Court of Appeal dismisses appeal against sentence for sexual assault, upholding judge's proportionality assessment.

THE COURT OF APPEAL

Mahon J.

Edwards J.

Hedigan J.

196/CCA/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

P.C.

Appellant

JUDGMENT of the Court delivered on the 7th day of December 2017 by

Mr. Justice Hedigan

Introduction

1. This is an appeal against severity of sentence. On the 25th March, 2011, the appellant was convicted in the Central Criminal Court

of 60 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended and 14 counts of rape

contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended. There had

been a previous trial which resulted in acquittals, and disagreements in relation to these 74 counts. On the 23rd May, 2011, the

sentencing court heard the facts. On the 26th May, 2011, the appellant was sentenced to 10 years on each of the sexual assault

counts and 15 years on each of the rape counts. The sentences were to run concurrently. The final three years were suspended on

condition that the appellant enter a bond of €1,000 to keep the peace and be of good behaviour for a period of three years and that

he have no contact with the victim in perpetuity. The sentence was backdated to the 25th March, 2011.

2. This Court allowed an application to extend time to appeal the severity of sentence but refused the application in relation to the

appellant’s appeal against conviction.

The circumstances of the offences

3. The appellant is the victim’s father. The offences took place in the family home when she was aged 9 to 14. Over the years, the

assaults progressed from once or twice a week to everyday. It started with touching and digital penetration and progressed to rape.

If she refused she would not be allowed out to see her friends. When she threatened to tell her mother the appellant told her that her

mother would hate her.

4. The victim eventually wrote a note saying she would leave home and her mother should ask her father why. Her mother found the

note and asked her what she meant. The victim then told her mother what had been happening.

5. The victim’s mother confronted the appellant who initially denied the allegations. However, having asked one of their other children

to leave the room the appellant stated he would see a doctor to find out what was wrong with him so that he could explain it. The

victim’s mother insisted that the appellant leave the house.

6. The matter was reported to the Gardaiì and the appellant was interviewed. He occasionally made denials but the majority of his answers were that if his

daughter said that, then it must be true. At trial, the appellant gave evidence to say that none of the allegations were true.

7. A victim impact statement was handed in and read before the Court. It detailed the horror of the abuse, including how the victim

felt alone and cut off without freedom or privacy. It affected her studies and her relationships. She described the distress of receiving

messages from the appellant during the first trial. She also described being put “through hell” starting with the abuse and then going

through the two trials.

The appellant’s personal circumstances

8. The appellant was 71 years old at the time of sentencing. He had one very minor previous conviction for a road traffic matter. He

was involved with sports and training over the years. The probation report noted that he was assessed as being low risk for long-term

sexual reoffending and moderate for non-sexual violent reoffending.

Sentencing

9. The judge found that the offences merited a sentence of 15 years imprisonment. He sentenced the appellant to 10 years on each

of the sexual assault counts and 15 years on each of the rape counts. The sentences were to run concurrently.

10. The aggravating factors were the breach of trust involved, the victim being the appellant's daughter. The location of the offences

within the victim's home where she was entitled to security and sanctuary. The age of the victim. The effect on the victim as

disclosed by the victim impact statement. The frequency of the offences. The period over which they extended. The predatory

nature of the offences. The absence of any genuine remorse. The attempts to sabotage the trial process by pre-trial communications

with the victim and her mother.

11. The mitigating factors were his lack of previous convictions and his lifetime devotion to hard work and sporting activities. His age

was noted and that it is undesirable that anyone should die in prison. Taking these factors into account the judge suspended the final

three years of the sentence.

Appellant’s submissions

12. The appellant’s grounds of appeal against severity of sentence can be summarised into three categories.

13. First, the trial judge did not observe the principle of proportionality in sentencing. It is submitted that the absence of a structure

affording the appellant an opportunity for rehabilitation, and the fact that the appellant faces spending a large proportion of his

remaining years in prison, amount to a failure to observe the principle of proportionality.

