Court imposes 17-year sentence with 4-year suspended term for false imprisonment involving abduction of a young girl.

Neutral Citation: [2015] IECC 4

THE CIRCUIT COURT

MIDLAND CIRCUIT

Portlaoise

County of Laois

Record No. LSDP0019/2015

Director of Public Prosecutions

Prosecutor

-v-

Michael Martin

Defendant

Judgment by His Honour Judge Keenan Johnson given on 5th November 2015

The accused has pleaded guilty to the offence of false imprisonment contrary to section 15 of the Non-Fatal Offences Against the

Person Act 1997. The offence carries a maximum sentence of up to life imprisonment.

Background

On 4th March 2015 at around 10:45am, the accused, who was driving a stolen Nissan X-Trail jeep bearing registration number

04KK2649, approached Alana O’Brien, while she was playing at a fort near the motorway bridge at Cullahill, Co. Laois which was

adjacent to her home. Alana had been playing with her brother Kevin and he went back to the house to go to the bathroom. It

appears that at the same time Kevin's twin brother Conor came out and a few seconds after that, the accused pulled up in the jeep

and asked Alana for directions. Alana gave the directions and at this the accused asked Alana to come closer to the jeep. Alana told

the accused she had to go and he assured her not to be worried that he wouldn't do anything to her. Alana again refused to go near

the jeep. At this stage, the accused stepped out of the jeep and grabbed Alana by her waist and put her feet first into the jeep

through the driver's door, depositing her on the front passenger seat. All this time, Alana was kicking at the driver's seat and trying to

get out of the jeep. While this was going on, Conor, who had come to her assistance, was punching the accused. After the accused

had put Alana into the jeep he jumped into the driver's seat and attempted to drive away with Alana. Conor continued to tackle the

accused and to distract him. He was punching at the accused as he got into the driver's seat. Conor clung to the driver's door and

continued to punch the accused while he attempted to move the vehicle. He was literally dangling from the jeep as the accused

attempted to leave with Alana. Conor's actions distracted the accused sufficiently to enable Alana to make her escape. After this,

the accused fled the scene in the jeep. The children, who were extremely frightened, ran back to their house and told their father

what had happened. Mr O'Brien endeavoured to follow the accused, but lost track of him. He then reported the matter to the Gardai,

who took immediate steps to try and trace the accused. The accused was apprehended the following day. The detection and

apprehension of the accused was a great piece of detective work, which was aided by the keen observations of Alana, Conor and

Kevin. They were able to describe the accused, the vehicle he was driving, and also to give details of part of the registration plate. I

also note with satisfaction that the Garda investigation into this matter was considerably helped by the co-operation and assistance

offered to them by the local community.

The entire episode was extremely frightening for the children. Alana was fortunate that her brother Conor was present when the

abduction took place. Conor’s natural instinct to protect his sister swung into action once he saw the danger she was in. He was

extremely brave and showed great presence of mind, maturity beyond his years and leadership. Likewise, Alana displayed great

survival instincts when she escaped from the jeep. Kevin deserves great credit for having the maturity to make a mental note of part

of the registration number on the jeep. This was a vital piece of information which assisted the Gardai in ultimately apprehending the

accused. All three children are a credit to their family. Their father also deserves great credit for the speed with which he reported

the matter to the Gardai. I note that at this time, the O'Brien family were going through a difficult period as their father had been

diagnosed on the previous Friday with a very serious illness. Nevertheless, despite this, Mr. O Brien, employing his natural protective

instincts, acted immediately in trying to apprehend the accused. In this he displayed great courage and wisdom. I understand that

the family has now returned to California and I hope that Mr O'Brien's recovery is continuing and will be complete.

Mr O'Brien's victim impact statement indicates that, by virtue of his offending, the accused stole a significant part of Alana's

innocence. Since the offence, Alana has lost confidence. Mr O'Brien states that the lives of the family were permanently changed as

a consequence of the offence. Prior to the offence, the victim impact statement discloses that the O'Brien's were a happy confident

family. Mr O'Brien cites as an example, the fact that he could watch television while the children played in the front and back garden.

He states that now Alana won’t go anywhere. He says that he doesn't like to see his children being fearful of every day ordinary

things. I understand that since the victim impact statement was made, the O'Brien family have returned to live in California. The

shocking irony of this case is the fact that Ireland would be expected to provide a safe environment for children. Thankfully cases of

this nature are uncommon in Ireland when compared with other jurisdictions. One can only imagine the family's sense of shock and

betrayal when the accused abducted Alana. I would like to wish the O'Brien family well for the future and hope that, with the passage

of time, they can put this matter behind them. It would seem that they are a very close and united family and this should be a source

of strength to them in dealing with, and overcoming, the adverse effects of the accused's offending on the family.

