DPP v F.E. (No 2)

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Ms. Justice Iseult O'Malley
• Judgment Date: 26 February 2020
• Neutral Citation: [2020] IESC 5
• Docket Number: S:AP:IE:2018:000067 Court of Appeal record number 2016/219 [2018] IECA 53 Central Criminal Court bill number: CCC 2015 no 0009 [Supreme Court Appeal No: 67/2018]
• Court: Supreme Court
• Date: 26 February 2020

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/APPELLANT

- AND -

FE

(RAPE AND ASSAULT, DUBLIN)

ACCUSED/RESPONDENT

[2020] IESC 5

Clarke C.J.

McKechnie J.

Charleton J.

Clarke C.J.

Irvine J.

O'Malley J.

S:AP:IE:2018:000067

[2020] IESC

Court of Appeal record number 2016/219

[2018] IECA 53

Central Criminal Court bill number: CCC 2015 no 0009

[Supreme Court Appeal No: 67/2018]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Crime & sentencing – Sexual offences – Rape and sexual violence – Guidance as to appropriate sentence – Jurisdiction of the Court

Facts: The accused had been convicted of rape and sexual violence and had appealed his sentence and convictions. The appeal against conviction was unsuccessful but the appeal against sentence was successful in the Court of Appeal. The Supreme Court had found in an earlier judgment that the Court of Appeal had fallen into error, and now proceeded to resentence the accused in the light of the guidance in that earlier decision (see [2019] IESC 85).

Held by the Court, that the accused had not been able to show any error in the approach of the Central Criminal Court at first instance. As the reduction/alteration of his sentence by the Court of Appeal did not have a legal basis, the sentence of first instance would be restored. O’Malley J also gave a judgment in the matter in respect of jurisdiction and the appropriate approach of the Supreme Court where it finds an error in sentence at a lower stage.

Judgment of Mr Justice Peter Charleton delivered on Wednesday, 26 ^th of February 2020.

1 On December 6th 2019, this Court laid down sentencing guidance as to the proper approach by judges where the accused pleaded guilty to, or was found guilty by a jury of, rape. This judgment concerns the appropriate sentence for sexual violence relative to the guidance given by the Court in that judgment; [2019] IESC 85. Additionally, the accused has also challenged this Court's jurisdiction to review a sentence reduced, on an incorrect legal principle, as the Court has found, by the Court of Appeal in February 2018; [2018] IECA 53. To recap: the accused was the victim's husband. Apparently, it is contended, after a marriage lasting some nine years, the accused lost his job and became depressed. The extent of the contribution of that to his crimes was most properly considered by the trial judge in the High Court, Kennedy J, who sentenced the accused in June 2016, having heard the trial, at which the accused pleaded not guilty to the sexual violence count which is now the task of this Court to assess as to sentence. Hence, a considerable measure of deference to the trial judge's views is appropriate since adjudication with the parties testifying before the court yields a more real view of the situation than that of an appellate court assessing transcripts and documents in the context of legal submissions.

The crime appealed and its circumstances

2 It is important to briefly describe the facts of the various crimes. On 25 May 2014 a row occurred in the matrimonial kitchen. The husband produced a knife and threatened his wife that he would “cut open” her face. He ordered her upstairs and raped her. He had told her that if she rang the gardaí on her mobile phone that they would not arrive in time to save her. During the night, she pretended reconciliation. She was anxious to protect their child from the nasty scene. In the morning she went to the family law courts. He rang her and threatened to kill her the next day. For the events of the day of 25 May, three charges were laid: one count of rape, one count of threat to cause serious harm, and one count of threat to kill. There were also counts of threats on other occasions. The accused pleaded not guilty but was convicted at trial of all of these. On 9 June, the husband accosted the wife at a shopping centre and told her that the next time she saw him she would not see him coming and that he would be armed with a hammer. This was subject to a separate charge and conviction. Over that time there was constant checking by the husband of the wife's movements through smartphone technology. On 6 August the husband turned up carrying a bag at the wife's parents' home and demanded entry. Naturally, this was refused. The next day there were two visits to the parents' home where he first spoke to the wife's mother. On the second occasion he came back with the bag. Claiming this was a present for their child, he gained entry. He produced a hammer and struck the wife several times on the head and also hit her mother on the head. While the injuries from an attack of that kind could have resulted in death or serious injury, the result was multiple injuries to the wife including three deep lacerations and both she and her mother were brought to hospital. That attack was the subject of two charges to which the accused pleaded guilty.

