D.P.P. -v- H.,  IEHC 335 (2007)
|Party Name:||D.P.P., H.|
THE CENTRAL CRIMINAL COURT
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Charleton delivered the 15th day of October, 2007.
The accused, who I will call P. H., was found guilty, after a trial lasting five days, of four counts of rape and four counts of indecent assault against his stepdaughter, whom I will call N. He was acquitted on thirteen other charges, and in respect of two charges the jury disagreed. The offences with which the accused was charged ranged in time between January, 1980 and July, 1986. What characterises the offences in respect of which the jury found the accused guilty, is that these were all incidences which were supported in the victim's evidence by a narrative relating the crime to a particular context. In cases of this antiquity, relating the charges in the indictment to the evidence given on behalf on the accused and on behalf of the victim can be particularly problematic. Since my purpose in giving judgment today is to decide on an appropriate sentence, it is as well to look at the narrative surrounding these particular events.
The victim was born in 1974. Her stepfather began a relationship with her mother when she was about three years of age. The narrative of her evidence to the jury followed a pattern which is familiar to anyone who has dealt with the issue of child sexual abuse. The offender began his assaults on her by fondling, which became progressively gross in terms of its sexual intrusion, moving from attempted penetration to actual intercourse.
I will describe the indecent assault convictions first. In respect of count 27 in the indictment, the jury accepted that on a date unknown between the 14th July, 1982, and the 8th September, 1982, the victim, then aged 8 years, was sexually assaulted by the offender. The victim's sister described this event by recalling that a car battery had been put to the front door of their house in rural Ireland, that she had been brought to a bedroom in the house where she was left standing in a corner, and that her sister was put on the bed while the offender got on top of her. At that point she shut her eyes. From the evidence of the victim, the jury were not satisfied that penetration took place on this occasion. Count 37 in the indictment related to an offence which happened between the 9th and 27th of April, 1979. It was proved that this was an Easter break from school. The victim described her mother asking her about a choice of Easter egg and then leaving to go to the shops. She was then in bed with an infection. She was called by her stepfather into a bedroom and there was an attempt at penetration. In her evidence she could not say whether the offender succeeded or not. Count 38 in the indictment related to an occasion when her brother A. was born in November, 1980 and her mother was confined in hospital. The victim recalled that, during this time, she had to wear her mother's night dress and sleep in bed with her stepfather. She recalled her stepfather coming up from behind her in the bed and assaulting her with his penis. Her evidence was of recollecting looking at the curtains and crying out loud, of being scared and in pain. The last count of indecent assault on which the jury found the accused guilty was count 40. This refers to an incident of indecent assault between the 1st July, 1984, and the 30th June, 1986, which involved oral penetration. The victim who could then have been around eleven years old, recalled in her evidence that, during this time, her head was held and pushed on top of the offender's penis. She recalls choking. An opportunity had been created by the absence of her mother who attended a regular bingo evening.
I turn now to the counts in which the offender was found guilty of rape. Count 17 in the indictment described an offence which occurred when the family were living in a caravan and the victim, as a girl of eight, had to look after her baby sister. She recalled being put lying down, having lubricant put on her and some penetration taking place. The events detailed in Count 18 occurred when the victim was between eight and ten years of age. In her evidence she said she was eight or nine years old. The attack happened at Christmas. The offender was in the attic getting down Christmas lights. The victim was called upstairs; she was lifted up into the attic and then directed into a bedroom where, after lubrication, the jury has found there was some penetration. The victim describes herself as "crying silently". The offence in count 19 in the indictment happened when the victim was about ten years of age. She had just gotten her ears pierced. She had been playing out at the front of the family home when she was called in by her stepfather, put lying down in a bedroom, while the offender knelt over her and penetrated her. The final offences which I am concerned with happened when the victim was six or seven years old. She had an uncle and aunt who lived a few miles away and they had a happy home which was a refuge to her. One day, however, her father suggested that they would walk there together along the railway tracks. In her evidence, the victim recalled that she was small enough for a piggy back. On a deserted railway embankment she was put lying down and then penetrated.
The evidence of the accused, which the jury rejected, was to the effect that there was always someone in the home with him and his stepdaughter, and that he was often out of the house on the occasions when these offences were supposed to have happened, being very busy with work and music. He said that as there were social workers involved with the family, the evidence of the victim as to why she would not complain had become incredible. He said that he believed that the victim had been indecently assaulted and raped by somebody and his strong belief was that the culprit was her uncle. In other words, he denied the offences. But, in speculating that they may have happened, blamed the crimes on a dead man.
My purpose in giving judgment on the issue of an appropriate sentence for this offender was to attempt to determine whether the precedents would offer substantial guidance. I am obliged to impose a sentence which is appropriate. In doing so I am guided by the relevant precedents of sentencing that have been set down over many years in the judgments of the Superior Courts. In referring to some decided cases therefore, my aim is to dispose of the case consistently with the penal policy of the Superior Courts.
Right to trial
It is the right of every accused person to challenge the accusation made against him or her. Many decided cases, howsoever, emphasise the value of an early plea of guilty. In the course of his judgment in The People (D.P.P.) v. Tiernan  I.R. 250 at p. 255, Finlay C.J. stated:-"I have no doubt, however, but in the case of rape an admission 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."In the later case of The Director of Public Prosecutions v. G.  1 I.R. 587, Finlay C.J. emphasized that a genuine admission of wrongdoing was of very considerable importance in mitigating or sentence for rape and other violent offences. It can be the case, however, that the nature of the wrongdoing involves a situation where even an early admission of guilt cannot mitigate the appropriate punishment below the maximum potential sentence for rape, which in life imprisonment; The People (DPP) v. R. McC.  I.E.C.C.A. 71.
An early admission to a violent crime certainly involves an obligation on the sentencing judge to consider discounting the appropriate sentence by a substantial factor. What that factor is will depend on the circumstances. An admission of guilt can occur between a polarity established by two extreme sets of circumstances. An offender may admit guilt even in the absence of an accusation made against him. That might occur, though I have never seen it, where, for instance, a child victim is cowed from making an approach to the authorities but the accused spontaneously condemns himself. At the other extreme is the case of the offender who pleads guilty at the very last moment because all the relevant witnesses have turned up to give evidence at his trial and the case is deemed from the book of evidence to be almost impossible to defend.
It may seem that the failure of the courts to apply an appropriate mitigation to the relevant tariff in sentencing occurs because the accused has pleaded not guilty. That is never the case. The accused in this case, for instance, is not entitled to a discount in respect of his sentence because he has shown no remorse, and therefore has taken no obvious step towards rehabilitating himself but has instead challenged every aspect of the victim's version of events. He is not to be sentenced in respect of the trauma that she has suffered consequent upon having to come to court and relive these events, and to have her credibility challenged: but rather no discount is available to the accused.
These offences occurred over a seven year...
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