross-examination; he would have to

recall the horrific details of the assaults. That would have been extremely stressful for him. He took account of the accused’s

personal circumstances, his family circumstances, the illness of his wife, and in the course of a lengthy analysis, he arrived at his

conclusion. Ultimately, having reached the total of eight years imprisonment, the learned trial judge applied a generous reduction of a

full half of that period of time. That seems to this Court to represent an allowance that adequately covers all the points that might be

made in mitigation. It is also the case that if one took a different approach to the case, and if one were to accept the proposition

that the cases, as they stood on their own, were to be located at some lower point on the scale, in circumstances where, because of

the repetition of the offences over a period of years, it would have been perfectly proper, as the judge did, to take consecutive

sentences into account, that it seems to the Court that the ultimate result would not have been different from the outcome as

arrived at by the learned trial judge by the mode or method that he adopted. So by adding them up at two years and taking half of

that off, the result, had he adopted a different approach, would have been, in the view of this Court, precisely the same thing.

15. In the circumstances, the Court is not satisfied that there was any error in principle and the Court rejects the appeal as to the

severity of sentence.

16. The Court’s view is that although the previous convictions were described as indecent assault and not gross indecency, that was

unfortunate but is not such as to affect this Court’s view as to the propriety of the sentence overall or that it can be regarded, in

the context of the lengthy judgment delivered by the learned Circuit judge, as having affected the sentence to a material degree that

would affect the judgment of this Court.

Approved: Ryan P.