DPP v (Christopher) Byrne

 
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1995 WJSC-CCA 1758

THE COURT OF CRIMINAL APPEAL

O'Flaherty J.

Geoghegan J.

Kinlen J.

No. 17AC/93
DPP v. BYRNE
In the matter of Section 2 of the Criminal Justice Act, 1993
And in the matter of Bill
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor

AND

CHRISTOPHER BYRNE
Accused

Citations:

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

DPP, PEOPLE V W C 1994 ILRM 321

DPP, PEOPLE V TIERNAN 1988 IR 250

DPP V G UNREP SUPREME 11.11.93

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1993 S5

Synopsis:

CRIMINAL LAW

Sentence

Review - Prosecutor - Application - Grounds - Leniency - Accused pleaded guilty to rape and buggery and to rape committed 24 hours earlier - Two concurrent terms of ten years penal servitude imposed for the two rapes - Concurrent term of ten years imprisonment imposed for buggery - Sentences for rape and buggery on second occasion not unduly lenient - Criminal Justice Act, 1993, s. 2 - (17Ac/93 - Court of Criminal Appeal - 7/11/94) - [1995] 1 ILRM 279

|Director of Public Prosecutions v. Byrne|

WORDS AND PHRASES

"Unduly lenient"

Rapes - Convictions - Sentences - Penal servitude - Concurrent terms of ten years - Two rapes committed within 24 hours of each other - Second rape attracted same sentence as first rape - Director's application for review of sentences - (17Ac/93 - Court of Criminal Appeal - 7/11/94)

|Director of Public Prosecutions v. Byrne|

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Ex-tempore judgment of O'Flaherty J. delivered the 7th day of November, 1994.

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This is an application brought on behalf of the Director of Public Prosecutions pursuant to Section 2 of the Criminal Justice Act 1993to review the sentence passed upon the accused, Christopher Byrne, on the 19th January, 1994 by the Central Criminal Court presided over by the then President of the Court Mr. Justice Hamilton. The sentence was one of ten years penal servitude in respect of two counts of rape and a sentence of ten years imprisonment on one count of buggery contrary to Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990. The sentences are to run concurrently. It is sought to say that these sentences are unduly lenient having regard to all the circumstances of the case, the victim impact reports submitted to the Court, the medical report on the victims as well as the oral evidence in the case.

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Section 2 of the Criminal Justice Act, 1993, so far as is relevant provides:-

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(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

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(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

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(3) On such an application, the Court may either -

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(a) 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 him by the sentencing court concerned, or

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(b) refuse the application.

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The Court requested counsel for the Director of Public Prosecutions to submit any fact or circumstances which it was alleged on behalf of the Director was taken into consideration by the trial judge in imposing the sentences and which was not relevant to the case or to any fact or circumstances which the Director could submit was relevant to the case and was not taken into consideration by the trial judge in imposing sentence. In response to that request a submission dated the 7th October, 1994 was furnished to the Court, a copy being supplied to the accused. It is right to say that Mr. Haugh S.C. and Mr. O'Hagan arguing the case on behalf of the Director of Public Prosecutions essentially have followed that submission. The submission was as follows:

10

On the 19th day of October 1993 the respondent affirmed signed pleas of guilty on a number of charges on which he had been sent forward to the Central Criminal Court for sentence, by the District Court. The first charge on which he affirmed his signed plea was that he did between midnight on the 11th/12th July 1994 and 4.40 a.m. on the 12th July 1993 at certain licensed premises raped who, for convenience and to preserve her anonymity, the first woman.

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On the 26th November 1993 the facts of the circumstances of that offence were outlined in evidence by Sergeant Leo McGinn to the learned President of the High Court. The offence occurred on the night of the burial of the first woman's mother. The respondent broke into her house while she was asleep and took her from beside her sleeping husband to the sittingroom of the premises. He had what looked like a white stick in his hand and he was asking for money. After a brief period in the sittingroom the respondent, with his hand over her mouth, brought that woman to what is known as the bar section of the building. He took off her panties and left his stick on the ground and took a knife from his pocket. He then raped her. He then left. The woman then left to raise the alarm by making a phone call from a neighbour's house and as she did so the respondent grabbed her again as she was crossing the road, put a headlock on her and again brought her back across the road and forced her into her house. He then made good his escape.

12

The second and third charges on which the accused affirmed his signed pleas of guilty related to the rape and buggery of the second woman in the small hours of the morning on the 13th July 1994, some 24 hours after the first offence had occurred. This woman was at the time 77 years of age and a widow and she lived alone in a certain part of the country. Again evidence as to the circumstances of these offences was given by Sergeant McGinn on the same occasion. This woman had retired to bed at about 11.00 p.m. and she was woken by the respondent standing in her room. He asked her for money and for a video. The respondent lay on the bed beside her and began to fondle her breasts. He tore her night attire almost the complete length of the nightdress. He threatened her with a knife. He raped her. He then tied a cloth around her mouth and stuffed part of it into her mouth as well as tying her hands with a belt. He ordered her to lie face down and he again threatened her with a knife. He then buggered her. He hit her a number of blows in the facial area.

13

The respondent was arrested on the 16th July 1993. Whilst detained under the provisions of Section 4 of the Criminal Justice Act, 1984he made confessions to the investigating gardai. He signed pleas of guilty in the District Court and affirmed those written signed pleas in the Central Criminal Court.

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The accused had a previous conviction in 1985 for indecent assault and the circumstances of that offence were also outlined by Sergeant McGinn to the learned President of the High Court on the 26th November, 1993.

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It is not submitted on behalf of the applicant that the sentence of 10 years penal servitude in respect of the rape of the first woman was per se unduly lenient having regard to the mitigating factors as properly found by the learned President of the High Court.

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It is however submitted on behalf of the applicant that the sentence of 10 years penal servitude for the rape of the second woman and the sentence of 10 years imprisonment for the rape under Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990(hereinbefore referred to as the buggery charge) were unduly lenient in that all sentences imposed were to run concurrently so that in effect no additional penalty or sanction was imposed in relation to the offences committed against the said second woman. Further or in the alternative it is submitted that those sentences which relate to the offences against the second woman were unduly lenient, having regard to the accused's previous offence against the first woman and it is submitted that the learned President of the High Court failed to take this aspect properly or adequately into account. It is submitted that the offence against the first woman and the offences against the second woman were totally separate and unconnected and it is accordingly submitted that because no additional sanction or penalty was imposed in relation to the offences against the second woman that those sentences were unduly lenient.

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There were prepared victim impact reports in respect of both women by Dr. Lyster, who is a consultant psychiatrist. What will be set forth is a brief summary of some of his findings in regard to each case.

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To deal now with the first one. This report sets out that this unfortunate woman suffered sleep disturbance with nightmares, the nightmares being of a consistent pattern of being trapped somewhere, with men everywhere and no means of escape. She tends to wake up at the same time each night, approximately 3 a.m., the time at which the incident occurred, sweating and extremely anxious and frightened. She has been taking sleeping tablets since the incident but despite this continues to have disturbed sleep.

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Depressed moods since this incident . She complains of feeling depressed and has mood swings. She has lost interest in herself and in life in general.

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Anxiety since the incident . This woman has suffered severe anxiety and worries constantly that she will be...

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