Court increases sentence by one year due to anomalous maximums and failure to impose consecutive sentences.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 43

[23CJA/13]

The President

Sheehan J.

Edwards J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JAMES MAHER

RESPONDENT

JUDGMENT (Ex tempore) of the Court delivered by the President on 10th February 2015

1. The Court has found that the Director’s application must succeed. That is, to quote the McKenna judgment that is cited in the

judgment here, “unless there was some element of consecutive sentencing, the overall sentence was going to be clearly inadequate

and unjustifiable”. So as not to prolong the misery for Mr. Maher or anybody else in Court, the Court is going to increase the sentence

by one year and I am going to explain the reason for that.

2. The first point is that in somewhat anomalous circumstances, a wholly unintended and unexpected result has come about whereby

the maximum sentence for the offence of indecent assault on a male at a particular period i.e. the relevant period in this case, is, in

the Court’s judgment, two years and not ten years. That is the starting point of the maximum sentence.

3. The second point is that Mr. Sexton, Counsel for Mr. Maher, is entirely correct in saying that the Court exercises its undoubted

discretion to impose consecutive sentences. The Court exercises that discretion sparingly.

4. There were circumstances in this case which were outlined in the judgment as to why the Court held that the decision of the

learned sentencing judge was in error in principle in failing to impose consecutive sentences. The Court now has a situation where it

must make its decision as of today.

5. There are the mitigating features that were present in the Court below. The Court’s decision that the sentences were unduly

lenient is not based on a rejection of the mitigating circumstances but on a view that the sentencing Court failed to take into

account the aggravating circumstances of the crimes themselves. Now the situation is that the Court must sentence as of today’s

date and must bear in mind the maximum sentence as the Court as found.

6. There is also the element that the appellant has served the sentence that was originally imposed on him and must now face a

return to imprisonment and he has had that hanging over him during the time from the service by the Director of the notice of

challenge invoking the jurisdiction of the Court under the relevant section. That is very difficult and the Court is conscious of the

anxiety that is attendant on all those circumstances. Nevertheless, the Court has its duty to do and it must do so.

7. In the circumstances, the Court would have imposed a consecutive sentence of two years but taking account of the elements that

the Court has mentioned will reduce that to one year, so there will be an additional sentence of one year.