I have already said that the Garda investigation into this matter deserves commendation. I think it is worth reflecting on the

enormous amount of resources that went into the investigation at very short notice. In investigations of this type of crime “time is of

the essence”. I'm advised that the Gardai deployed huge resources and this, combined with the co-operation of the public and the

detailed information which the children were able to provide, led to the apprehension of the accused within a little over 24 hours. This

was a remarkable achievement and deserves to be acknowledged.

Following his arrest on the day following the abduction, the accused underwent eight hours of interview. At no stage during these

interviews did he make any admission of his involvement in the abduction. He co-operated with the Gardai in that he confirmed that

he had stolen the jeep. He also agreed to participate in an identification parade during which he was identified by Conor and Alana.. It

was only after the Garda forensic investigation found fibres from Alana's clothes in the jeep, that the accused admitted involvement in

the abduction.

The offence to which the accused has pleaded guilty is extremely serious and this is reflected in the statutory sanction which

provides for a sentence of up to life imprisonment. The fact that the offence involved the abduction of a child is a further aggravating

factor. This offence is an attack on family life and the obligation of society to protect children and keep them safe. In committing this

offence the accused has breached and betrayed, in a most serious and fundamental way, the duty of care he owes to other members

of society and, in particular, children.

In determining sentence in this case, the court must impose a sanction that reflects the gravity of the offence and the culpability of

the accused. Other factors such as rehabilitation must also be considered.

Factors to be taken into account

In considering the appropriate sentence which I am bound to impose, I have noted the evidence as outlined by the state witnesses

and by Mr Fennelly, counsel for the state, and to what Ms. Ní Raifeartaigh, counsel has said on behalf of the accused. I have also

considered the principles pronounced by the Court of Appeal, which a judge must consider prior to passing sentence and which forms

part of our jurisprudence.

The principles to be considered are:

1. The sentence must be proportionate to the crime, within the context of the maximum sentence provided for by

statute.

2. I must take into account any aggravating factors, mitigating factors and the circumstances of the accused.

3. I must consider whether the accused has shown remorse and displayed appreciation for his wrongdoing.

4. I must look at the accused’s record and the likelihood of him re-offending.

5. I must consider the accused's co-operation with the Gardai throughout the investigation of the offence.

6. I must consider the effect of the consequences of the offence on society and the O'Brien family.

I also have the benefit of a forensic psychological report which I must take into account.

I also have the victim impact statement of Mr O'Brien which I have two take into account.

Aggravating factors

1. The nature of this offence is particularly disturbing as it involved the abduction of a young girl while she was out playing with her

brothers. Children are entitled to feel safe when playing within the vicinity of their family home. The abduction involved the use of

force, as the accused lifted Alana off her feet and threw her into the jeep. In addition to this, the accused moved the jeep with Alana

in it, while Conor was dangling from the driver's door. Even though the jeep was travelling at a low speed this was extremely

dangerous and put Conor in danger. Likewise, in escaping from the jeep, Alana was put in serious danger, given that the jeep was

moving as she made her escape. The effort to move the jeep when Alana was in it was clearly an attempt on the part of the accused

to get away from the scene and continue the false imprisonment of Alana. It is fortunate that neither Alana nor Conor sustained

serious injury when Alana alighted from the jeep and Conor let go of the jeep.

2. The accused’s failure to co-operate with the Garda investigation is also an aggravating factor. In a total of eight hours of

interviews with the Gardai, the accused continued to deny committing the offence. It was only after he was presented with the

incontrovertible forensic evidence, that he admitted his involvement. Until then he continued to deny involvement and following the

identification parade, he asserted that he had never seen Alana or Conor before. This, along with his persistent denials of

involvement, was clearly untrue.

3. The accused’s previous record is very extensive. He has 92 previous convictions going back to 1999. These include a conviction for

a sexual assault in 2000 and abduction of a child in 2003 and threatening to kill or cause serious bodily harm in 2010. He also has

numerous convictions for burglary, theft, criminal damage, unauthorised taking of a car, robbery and some road traffic matters. His

appalling criminal record is clearly an aggravating factor that I must take into account. Of particular concern in respect of the

accused’s record, is the offence of sexual assault committed in 1999 and which attracted a jail sentence of 12 months. According to

the forensic psychological report on page 10, the victim of the sexual assault was a neighbour of the accused, who was 10 or 11

years old when the offence occurred. The accused was almost 20 years old when this offence occurred. The offence of child

abduction which occurred in 2004 attracted a sentence of four years with two years suspended. That particular offence involved a

15-year-old girl with whom the accused had established a relationship. It appears that there was no force used on the victim in that

case and that the accused returned to the jurisdiction voluntarily, with the victim, when requested to do so by the Gardai.

