DPP v D

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMr Justice McCracken
Judgment Date21 May 2004
Neutral Citation[2004] IECCA 8
Date21 May 2004

[2004] IECCA 8

COURT OF CRIMINAL APPEAL

McCracken J

Lavan J

Murphy J

Record No. 126/03
DPP v. D
The People at the Suit of the Director of Public Prosecutions
-V-
D
Applicant

Citations:

PEOPLE, AG V MANNING 1953 89 ILTR 155

DPP V MAJEWSKI 1977 AC 443

LEARY V THE QUEEN 1977 74 DIR 3D 103

R V BERNARD 1988 2 SCR 833

BLACKSTONE V BENTHAM 1976 92 LQR 516

R V DAVIAULT 1994 3 SCR 63

CANADIAN CHARTER OF RIGHTS OF FREEDOMS S7

CANADIAN CHARTER OF RIGHTS OF FREEDOMS S11(D)

QUEEN V O'CONNOR 1980 146 CLR 64

Abstract:

Criminal law - Sentencing - Appeal- Rape - Sexual assault - Criminal Justice Act, 1999 - Whether the trial judge erred in principle in imposing a life sentence for a conviction of rape in circumstances where the accused had pleaded guilty.

The applicant was sentenced to life imprisonment in respect of each of two counts of rape and to five years imprisonment in respect of each of two counts of sexual assault. Those sentences were to run concurrently. The applicant sought leave to appeal against the severity of the sentence.

Held by Court of Criminal Appeal (McCracken, Lavan, Murphy JJ) in refusing leave to appeal:

1. That there were ample facts which the trial Judge was entitled to consider amounted to exceptional circumstances justifying the imposition of a sentence of life imprisonment despite the applicant's plea of guilty. Accordingly, the trial judge was entitled as a matter of principle to impose life sentences.

2. That the trial judge did not impose the maximum sentence as he imposed concurrent sentences when he was entitled to impose consecutive sentences. Furthermore, the prejudice created by the newspaper articles did not effect the decision of the trial judge.

1

Mr Justice McCracken on the 21st day of May 2004

2

The accused pleaded guilty to ten sample charges of rape of three of his daughters and to two sample charges of sexual assault on a fourth daughter. It is accepted that these were sample charges only and that there were in fact one hundred and fifty three counts in the indictment. The offences took place over a period of some twenty years when his daughters were aged between six and twelve years. It is not necessary to set out the details of the offences in this judgment, but it is sufficient to say that they disclose a systematic and brutal pattern of sexual interference with young children by a person who was in a position to have total control over them. This must certainly be one of the worst cases of sexual abuse of young children by their father ever to come before the Courts.

3

The trial Judge sentenced the accused to life imprisonment in respect of each of the counts of rape and to five years imprisonment in respect of each of the counts of sexual assault. In doing so he said in the course of his decision:-

"Having regard to the breadth of the outrages and horrors in this case the systematic rape and sexual assault of four daughters over a period of twenty years resulting in the victim impact which we know of, it seems to me that any sentence imposed by me less than one of life imprisonment must fall to be described as not proportionate or less than proportionate with what I am dealing with. Accordingly in relation to all the rape counts I impose sentences of life imprisonment. And in respect of any sexual assault counts I impose sentences of five years imprisonment. All sentences to run concurrently."

4

In the course of the sentencing the learned trial Judge also referred to an earlier case in which he had imposed sentences of life imprisonment and fifteen years imprisonment to be served consecutively, which form of sentencing had been upheld by the Court of Criminal Appeal. He pointed out the fact that in the present case the sentences were to run concurrently which allowed an advantage from the accused's point of view, as if he were to impose consecutive sentences, that would deprive the accused of access to the parole board.

5

One of the accused daughters gave evidence, as was her right, and the Court had before it Victim Impact Reports of all four daughters, and the effect of the abuse on them is quite clearly seriously traumatic and lasting.

6

It is urged on the Court on behalf of the accused that, not only did he plead guilty, but that he made a comprehensive statement to the gardaí at the earliest opportunity, with the result that from a very early stage his daughters were aware that they would not have to go through the very disturbing experience of having to give evidence.

7

The Applicant relies in particular on two cases. In The People (DPP) v. Tiernan [1988] IR 250, where an accused was sentenced to twenty-one years imprisonment for rape, the Court reduced the sentence to one of seventeen years imprisonment. Finlay CJ said at page 255:-

"I have no doubt, however, that in the case...

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