DPP v O'Brien

 
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[2015] IECA 1

THE COURT OF APPEAL

Ryan P.

Sheehan J.

Mahon J.

31 CJA/13
DPP v O'Brien
In the matter of an application purist to s. 2 of the Criminal Justice Act 1993 and In the matter of Bill No. CC 79/12

Between

The Director of Public Prosecutions
Applicant

and

Patrick O'Brien
Respondent

31CJA/2013 - Ryan Sheehan Mahon - Court of Appeal - 19/1/2015 - 2015 IECA 1

Criminal Law – Historical Sexual Abuse – Sentencing – Leniency

Facts: The Director of Public Prosecutions applied for an order to review the sentence imposed on the respondent in respect of eight counts of rape and eight counts of indecent assault. The judge considered the evidence of the investigating officer, the victim impact statement, the accused”s early guilty plea, medical evidence on behalf of the accused and the length of time that had elapsed since the offences had been committed. The sentence imposed was twelve years imprisonment in respect of each count of rape, nine years suspended and three years imprisonment in respect of each count of indecent assault. All the sentences were to run concurrently.

Ruling: The court did not consider the delay in bringing the case as a matter of mitigation. The status of the perpetrator and his conduct in committing the abuse caused the delay thus allowing the court to draw inferences. The court did consider the illness and infirmity of the accused as a mitigating feature. However, the court also stipulated that there was no rule to prevent anyone who is ill from being sent to prison. The accused”s advanced age was relevant but did not act as a bar to a custodial sentence being imposed. The accused”s medical information was also relevant to the plea in mitigation. The court was of the view that the learned sentencing judge had erred in principle and the sentence imposed, insofar as it directed the suspension of nine years, was unduly lenient.

Reporter: LLJ

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1. This is an application by the Director of Public Prosecutions for an order reviewing the sentences imposed on the respondent at the Central Criminal Court on the 21 st January, 2013 in respect of eight counts of rape and eight counts of indecent assault, which were sample counts on full facts, the offences having been perpetrated on the respondent's daughter between 1973 and 1982. The sentences were of twelve years imprisonment in respect of each count of rape, with nine years suspended and three years imprisonment in respect of each count of indecent assault, all the sentences to run concurrently.

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2. The respondent was born on the 4 th August, 1940 and is now aged 74 years The abuse happened between 1973 and 1982 when the child was aged from seven years to sixteen years. It began on the night before she made her first Holy Communion when the respondent had sexual intercourse with her. Over the next nine years the abuse continued regularly and frequently so that it became routine. The mother would go out at night to play bingo leaving her at home with the respondent who raped and indecently assaulted her. It was a nightly occurrence for him to rape her while watching television and when the other children were in bed. The assaults were not confined to the family home and took place in other locations, such as in woods or a car park or in the home of a family friend. The respondent would collect the victim from school at lunchtime and bring her home to rape her while the mother was out at work. The abuse included oral sex as well as vaginal and anal rape. The victim required hospital treatment when she was aged twelve for anal warts, when unfortunately this indication of sexual activity was not recognised by the hospital.

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3. The victim was beaten and she lived in a culture of fear. The family decided to relocate to England in 1982, but she was made to stay in Ireland with her father who moved her into the mother's bed and continued to rape her nightly. The abuse continued until the child was sixteen years.

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4. The victim read a powerful impact statement to the court. She described the terrible trauma that she underwent at the hands of the respondent and her feelings of despair and how she believed that she deserved everything she got. She felt that she was a helpless pawn in an evil marriage. She attempted suicide on two occasions, one of them requiring treatment in intensive care. Her capacity for forming human relationships was destroyed. She has deep psychological scars but she described relief to a degree by the court process and the fact that she had been vindicated. Nothing however could undo the enormous damage her father did to her which is something that she has lived with since she was a young child and will have until she dies.

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5. The torture that the child suffered is truly shocking. The long-term effects that the woman described to the sentencing court are consistent with our knowledge of the devastating consequences of sexual abuse of children.

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6. The learned trial judge heard evidence of the investigating Garda officer, the victim impact statement and the plea in mitigation made by counsel for the accused on the 14 th January, 2013. Counsel in pleading for mitigation emphasised the importance of the accused's guilty plea. She pointed out the long time that had elapsed since the offences were committed, that there were no previous convictions and the last one had been committed in 1982. The respondent had not been convicted of any offence subsequent to 1982 and he was remorseful for what he had done. On his behalf she offered an apology to his daughter.

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7. Counsel pointed out that the respondent was infirm of health and he was of advanced age. She cited the judgment of DPP v. Kennedy but acknowledged that the offending was of a wholly different order in that case Counsel did not seek to equate the two cases, but simply to refer to the principle. The specific mitigating factor relied on by counsel was the respondent's state of health. She summarised his medical condition and handed into court a list of the various conditions from which he suffers. Counsel said that the respondent has ongoing and constant pain of different degrees which is worse at night than during the day. He wears a morphine patch all the time. He falls regularly, perhaps twice or three times a week. He was suffering at the time of sentence from cracked or broken ribs due to the most recent fall and had been in hospital as recently as the previous week. He was a regular attender at A & E for these reasons. His list of ailments included arthritis and he was on medication for a number of different things. He had takesn thirteen different tablets that morning and would take another six at night before going to bed. As well as the morphine patch, he used Solpadeine for pain relief. He had a heart condition for which he used a spray. He had obstructive airway and lung problems. He remained indoors and only left home by ambulance or private car when there was an emergency. He could not manage stairs and there was a difficulty with a carotid artery. Counsel mentioned gastritis, hernia and other matters, his diet was necessarily limited, he was being treated for heart disease and he had difficulties with emphysema in addition to the arthritis already mentioned. Finally, she mentioned that the respondent is on oxygen, that he has a tank that is switched on overnight so that he has eight hours of oxygen.

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8. The learned judge referred to a previous case in which he had heard evidence in respect of an infirm accused from the Director of Nursing of the Prison Service to deal with how the State was in a position to cope with somebody in ill health. The court put the matter back to allow an opportunity to adduce such evidence and that was heard on the 21 st January, 2013.

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9. The Director of Nursing of the Irish Prison Service, Ms. Frances Nagle O'Connor, gave evidence that the Prison Service would be able to deal with the list of ailments from which the respondent was suffering. She said that the care provided in the Prison Service would match the community equivalent. She was cross-examined by counsel for the respondent who questioned her assertion that the prisoner would be as well provided for in prison as in the community and she was clear that that was the case. She pointed out that the previous week a person in prison had had a major hear attack and was very successfully treated within the prison setting. A person living in the community was as likely to experience a medical emergency as one in prison.

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10. When it came to sentence the trial judge said that it was one of the most difficult cases to resolve. He said that it was one of the worse cases of abuse on a daughter as one could possibly find. The judge briefly summarised the evidence as to the extent and frequency and nature of the abuse. He said that he had very little difficulty in saying that it was at the top of the scale as regards offences of this nature by fathers on daughters. On the other hand, there was the health position of the respondent. The judge referred to the case of DPP v. Kennedy but noted the difference because the offences in that case were at a low level of gravity, one being described as on the cusp of criminality. Nevertheless, the judge noted that the Court of Criminal Appeal had suspended in total the moderate sentences imposed on the grounds of the accused man's state of health.

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11. The judge proceeded to identify the range of penalty and to...

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