DPP v Counihan

• Jurisdiction: Ireland
• Judgment Date: 24 March 2015
• Neutral Citation: [2015] IECA 76
• Date: 24 March 2015
• Docket Number: [CJA 154/13]
• Court: Court of Appeal (Ireland)

DPP v Counihan

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

NIALL COUNIHAN

APPELLANT

[2015] IECA 76

The President

Birmingham J.

Edwards J.

[CJA 154/13]

THE COURT OF APPEAL

Sentencing - Sexual offences - Undue leniency - Appellant seeking review of sentence on grounds of undue leniency - Whether respondent had engaged in rehabilitation

Facts: The respondent, Mr Counihan, was convicted of two rapes and two instances of sexual assault. He appealed to the Court of Appeal against his conviction but that was dismissed in an ex tempore judgment. When the conviction appeal was disposed of, the DPP's application for review of the sentence on the ground of undue leniency was heard. The Court declared that the sentence was unduly lenient and the DPP's application succeeded. In accordance with established practice and jurisprudence, the Court afforded the parties the opportunity of putting relevant material forward in relation particularly to events or circumstances that had occurred between the date of sentence and the date when the appeal was heard. The Court considered the booklet of materials containing up to date information about the respondent's family circumstances, and specifically the needs of his three little boys. There are features of the case that aggravated the heinousness of the crimes. The respondent was in a position of responsibility in respect of the victim: he was a married man with young children who raped and sexually assaulted his wife's sister, aged 13 and 14 years, when she was babysitting. There was also mitigation present. The respondent was in his 20s when the abuse happened; he had no previous convictions and none subsequently over a period of nearly three decades; he had a very good work record; he is in a settled relationship with a committed partner; they have three young boys who suffer from autism and who need a high level of care; the respondent actively participates in the care of the children; he is considered to be at low risk of re-offending; and his partner is pregnant. The trial judge held that the respondent had, by his good conduct over nearly thirty years since the crimes were committed, effected a kind of self-rehabilitation which made a significant impression on the judge. The judge just felt able to impose a wholly suspended sentence, notwithstanding the gravity of the crimes. The judge held that a sentence of seven years imprisonment was appropriate for the offences, but in view of the mitigating circumstances, he suspended the sentence for a period of five years on conditions.

Held by the President that, having considered that respondent is not the only carer of the children, imprisoning him would not interfere with the rights of the children under the Constitution or the ECHR; the family has the assistance of support services from a wide variety of agencies, including Tusla, the Childhood Family Agency, the HSE's Early Intervention Service, the schools which provide resource teaching and special assistants, and there is a considerable level of engagement by those parties in supervising, assisting and supporting the family. The President held that the judge was mistaken in considering that the respondent had engaged in rehabilitation; that process requires acknowledgement of guilt and acceptance of responsibility for past wrongful conduct, features which were clearly absent from this case. The President held that the judge was undoubtedly entitled to take account of the disruption and inconvenience and distress that imposing the proper sentence on the respondent would entail, but that those features alone were insufficient to justify the quite exceptional course of a non-custodial sentence. The Court was also of the view that the trial judge was in error in deciding that the index sentence for the offences, as committed by the accused, was seven years imprisonment, locating the crimes, as he did, at the higher end of the mid-range; the appropriate sentence before mitigating factors are taken into account cannot be less than ten years imprisonment. The President held that the elements of mitigation enabled the Court to reduce the sentence by an amount of five years in the first instance, and further mitigation, in the view of the Court, was represented by the additional material and the changes that took place and the additional facts that were been put before the Court on the hearing of the application by the respondent, reflecting the altered situation in the intensification of the care needs of the family. In those circumstances, the Court reduced the period of imprisonment by a further two years so as to leave what, in the Court's view, was a quite exceptionally lenient sentence.

The President held that the Court would impose a sentence of three years imprisonment.

Appeal allowed.

1 JUDGMENT of the COURT delivered by The President on the 24th day of March 2015

2 1. It sometimes appears as if there are as many principles as there are decisions of the Court of Criminal Appeal and it is difficult for sentencing judges to know what is the proper approach to take in any particular case. Such is the number and variety of decisions and many different considerations that must be taken into account, that it is an extremely difficult task for a trial judge to comply with them all. This Court will endeavour over time to establish some consistent rules for the guidance of trial and sentencing judges. There is no question of this Court trying to lay down rigid propositions that sentencing courts must follow, but guidance is necessary and appropriate to let judges know how this Court approaches the issues of sentences in different classes of cases. It is in everybody's interest who is involved in the justice system or observing it to know how this Court approaches its task. This is important, not only for judges who are passing sentence, butalso for lawyers and victims and persons convicted or pleading guilty and the public generally.

3 2. The Supreme Court set its face against prescribing programmes of sentences that would be appropriate in particular cases, first, because there was inadequate statistical information available as to sentencing practice in this country, and secondly, because it was reluctant to interfere with the independent judicial function in so important an area as criminal sentencing. It is, nevertheless, desirable that the courts should aim for consistency of approach in this important task. It is not satisfactory to have a wide range of sentencing practice depending on the inclination of the individual judge. Having said that, there will, of course, be variations in sentences, even in fairly similar cases because judges will inevitably differ to some degree in their assessment of the different elements that go into the sentencing process.

4 3. It used to be the case that the only sentence appeals that came before the Court of Criminal Appeal were brought by convicted persons on the ground of severity. That has changed since 1993, when the Oireachtas gave the Director of Public Prosecutions the statutory right to appeal on the ground of undue leniency. A person who pleads guilty or is convicted now faces the prospect, if he is treated very leniently by the sentencing judge, of an application to this Court for the review of his sentence. In the case of a suspended sentence, the person has an anxious wait to see whether the sentence will be altered. Prior to the establishment of the Court of Appeal, it could happen that there was a substantial delay in the hearing of the appeal which made for difficulty...