DPP v Clarke

• Jurisdiction: Ireland
• Judge: Miss Justice Irvine
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] IECA 27
• Court: Court of Appeal (Ireland)
• Date: 12 December 2014

[2014] IECA 27

THE COURT OF APPEAL

Irvine, J., Sheehan, J., Mahon, J., [Appeal No. 11/2013]

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Peter Clarke

Appellant

Sentencing – Sexual offences – Unduly severe sentence – Appellant seeking to set aside sentence on grounds of undue severity – Whether trial judge properly considered the circumstances of the offences and the personal circumstances of the applicant

Facts: The appellant, Mr Clarke, pleaded guilty to two offences contrary to s. 2 of the Criminal Law (Rape) (Amendment) 1990 in October, 2012. He had a number of previous convictions, including two counts of indecency and one count of sexual assault. At the time of the second offence the appellant was taking an anti-androgen drug to reduce his sexual impulses. On 10th January, 2013, in the Circuit Criminal Court, the appellant was sentenced to a term of imprisonment of five years in respect of each offence. His term of imprisonment was backdated to 11th September, 2011, that being the date upon which he was taken into custody. Following his committal to prison, the appellant continued to make suggestive sexual remarks and gestures towards female staff. A psychological examination did not suggest that the appellant was cognitively impaired and he was considered to be border line in terms of intellectual functioning. On his release he was directed to fully engage and co-operate with the Probation Services for a period of seven years. The appellant then sought to set aside that sentence on the grounds that it was unduly severe. He asserted before the Court of Appeal that: the trial judge failed to have any proper regard to the plea of guilty, given that he referred to the appellant in a very disparaging way in the course of his sentencing; the trial judge erred in principle in considering the gravity of the offence, because the trial judge said that he would have given the appellant the maximum sentence, had he not pleaded guilty, and that this clearly amounted to an error in principle; the trial judge did not give proper consideration to the medical evidence when considering the nature and gravity of the offences; the trial judge misunderstood the medical evidence when he concluded that the accused seemed to be proud and boastful of his actions; the trial judge erred in principle, insofar as he decided to incarcerate the appellant by way of preventative detention. The DPP would not stand over the trial judge”s disparaging statements. The DPP submitted that: the trial judge had imposed a sentence which was just and appropriate having regard to the circumstances of the offences and the personal circumstances of the offender; the protection of the public was an appropriate factor to be taken into account by the trial judge, citing DPP v McMahon [2011] 3 IR 774; the trial judge had taken all mitigating factors into account, including the appellant”s guilty plea and the risk that he could be subjected to offensive behaviour or abuse while in custody; the trial judge had also dealt properly with the aggravating factors, insofar as the appellant was not a first time offender, and had given appropriate consideration to the age of the victims, the fact that the appellant had displayed no real remorse and his disposition to re-offend in respect of the most vulnerable members of society, namely young girls.

Held by Irvine J that the trial judge properly considered the circumstances of the offences and the personal circumstances of the appellant. The Court was also satisfied that the trial judge took into account all of the appropriate mitigating factors. While it might be said that the trial judge made an error in principle in terms of where he placed the offences on the scale in terms of their gravity when commencing his consideration of the sentences to be imposed or that he incorrectly treated certain statements made by the appellant at interview as aggravating factors, the Court was nonetheless satisfied that, in the light of the circumstances of the offences and those of the offender, and particularly having regard to the medical evidence, the Circuit Court judge was left with no option but to impose a significant custodial sentence in respect of each offence.

Irvine J held that the Court was satisfied that the sentences ultimately imposed were not unduly severe such as to warrant setting them aside. The Court came to that conclusion regardless of whether or not the appellant was on bail at the time that he committed the second offence. Accordingly, the Court refused the application.

Appeal dismissed.

Miss Justice Irvine

1 The background to this application is that on 30th October, 2012, the appellant pleaded guilty to two offences contrary to s. 2 of the Criminal Law (Rape) (Amendment) 1990, as amended by s. 37 of the Sex Offenders Act 2001.

2 Consequently, on 10th January, 2013, in the Circuit Criminal Court, the appellant was sentenced to a term of imprisonment of five years in respect of each offence. His term of imprisonment was backdated to 11th September, 2011, that being the date upon which he was taken into custody. On his release he was directed to fully engage and co-operate with the Probation Services for a period of seven years. The appellant now seeks to set aside that sentence on the grounds that it was unduly severe.

The circumstances of the offences

3 The first offence was committed on 12th May, 2011, on the main street in Carrickmacross town in the early afternoon. The victim, a fifteen year old school girl, was walking down the street when the appellant came up behind her. He grabbed her shoulder with his right hand, touching her hair and neck. With his left hand he felt her stomach and down as far as her vagina, which he then squeezed and felt for, according to himself, about two minutes.

4 In the course of his interview with Garda Gibbons on 12th May, 2011, that being the day of the offence, the appellant immediately admitted his assault. He said that the reason he had let his victim go was that there were a lot of people around. If there had not been, he stated, he would have pulled her trousers down and got on top of her, provided his penis was working. The appellant admitted picking on his victim because she was on her own. He said he knew that she was a child of fifteen years of age and that what he wanted to do was wrong, but he had wanted sex that day. When asked how he thought his victim had felt about the assault, he said he knew that she was afraid. As to why he carried out the assault, he said he did it for the buzz. When asked if he had anything additional to say, he said he wanted to offer his victim a couple of hundred euros. When asked if he would do it again, he said he did not think he would.

5 As for the victim of the assault, Garda Gibbons told the Court that when she attended the garda station with her father, she was very shocked, distressed and angry.

6 The second assault occurred on 10th September, 2011, and occurred outside St. Joseph”s Church in Carrickmacross. The appellant saw ten to fifteen people standing outside the church, including a ten year old girl. He went up to her and, according to himself, ‘caught her by her bum and private parts’. He put his hand on her vagina, touching her outside her jeans. When asked if he would like to have taken things further, he replied in the negative, stating that there were loads of people around.

The personal circumstances of the appellant

7 The appellant was born in 1944 and was sixty eight years of age at the time the sentence was imposed. He was a single man living with his sister. He had never been married nor in a long term relationship. He had a number of previous convictions, including one count of theft, one count of breach of the peace, two counts of indecency and one count of sexual assault – the last of those offences had been dealt with in the...