What was appealed and by whom

3 What should now be noted is that none of the sentences handed down by Kennedy J in the High Court were appealed by the Director of Public Prosecutions on the grounds of undue leniency under s 3 of the Criminal Justice Act 1993. It was the accused who first appealed the jury convictions, unsuccessfully [2018] IECA 314, and then, secondly, appealed his sentence for rape claiming it was so disproportionately high as to be an error in principle. As the prior judgment of this Court disclosed, this resulted in the Court of Appeal reducing the sentence on an incorrect legal basis. The sentencing judge had imposed imprisonment on the accused: of 14 years on the rape as a headline sentence, with 2 years reduction for mitigation and 2 years suspended; in the result 10 years in jail with post-release supervision for 5 years, included in that the 2 years of suspended imprisonment. This headline sentence was incorrectly reduced by the Court of Appeal to 12 years, being 12 years with a mitigation of 2 years. In the result the Court of Appeal imposed 10 years, with 18 months suspended, making 8 years and 6 months for this very serious rape. The trial judge had imposed a sentence of 5 years for the threat to kill on the occasion of the rape; of 3 years for the threat to kill, delivered by phone the day after; of 5 years for the threat to kill at the shopping centre on 9 June; of 7 years and 6 months for the attempt to cause serious harm at the wife's parents' home on 7 August; and of 3 years and 6 months for assault causing harm to the wife's mother on that same day. These sentences were all concurrent. Neither the prosecution nor the defence appealed these sentences. Hence what the Court is dealing with is the appeal by the accused on the rape sentence which was reduced on an incorrect legal basis by the Court of Appeal.

4 Since there is no appeal by the Director of Public Prosecutions to argue to increase either the rape sentence or the other sentences imposed by Kennedy J or to alter the concurrent sentences to consecutive sentences, the task of the Court is to reassess the sentence for rape by correcting any error by the Court of Appeal. That is not to rule that in an appropriate case of an accused appealing a sentence that there cannot be a reassessment on the basis of error of principle either way. On this no comment is made.

Constitutional jurisdiction to reconsider sentence

5 This Court has found that the Court of Appeal erred in adjusting the sentence of the accused in consequence of his appeal. The vehicle whereby there have now been two appeals in this matter is in consequence of the Director of Public Prosecutions applying to this Court for leave to appeal the erroneous Court of Appeal decision. This Court granted leave to the have this further appeal on 15 February 2019 based on the contention by the Director of Public Prosecutions that a point of law of general public importance arose. This was reflected in the determination to grant leave on the rape sentence: “the Director's preferred proposal is that the sentence for the most serious offence should be set at a level reflecting the surrounding circumstances. It is said that this would be particularly appropriate in cases of marital rape, where there may well be a pattern of violence and abuse.”

6 Prior to the enactment of the 33rd Amendment to the Constitution on 1 November 2013, all appeals from the High Court were directly to the Supreme Court. Article 34.1 then provided, and continues to state, that justice should be administered in courts “established by law by judges appointed” under the Constitution and listed these courts as courts of first instance and a single court of final appeal. Then, as now, courts could include, under Article 34.3, those of “local and limited jurisdiction with a right of appeal as determined by law.” This now refers to the Circuit Court and the District Court which were subsequently established by legislation. Then, as now, courts of first instance under the Constitution included “a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” The Circuit Court and the District Court were not mentioned by name and are not now. Instead, the text prior to the 33rd Amendment stated that there should be a final court of appeal; which was then the Supreme Court. Hence Article 34.2 stated originally: “The Courts shall comprise Courts of First Instance and a Court of Final Appeal.” Article 34.4 originally stated that the “Court of Final Appeal shall be called the Supreme Court.” Article 34.4, post 33rd Amendment, now provides for a Court of Appeal. This Court of Appeal is now described as having “appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law”. But this is subject to that jurisdiction being “with such exceptions...