DPP v Adam Keane
| Jurisdiction | Ireland |
| Judge | Murray C.J. |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] IECCA 119 |
| Court | Court of Criminal Appeal |
| Docket Number | [C.C.A. |
| Date | 19 December 2007 |
[2007] IECCA 119
THE COURT OF CRIMINAL APPEAL
Murray C.J.
Charleton J.
Irvine J.
BETWEEN
CRIMINAL JUSTICE ACT 1993 S2
CONSTITUTION ART 30.3
COURTS OF JUSTICE ACT 1924 S29
AG & ANOR v RYANS CAR HIRE LTD 1965 IR 642
CRIMINAL JUSTICE ACT 1993 S2(1)
CRIMINAL JUSTICE ACT 1993 S2(3)
OFFENCES AGAINST THE PERSON ACT 1861 S48
CRIMINAL LAW (RAPE) ACT 1981 S2
DPP v Y (N) 2002 4 IR 309 2002/10/2326
DPP v TIERNAN 1988 IR 250
CRIMINAL PROCEDURE ACT 1993 S3
DPP v D (G) UNREP CCA 13.7.2004 2004/15/3395 2004 IECCA 17
DPP v DROUGHT UNREP CHARLETON 4.5.2007 2007 IEHC 310
DPP v R UNREP CCA 15.3.1999 1999/9/2117
SEX OFFENDERS ACT 2001 S29(1)
CRIMINAL LAW
Sentence
Review - Rape - Suspended sentence - Whether unduly lenient - Approach to sentencing for rape - Use of precedent for sentencing purposes - Possibility of non-custodial sentence for rape - Whether trial judge erred in principle - Aggravating circumstances - Mitigating factors - System of appeal courts - People v Tiernan [1988] IR 250 considered; People (DPP) v NY [2002] 4 I.R. 309 distinguished - Criminal Justice Act 1993 (No 6), s 2 - Custodial sentence imposed (67/2007 - CCA - 19/12/2007) [2007] IECCA 119
People (DPP) v Keane
JUDGMENT of the Court delivered by Murray C.J. on the 19th day of December 2007
This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the Respondent in the Central Criminal Court on the 12th March 2007 following his conviction by the jury of the offence of rape. The sentence imposed by the learned trial Judge was one of three years imprisonment suspended on his being of good behaviour in his own bond for €1,000 for a period of five years. (He was also certified as a sex offender and placed on the Sex Offenders Register).
The D.P.P. brings this application as an independent public servant authorised by law to prosecute crimes and offences pursuant to an Act of the Oireachtas adopted in accordance with Article 30.3. of the Constitution which otherwise vested the role of prosecutor in the Attorney General.
As in virtually every country, the Courts established by and in accordance with the Constitution have a hierarchal structure. This permits, inter alia, access to the Courts at first instance and on appeal to a higher Court whose decision is then final and binding. Exceptionally there may be a further appeal to a higher Court again, usually in limited circumstances, in one form or another, such as an appeal from this Court to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924.
Courts of appeal have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process. Legal systems provide for an appeal from Courts of first instance not least because it is not assumed that Courts of first instance are infallible no more than it is assumed Courts of appeal are. There is no human institution that enjoys such a brave assumption. Indeed when the Supreme Court relaxed the doctrine of stare decisis (in AG -v- Ryan Car Hire Limited 1965 I.R. 642) Kingsmill Moore J. noted "If it could be safely assumed that all members of a Supreme Court were perfectly endowed with wisdom and completely familiar with all branches of the law, to treat their judgments as infallible would need but little justification. Judicial modesty has refrained from putting forward such a claim ... ." Moreover, an appeal by a party who, rightly or wrongly, is dissatisfied with a decision of a Court of first instance, in addition to providing the party with the benefit of a case being heard or examined a second time by another Court, also brings finality to individual disputes before the Courts which is one of the objects of the administration of justice.
That is the structure which we are constitutionally bound to respect.