14. Second, the trial judge did not adequately take into consideration the appellant’s advanced age at the time of sentencing and the

fact that he would be over 80 years old upon release and therefore would be in a vulnerable position at the time of his release. The

appellant referred to O’Malley, “Sentencing Law and Practice”, 2nd Ed., (Dublin, 2006) at page 149 where the author notes: “It has

been said that when sentencing an elderly offender, a court cannot overlook the reality that each year of sentence represents a

substantial proportion of the life-span of the offender.”

15. Third, the appellant’s previous good character, substantial work history and significant contribution to the community through his

work as a sports coach were not adequately taken into consideration when imposing sentence.

16. In relation to the question of rehabilitation, it is submitted that in The People (DPP) v. Conroy (No.2) [1989] 1 I.R. 160 at page

165 the Supreme Court adopted the dicta from The People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351. In delivering the

judgment of the Court in that case, Walsh J. at page 359 stated as follows:-

“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to

induce him in so far as possible to turn from a criminal to an honest life and that the public interest would be best served

if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the

appropriate sentences in each case having regard to the particular circumstances of that case — not only in regard to

the particular crime but in regard to the particular criminal.”

17. In imposing sentence in the Central Criminal Court for various offences including the vaginal rape of a girl aged 8, Charleton J. in

The People (DPP) v. P.H. [2007] IEHC 335 suspended the last 3 years of a 10 year sentence in circumstances where the convicted

person was asserting his innocence and his right to appeal. Charleton J. stated at paragraph 26:-

“I am conscious that the chance of redemption should be considered for every offender. It is up to the offender whether

he can come out of jail as he went in. Programmes designed to assist against reoffending can only work if there is a

determination to engage with them and to otherwise grasp the chances to take education for the benefit of a future life.

Offering hope to an offender should be considered as a possible component of the sentencing progress.”

18. In relation to the proportionality of sentencing, the appellant refers to The People (DPP) v. McCormack [2000] 4 I.R. 356 at 359

where the Court of Criminal Appeal (Barron J.) stated:-

“The appropriate sentence depends not only on its own facts but also upon the personal circumstances of the accused.

The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime

because it has been committed by that accused.”

19. In The People (DPP) v. Begley [2013] 2 I.R. 188 the Court of Criminal Appeal drew attention to the general principles of sentencing

and reiterated that the correct approach to sentencing required a systematic analysis of the facts of the case and the assessment of

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. This approach is aimed at arriving at a fair and

proportionate sentence. The basis of the sentence should be apparent and consistent with the principles of sentencing.

Respondent’s submissions

20. It is submitted that in structuring a sentence that was proportionate to the gravity of the offence and personal circumstances of

the appellant, the trial judge correctly attached significant weight to the harm caused to the victim, the appellant’s level of culpability

and the probation service report indicating a low risk of committing further sexual offences.

21. It is submitted that the trial judge expressly stated the basis for the imposition of a penalty of 15 years imprisonment as follows:

“The sentence available obviously ranges from suspended sentence to imprisonment for life. I have regard to, One, the

breach of trust involved, the victim being the Accused’s daughter; Two, the location of the offence within the victim’s

home where she was entitled to security and sanctuary; Three, the age of the victim; Four, the affect of the victim as

disclosed by the Victim Impact Evidence; Five, the frequency of the offences; Six, the period over which they extended;

Seven, the predatory nature of the offence; Eight, the absence of any genuine remorse; Nine, the attempts to sabotage

the Trial process by pre trial communications with his victim and her mother.”

22. In relation to the appellant’s age, it is submitted that case law demonstrates many incidences of the imposition of lengthy

custodial sentences on elderly persons who have committed sexual offences. It was not advanced on the appellant’s behalf that at

71 years of age he did not have a reasonable life expectancy or that he had any serious health condition. Cases involving lengthy

prison sentences imposed on elderly offenders where there has been considerable delay must be distinguished.

23. The respondent referred to R v. Hillman [2007] EWCA Crim. 2732 where a 79 year old man who sexually assaulted a 95 year old

disabled woman had a three and a half year custodial sentence upheld on appeal where his age and guilty plea had been taken into

consideration.

