DPP v O'D

• Jurisdiction: Ireland
• Judge: Mr. JusticeGeoghegan
• Judgment Date: 25 May 2000
• Neutral Citation: 2000 WJSC-CCA 3133
• Date: 25 May 2000
• Docket Number: [C.C.A. No. 105 and C.J.A. No. 17 of 1999]
• Court: Court of Criminal Appeal

DPP v. O'D

IN THE MATTER OF SECTION 2 OF THE CRIMINAL

JUSTICE ACT, 1993

and

IN THE MATTER OF:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

R. O'D.

Accused

and

DPP v. O'D

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

V.

R. O'D.

2000 WJSC-CCA 3133

Geoghegan J.

O'Sullivan J.

Finnegan J.

17CJA/99

BILL NO. CC 0003/99

105/99

THE COURT OF CRIMINAL APPEAL

Synopsis

Criminal Law

Criminal; sexual offences; applicant pleaded guilty to 10 counts of rape, buggery and indecent assault perpetuated upon his sisters; victims requested that accused not be given custodial sentence; D.P.P. applies for review of sentences on ground of leniency; defendant appeals against custodial aspects of sentences imposed; both matters dealt with together; whether fact that defendant receiving effective rehabilitative treatment should be considered when imposing sentence; whether there was a public interest in converting defendant into a permanently law abiding citizen where that seemed highly probable; whether appropriate to suspend sentences unconditionally.

Held: Appeal allowed; application for review refused; entirety of each of sentences imposed suspended conditionally; maintenance of family harmony to some extent a public interest especially having regard to value which Constitution places on the family; application refused strictly on condition that defendant complete rehabilitation course.

D.P.P. v. R. O'D. - CCA: Geoghegan J., O' Sullivan J., Finnegan J. - 25/05/2000 - [2000] 4 IR 361

Facts: The defendant had pleaded guilty to sexual offences committed on members of his family. The accused received one sentence of five years with four of the five years suspended. The defendant also received another sentence of three years with two of those years suspended and sentences of a year in respect of other offences. The Director of Public Prosecutions appealed against the sentences on the basis that they were too lenient. The defendant also appealed against the sentences.

Held by the Court of Criminal Appeal (Geoghegan J delivering judgment; O'Sullivan J and Finnegan J agreeing) in making the following orders. In the absence of a relevant statutory provision it was never mandatory on a trial judge to impose a custodial sentence. The sentences imposed in the case were prima facie lenient but this did not mean that they were wrong. The defendant himself had himself suffered sexual abuse when he was young. Both of the victims requested that the accused not be given a custodial sentence. The defendant was already receiving useful treatment from the Granada Institute and had made progress in this regard. There was a strong public interest in not sending the defendant to jail but strictly on condition that he completed his course and would be of good behaviour. The court would dismiss the appeal of the DPP and instead allow the defendant's appeal by suspending the entirety of the sentences imposed.

Citations:

CRIMINAL JUSTICE ACT 1993 S2

DPP V MCCORMACK UNREP CCA 18.4.2000

CRIMINAL JUSTICE ACT 1993 S5

DPP, PEOPLE V TIERNAN 1988 IR 250

DPP, PEOPLE V PAYNE UNREP CCA 27.7.1999

DPP, PEOPLE V S (M) UNREP CCA 1.2.2000

1 JUDGMENT of the Court delivered by Mr. JusticeGeogheganon the 25th day of May, 2000.

2 As the heading indicates the Court has decided to deliver a single judgment in two appeals which were before it involving the same parties and the arguments in which to a large extent overlapped. The word "appeals" in this context is being used in a loose sense because the first of the two cases is technically an application for review brought by the Director of Public Prosecutions under Section 2 of the Criminal Justice Act, 1993on the grounds that certain sentences imposed in a prosecution against the above-named R. O'D. were too lenient. The second case is an appeal brought by the said R. O'D. against the custodial aspects of his sentences pursuant to a Certificate of the trial judge (Carney J.) giving leave to appeal on the following certified grounds:-

"For the opinion of the Court of Criminal Appeal in the circumstances of this case (this being a crime committed within the family, and havingregard to the strong representation of the victim) as to whether it is mandatory on me that a custodial sentence be imposed."

3 The accused had pleaded guilty at an early stage to each of the counts for which he was sentenced in the Central Criminal Court. In relation to two counts of buggery and two counts of rape committed on a particular sister of the accused one T.D. the learned trial judge imposed a sentence of five years imprisonment but suspended four of those five years unconditionally. In relation to two counts of indecent assault upon the same sister the judge imposed a sentence of three years but suspended two of those three years unconditionally. In relation to the four other counts to which the accused pleaded guilty two of which were indecent assaults on the same sister and two other indecent assaults on another sister E. O'D., the judge imposed a twelve month prison sentence suspending six months of it unconditionally. All these sentences were to be concurrent and to date from the 20th May, 1999. As the learned trial Judge had thought fit to grant a Certificate of Leave to Appeal he ordered that the bail should continue to the Court of CriminalAppeal.

4 It is important that this Court should make clear at the outset that in the absence of a statutory provision to that effect, it is never mandatory on a trial judge to impose a custodial sentence. This principle was recently reaffirmedby this Court in D.P.P. v. McCormack unreported Judgment delivered by Barron, J. the 18th April, 2000. Needless to say that does not mean that a trial Judge is at large as to whether he or she imposes a custodial sentence or not. Not to impose a custodial sentence in a particular case may amount to an error in principle which would be capable of correction by this Court. But there is no question of an absolute rule that for certain types of offences a custodial sentence ismandatory.

5 Even without going into the facts, the sentences imposed in this case are obviously prima facie lenient but that does not mean that they are wrong. To explain the context in which the sentences came to be imposed it is necessary to outline briefly the facts and circumstances of the case.

6 The accused was one of fourteen children in the family all born within an eighteen year period. The family lived in a reasonably substantial house with five bedrooms. They were a farming family and the father and mother are now very elderly but still alive. The accused was himself sexually abused and in particular was buggered by a brother six years older than himself from an early age. Insofar as T.D. was concerned the offences ranged from 1975 to 1983 with the buggeries taking place in 1978 and the rapes in the 1980's. At the commencement of the offences T. was only seven and a half years of age. Theaccused was born on the 3rd July, 1958 and would therefore have been about seventeen years of age when the offences commenced. While the position may not be entirely clear it seems possible that he was still at that stage being sexually abused by his older brother. That abuse commenced when he was very young. T.D. was born on the 22nd September, 1968 and her sister E. O'D. was born on the 16th April, 1965. The offences against E. O'D. were committed between 1971 and 1977 approximately. T.D. and E. O'D. have both been living abroad for manyyears.

7 The offences were never complained about to the parents but eventually the two sisters decided on a return visit to Ireland to confront the accused. So that he would fully accept his responsibility they ultimately...