DPP v Egan

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date18 December 2000
Neutral Citation2000 WJSC-CCA 2498
Date18 December 2000

2000 WJSC-CCA 2498

THE COURT OF CRIMINAL APPEAL

Hardiman J.

O'Sullivan J.

O'Caoimh J.

CCA No. 6CJA/00
DPP v. EGAN
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE
ACT 1993 AND IN THE MATTER OF BILL NO. 29/99

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

and

JOHN JOE EGAN
Respondent

Citations:

CRIMINAL JUSTICE ACT 1993 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S4

OFFENCES AGAINST THE PERSON ACT 1861 S61

CRIMINAL PROCEDURE ACT 1967

CRIMINAL JUSTICE ACT 1988 (UK)

GRIFFITHS V R 1977 137 CLR 293

DPP V MCCORMACK UNREP CCA 10.4.2000

DPP V BYRNE 1995 1 ILRM 279

DPP V S UNREP CCA 18.1.1999

DPP V CONNOLLY UNREP CCA 25.11.1996 1999/7/1558

O'MALLEY ON SENTENCING (2000)

R V BARTKOW 1978 1 CRS 36 (CANADA)

DPP V SARGEANT 1974 60 CAR 74

Synopsis

Criminal Law

Criminal; sentencing; undue leniency; applicant applied pursuant to s.2 Criminal Justice Act, 1993 to review sentences imposed on respondent; respondent was sentenced to immediate custodial sentence of three months, the balance of the twelve month sentences imposed in respect of counts of gross indecency, buggery and harassment being suspended; respondent, a first offender of previous good character, had already been released from prison when application came on for hearing; whether sentence imposed unduly lenient, in light of the gross indecency offences being the most serious charged and in view of the fact that the mitigating circumstances would preclude the imposition of more than half the maximum of two years imprisonment;

Held: sentence unduly lenient; however in present circumstances of case, trial judge's sentence affirmed with added condition that defendant undertake to abide by the advices of psychologist in every respect during period of suspension.

DPP v. Egan - CCA: Hardiman J., O'Sullivan J., O'Caoimh J. - 18/12/2000 - [2001] 2 ILRM 299

1

JUDGMENT of the Court delivered the 18th day of December, 2000.

2

This is an application by the Director of Public Prosecutions pursuant to Section 2 of the Criminal Justice Act,1993for a review of the sentences passed on the Respondent Galway Circuit Court on the 24th February, 2000. The Respondent had pleaded guilty to five counts on Bill No. ES 29/99, Galway. Where:-

3

(1) Count no. 1, alleging offence of harassment contrary to Section 10 of the Non Fatal Offences against the Person Act, 1997. These alleged 7 incidents of harassment by persistently following and watching a named school boy between the months of June and September, 1997.

4

(2) Count No. 2 alleging gross indecency to Section 4 of the Criminal Law (Sexual Offences) Act,1993. This offence took place between the 1 st July, 1995 and the 31st July, 1995 at Eyre Square with a named person who is under the seventeen.

5

(3) Count No. 10 alleging an offence of gross indecency between the 1st November 1995 and the 30th November, 1995 at a place in Rahoon, Galway, with the same named person.

6

(4) Count No. 17 alleging gross indecency between the 1st June, 1996 and the 30th June, 1996 at a place in Barna, Galway, with the same named person and

7

(5) Count No. 20, being the offence of buggery contrary to Section 61 of the Offences against the Person Act, 1861, alleging this offence on a date unknown between the 1st January 1988 and the 31st December 1989 at Dangean, Galway with a third named person.

8

The five counts formed part of an indictment containing a total of 25 counts. The Defendant had apparently been returned for trial on 24 of those counts and the 25th one was added later as the prosecution were entitled to do under the Criminal Procedure Act,1967. Apart from the first count, these alleged gross indecency with the second-named person, and gross indecency and buggery with the third.

9

The matter came on for trial on the 22nd February, 2000 before His Honour Judge Moran at Galway Circuit Criminal Court. After legal submissions, the learned trial judge agreed to sever count 1 on the indictment, being the only count in relation to the first-named person and also being the only count not to allege sexual contact, from the rest. The prosecution elected to proceed on the remaining counts, leaving count no. 1 over.