24. In The People (DPP) v. P.H. (Unreported, Court of Criminal Appeal, 22nd February, 2002), referred to at p.14 of The People (DPP)

v. P.H. [2007] IEHC 335, an 87 year old man who had pleaded guilty to indecent assault on three young children was sentenced to

three years imprisonment with the final year suspended. On appeal, it was argued that his age and state of health had not been

sufficiently taken into account. In dismissing the appeal, Keane C.J. held that there had been no error of principle having regard to

the offences and the consequences of their commission on the victims.

25. In suspending the final three years of the appellant’s sentence, the trial judge indicated that he was attaching appropriate weight

to the evidence heard of the appellant’s previous good character and the absence of previous convictions. The respondent refers to

O’Malley, “Sentencing Law and Practice”, 3rd Ed., (Dublin, 2016) where the author notes that where a first time offender has been

engaging in serious undetected offending over a long period of time, such as child sexual abuse, the credit given for lack of previous

convictions is unlikely to be substantial.

26. It is further submitted that in suspending the final three years of the sentence, the trial judge was aware of the need to

incentivise rehabilitation. In the particular circumstances of this case there was very limited scope to structure a sentence that would

afford the appellant opportunity for rehabilitation in circumstances where there was no expression of remorse with the exception of

the apology called out to the victim at the very end of the trial.

27. It is submitted that this Court is entitled to consider the appellant’s continued insistence of his innocence as shown by his

application to extend time to appeal the conviction. The respondent refers to The People (DPP) v. C [2015] IECA 76 as authority for

the proposition that the court will not accept evidence of self-rehabilitation unless the convicted person acknowledges his or her

guilt.

28. The sentence imposed was fair and proportionate in all the circumstances. Further, it was apparent and consistent with the

principles of sentencing.

Decision

29. The Court cannot consider the issue raised by the appellant in relation to the decision of the Supreme Court on the applicant’s

case challenging the provisions of s. 249(1) of the Social Welfare (Consolidation) Act 2005 because no leave to add to their grounds

of appeal in respect thereof has been sought. The grounds primarily argued by the applicant are that the learned sentencing judge did

not properly take account of the fact that there was no violence or extreme cruelty manifested other than that inherent in the nature

of the offending itself. Further it is argued that in fixing the sentence he imposed, the learned sentencing judge did not give due

regard to his age, to his previous good character and to his work as a sports coach. In this regard no proper proportionality was

applied. Moreover, no opportunity for rehabilitation was afforded.

30. The late Carney J. was indeed a judge of as few words as were necessary to express his reasoning. Reading through the extracts

from his sentencing which are helpfully set out at pp. 2 and 3 of the respondent’s submissions, it is clear that he did indeed deal with

each of the points raised by the appellant in the written and oral submissions made herein. He noted the appropriate three stages of

approach that the court should take in the sentencing process i.e. identifying the range, placing the offence within that range and

applying such mitigating factors as can be identified. He further went on to consider proportionality by having regard to the gravity of

the offence, by reference to the harm caused and to the offender’s culpability.

31. The learned sentencing judge went on to consider the breach of trust involved and the location of the offences within the home

in that context. He considered the age of the victim, the effect upon her as per her victim impact statement, the frequency of the

offences and the period over which they extended. He considered the predatory nature of the offence, the absence of any genuine

remorse and the attempts to interfere with the criminal process by pre-trial communication with the victim and her mother. All this led

him to identify a headline sentence of 15 years. We can identify no error of principle in his approach or in his conclusion.

32. The learned sentencing judge went on to consider mitigation. He noted that the most fruitful source of mitigation was an early

plea. This did not arise here. Another source of mitigation was genuine remorse. This also was not available to the appellant herein.

The learned sentencing judge then considered the mitigating factors that he could find. He noted the appellant’s advanced age, his

lack of previous convictions, that he had devoted his life to hard work and sporting activities. In taking account of these he allowed

for a suspension of the last three years of the sentence. In the absence of genuine remorse there was little that the judge could do

by way of allowance for rehabilitation. In all these circumstances, we cannot identify any error of principle on the part of the learned

sentencing judge and thus we cannot interfere with the sentence imposed. The appeal is dismissed.