As regards sentencing, for a very long time only the convicted person had a right of appeal against the sentence imposed on an accused following conviction on indictment. There were historical policy reasons for this which it is not necessary to consider here. Suffice it to say that, for public policy reasons, the Oireachtas decided in 1993 that the Director of Public Prosecutions should, in the circumstances referred to in s. 2 of that Act have a right to apply to the Court of Criminal Appeal to review the sentence imposed by the trial Court. That is the position in law.
Subsection (1) of that section provides "If it appears to the Director of Public Prosecutions that a sentence imposed by a Court ... on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence".
Subsection (3) provides that on such an application this Court may either quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate being a sentence which could have been imposed on the accused by the sentencing Court. Alternatively, it may refuse the application of the D.P.P.
Having imposed sentence in this case the learned trial Judge went on to advise Counsel for the respondent that he should warn his client that "the Director is very trigger happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter."
The Court considers this reference by the learned trial Judge to have been unfortunate as it may be understood as trivialising or lacking in the respect which is due to the process of appeals designated as appropriate by the Oireachtas. Section 2 of the Act of 1993 established a process of access to a court of appeal on the part of the D.P.P. in respect of sentences imposed by the sentencing Court. A Court should avoid using language that might be taken to suggest the denigration of the exercise of a statutory function of appeal. Moreover no finding was made or any conclusion pointed to which could in any sense justify the use of language suggesting that the right of appeal was being abused, which in any event is essentially an issue for the Court of Criminal Appeal.
On the contrary, the Director's application in this case far from being an abuse of the process of the Court is, as the Court's conclusions set out below in this judgment demonstrate, one which is well founded.
The offence of which the respondent was convicted is that he did, at a time unknown on the night of the 29th or 30th May 2005, at a certain address in Ennis, Co. Clare have sexual intercourse with a female person who at the time of the intercourse did not consent to it and at the time he knew that she did not consent to the intercourse or was reckless as to whether she did or did not consent to it, contrary to common law and as provided by s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act, 1981.
It should be noted at this stage that subsequent to the imposition of the suspended sentence by the Court of trial the respondent was brought before that Court again and, after the learned trial Judge had made certain findings of fact adverse to the respondent, he set aside the suspension of the respondent's sentence and ordered that he serve the term of three years imprisonment. This latter Order of the trial Judge was in turn appealed to this Court by the respondent. That is a separate issue with which the Court is not presently concerned. The sole question before the Court for present purposes is whether the application by the D.P.P. pursuant to s. 2 of the Act of 1993 is well founded.
The essential facts concerning the rape of the victim were not in dispute at the trial although the accused maintained his plea of not guilty throughout. From the outset of the Garda investigation into this offence, shortly after its commission, and throughout the trial the stated position of the respondent was that he had no recollection whatsoever of the events immediately surrounding its commission due to the fact that he had earlier, during the evening prior to the offence committed, consumed a considerable amount of alcohol and also taken some drug described as MDMA and referred to in the trial as being a form of ecstasy. There was in any event cogent evidence from the victim herself as well as expert evidence which showed that the DNA profile derived from a semen sample taken from the victim matched the DNA profile of the respondent.
The victim, Miss Y, was at the time of the offence a 33 year old single woman who lived on her own with three young children on a housing estate in Ennis, Co. Clare. The children were aged about 10, 8 and 4 at the time. At that time Miss Y had been "essentially living with", as it was put at the trial, her boyfriend Mr. M since September 2004. He had previously been a boyfriend of Miss B. At the time of the offence Miss B's boyfriend was the respondent. Mr. M was not residing in the victim's house around the time of the offence because of an argument which had occurred between them. Miss B lived in a house on the same housing estate nearby to Miss Y's.
Although the respondent and Miss Y knew one another from the locality and mutual friends, especially through Miss B, and he had previously been in her house, there had never been a close or intimate relationship between the two of them.
On the evening of May 29th 2005 the victim, Miss Y, had put the children to bed by 9.30 p.m. and decided to go to bed early herself shortly after...
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