10

Counsel for the prosecution then opened the case. This was followed by an application on the part of the defence to discharge the jury. While this application was pending, over the luncheon interval, it appears that agreement was come to between prosecution and defence as a result of which the accused was re-arraigned on the counts set out above and pleaded guilty to them. The remaining counts were allowed to stand over. Presumably they were the subject of anolle prosequi at a later time. It was stated without contradiction on the hearing of this appeal that the counts pleaded to were sample counts, although this does not appear on the transcript.

11

In respect of these offences the Defendant received the following sentences:-

12

(a) Twelve months in each of the counts of gross indecency, the last nine months of each twelve month sentence being suspended,

13

(b) Twelve months on the count of buggery, to run concurrently with the sentence imposed for the count of gross indecency, and suspending the sentence fully.

14

(c) Twelve months on the count of harassment, to run consecutive to the other sentence, and being suspended.

15

It follows that there was an immediate custodial sentence of three months imprisonment, the balance of the sentences being suspended on the usual terms in relation to good behaviour. If they were activated, the twelve month sentence for harassment would have run consecutively to the other sentences.

The Director appeals on the following grounds:-
16

(a) That the sentences imposed was (sic) unduly lenient having regard to all the circumstances of the case, including the seriousness of the charges and the circumstances attending the commission of the offences.

17

(b) That the said sentence did not adequately reflect the grave nature of the charges and the consequences for the victims and families of the victims of the offences,

18

(c) That the learned trial judge erred in principle in failing to give any sufficient weight to the evidence of the prosecution as to the circumstances of and surrounding the commission of the offences admitted, including the places where the offences took place, the manner of targeting of the victims of the offences, the fact that the accused paid money to two of the victims of the offences, the age of the victims, the age of the accused and the requirement of the law that the public and in particular persons under the age of seventeen should be protected from the criminal activities of the accused.

19

(d) The length of the sentences of imprisonment did not reflect the seriousness of the offences, and were unduly lenient and were substantial departures from what would be regarded as the appropriate sentence in all the circumstances of the case.

20

The fact that homosexual acts, between consenting adults, are no longer criminal offences is quite irrelevant to the present charges. The essence of the bulk of these charges is that they were committed with a person under the age of 17. Boys below this age require the protection of the law, even against themselves.

21

It was common case on the hearing of this appeal that two matters of significance had occurred since the hearing before the learned Circuit Court Judge. These are:-

22

(a) The Defendant was taken into custody immediately after the hearing and served the sentence of three months imprisonment. He was in fact in custody for ten weeks.

23

(b) The Defendant has now lost his employment with Galway Corporation as a direct result of his conviction.

24

It appears from the summary of the charges, the offences took place in the following date order:-

25

The single offence of buggery took place between January 1988 and December 1989,

26

The three counts of gross indecency took place between the 1st July, 1995 and the 30th June, 1996,

27

The offence of harassment took place between June and September, 1997.

28

It was also a feature of the case that in a statement alleging multiple sexual contacts with various persons had been made by the young man named in the buggery charge as long ago as May, 1991. These people were stated in evidence to compose"quite a cross section of Galway society". The Defendant was not the first person with whom this young man was involved. He apparently become involved in sexual activities for money after he was no longer able to finance himself by stealing from his parents. In answer to a specific question from the trial judge, a Garda Superintendent confirmed that the other persons named in this young man's statement were not prosecuted and that"it was reasonable to suppose that this prosecution against Mr. Regan in respect of this young man (came about) because Mr. Regan was already being prosecuted in respect of the other offences". The Superintendent said "it was resurrected you might say".

29

The Defendant was born on the 6th August, 1942, so that he is now 58 years of age. He has no previous convictions. He was employed as a plumber in a permanent position with Galway Corporation's water section since March 1985. He is a married man with three children, a son and two daughters. The son, who is the eldest of the family and is now a qualified Accountant, gave evidence at the trial.

30

The Defendant was heavily involved in various community activities notably those centring on hurling. He played significant roles both as referee, administrator and fundraiser and, according to the prosecution, was popular and well known in the community. His family life was very successful and his considerable efforts in those regards were described in detail by his son. The psychologist who gave evidence described him as a person of...

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