Accordingly that offence, while serious, does not fall into the upper level of seriousness of the current the offence.

4. The effect of the offending on the O'Brien family as reflected in the victim impact statement has to be taken into account. As a

direct consequence of the accused’s offending, the family has lost confidence and is fearful.

5. While I don't have a risk assessment in relation to the accused, the detailed forensic psychological report which has been

furnished, gives me great cause for concern. I'm satisfied from having looked at the issues of concern outlined on page 25 of the

report, that the accused, cannot be, but at high risk of reoffending over the next 12 months and indeed into the future.

6. A further aggravating factor is the fact that the accused was on bail, for robbery charges, before Kilkenny court, when he

committed the offence. I understand that the robbery charge before that court is going to trial and that no plea has yet been

entered by the accused in respect of same.

Mitigating factors

1. The early plea of guilt saved the family, the trauma of having to give evidence. This is significant in this case, as the giving of

evidence by the O'Brien children, could have further exacerbated the negative effects of the accused's offending on them. The plea

also saved the state the time, cost and resources that a jury trial would have entailed.

2. The accused has tendered to the court a letter of apology. In it, he expresses remorse for his wrongdoing. He says “I'm very sorry

to the parents of this little girl it would and will never happen again please tell them I am very sorry”. He also says that since his

incarceration he has been assaulted in prison and he anticipates that, following the adverse publicity attaching to this case, he will be

subject to further assaults while in prison. I think it is generally acknowledged that prisoners convicted of the type of offence to

which the accused has pleaded guilty, are at greater risk of assault while in prison. This is a factor that I must bear in mind when

considering sentence. In this respect I would urge the prison authorities to put in place whatever protections they can, to prevent

the accused from being the subject of further assault. Likewise I would ask the media to exercise restraint in the reporting of this

matter and in particular not to use inflammatory language when describing the accused.

3. The forensic psychological report prepared on the accused for this sentencing hearing makes for disturbing reading. The

Constitution says that all children are born equally, however a reading of the forensic psychological report in this case clearly

illustrates that some children are born more equal than others. The accused’s background was both chaotic and unhappy. He suffered

a number of significant bereavements throughout his life including the death of his first girlfriend by suicide, while she was pregnant

with their child. She shot herself in the presence of the accused. Shortly after this his best friend committed suicide and in 2002 his

daughter Leilah passed away due to a cot death. On top of this, at the age of 12 he witnessed the death of a playmate, who died

when he fell into a septic tank. As a consequence of all these tragedies, the accused has been diagnosed as suffering from Chronic

Post-Traumatic Stress Disorder. In addition to this, he continues to experience active suicidal ideation. On the General Ability Index

he was assessed as having an extremely low range of cognitive functioning and his abilities are exceeded by 99.5% of his peers. He

was expelled from second level school after only six months and accordingly left full-time education at around 14 years of age. He

worked for six years with a horse trainer doing menial jobs. He also worked for a year driving a digger. These are the only

employments that he has ever held. The rest of his life has been spent living on social welfare and serving sentences in jail. In the

light of his mental health difficulties, the accused has difficulty in empathising with the victims of his crimes. He also has difficulty in

controlling his emotions and, in particular, his anger. The forensic psychological report on page 12 makes reference to a letter from

the accused’s general practitioner Dr Clarke, dated the 16th February 1996, which refers to the accused as having been categorised

with mild mental handicap with low frustration tolerance and a strong tendency to become physically aggressive.

4. The accused has serious addiction issues and accepts that much of his criminality stems from his abuse of alcohol. His time in

prison has allowed him to become sober and this has been clearly beneficial for his disposition, in that he is not as prone to

aggression, when he is not drinking. Nevertheless, it is clear, as was demonstrated during the initial sentencing hearing, he is quick to

anger and quick to express frustration.

5. I have to take into account, the fact that the abduction lasted for a short period of time and did not involve the use of serious

violence. This is a mitigating factor which I must take into account.

6. I must also take into account that two weeks prior to this offence, the accused presented himself to the relevant psychiatric

services looking assistance. This would indicate a recognition on the part of the accused, that he was in need of help and support.

7. I am also conscious of the fact that the accused is the father to 2 children. His son Calvin was born in 2007 and he has not seen

him since 2010. His daughter was born in February of this year and was taken into care immediately thereafter, due to the fact that

her mother was a drug addict and the accused, because of his own problems, was not in a position to look after the child. This lack of

contact with his children is a source of stress and hurt to the accused. Allied to this, the accused has no contact with his siblings or

his parents. Accordingly he is completely on his own without any form of family support.

General

In her submissions, Ms. Ní Raifeartaigh, counsel for the accused, quite rightly pointed out that he was a person who had “fallen

through the cracks”. It is a sad fact of life, that in our society, there are many people like the accused, who have fallen through the

cracks and have not been provided with the supports and assistance, which would have helped them in their rehabilitation. In

fairness, state agencies such as the HSE and the probation services, do fantastic work in the area of treatment and rehabilitation of

offenders. It could be argued that, if more resources were diverted from the penal side of the criminal justice system towards the

probation side, the rehabilitation of offenders might be more effective. This is a debate for another day, but something worthy of

serious consideration by the powers that be. Resources focused on rehabilitation rather than punishment could probably provide

society with better outcomes.

The contents of the forensic psychological report are a source of great concern. It is clear that the accused is prone to unpredictable

behaviour and this could be an issue in the future. In determining sentence, a court cannot punish an accused for something it

suspects might happen in the future. The court can only punish by way sentence the accused for the offence that the court is

dealing with. Nevertheless, it would be remiss of me not to make reference to my serious concerns, that without appropriate support

and treatment, the accused is likely, because of his underlying problems, to reoffend on being released from prison.

Accordingly I believe it is essential, that before the accused has completed the term of imprisonment I am about to impose, a

structure and plan is put in place to manage his release, so as to ensure that not only are his best interests served, but also that

society is protected from any repeat of this criminal behaviour. This is particularly important, given that the victims of the offence

before the court were children and society has an overwhelming and overriding duty to do all it can to protect children. Indeed I

would also go as far as to say, that the prison authorities, should have the accused professionally assessed prior to his release date,

so as to ensure that he doesn't pose a threat on release to himself or others.

This has been a difficult case to determine sentence in, because of the complexities of the accused’s background. What he did was a

terrible thing. However I am not sure he fully appreciates that. If I had the option, I would impose a life sentence, not so much to

punish the accused, but rather to protect society. However the jurisprudence and the decisions of the Appeal Courts do not permit

me to impose a life sentence. The Appeal Courts have indicated, that an accused is entitled to a sentence for a definite period.

Nevertheless, by virtue of the sentence I am about to impose, the accused is going to pay a high price for his criminality. The

sentence reflects the gravity of the offence and the harm done by it. The sentence cannot, and does not purport to, offer protection

to society from the accused. This can only be achieved, by the relevant statutory agencies assessing the accused's potential risk,

prior to his release. If the risk is substantial and stems from his mental condition, then other options are open to ensure he is not

allowed to become a danger to society. From the forensic psychological report and the submissions made by Ms. Ní Raifeartaigh, that

the accused has completed courses in prison, it would seem to me that prison has a rehabilitative role to play in respect of the

accused. I think it is fair to say, that given the accused’s chaotic life style, prison provided him with the stability and consistency he

needs in order to deal with his many complex emotional and psychological issues. It is interesting to note on page 10 of the forensic

psychological report, that the accused has spent 9 to 10 years of life in prison. He explains that following his release from prison he

finds it difficult to manage in the community. He states that he was not given access to supports he needed after he was released in

order to remain offence free. It would seem to me that the accused has become institutionalised and is better able to manage himself

in the regimented environment that prison provides.

Sentence

Turning to the question of sentencing in this matter, I'm satisfied that as the offence involved the abduction of the young girl, it is at

the upper scale of offending and accordingly warrants a custodial sentence of 20 years imprisonment, before all aggravating and

mitigating factors are taken into account. In summary, the aggravating factors are the fact that the offence involved the abduction

of a young girl; happened in the vicinity of the family home; involved the use of force; was committed by somebody with a very

extensive record, including previous offences for abduction and sexual assault; and there was an absence of full co-operation with

the Gardai . In summary, the mitigating factors are the early plea of guilt; the accused’s very difficult family background; the

accused’s mental handicap; his expression of remorse and his medical issues including depression and Post-Traumatic Stress Disorder.

Taking all of these factors into account, I am imposing a sentence of 17 years imprisonment with the final four years suspended for a

period of five years on the following conditions:

A. That the accused enter into a bond of 500 Euro to keep the peace and be of good behaviour for a period of five years.

B. That the accused submit himself for supervision by the probation service for a period of five years post-release and

that he follow all directions given to him by the probation service and, in particular, all directions relating to dealing with

his addiction issues and mental health issues.

C. That the accused agrees to follow all directions given to him by the relevant mental health services and that he

cooperate with the relevant mental health services for a minimum of five years.

D. That, prior to his release from prison, the accused engage in the ‘Building Better Lives’ programme at Arbour Hill prison

or its equivalent, and any other courses, which will assist in his smooth release into the community.

It is absolutely clear to me, that while in prison, the accused should be afforded counselling and treatment for his addiction problems

and his Post-Traumatic Stress diagnosis. I would again reiterate that the prison authorities should have the accused professionally

assessed prior to his release date, so as to ensure that he doesn't pose a threat on release to himself or to others.