DPP v Finn

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.
• Judgment Date: 24 November 2000
• Neutral Citation: [2000] IESC 75
• Date: 24 November 2000
• Docket Number: [S.C. No. 228 of 1999]

[2000] IESC 75

THE SUPREME COURT

Keane C.J.

Murphy J.

McGuinness J.

Hardiman J.

Fennelly J.

228/99

DPP v. FINN

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

PADRAIG FINN

Defendant/Appellant

Citations:

CRIMINAL JUSTICE ACT 1993 S3

CRIMINAL JUSTICE ACT S2

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) ACT 1991 S2

OFFENCES AGAINST THE PERSON ACT 1861 S47

CRIMINAL JUSTICE ACT 1993 S1

DPP V KELLY

CRIMINAL JUSTICE ACT 1993 S2(1)

WINDSON V BOADEN 1953 90 CLR 345

O'BRIEN V GOVERNOR OF LIMERICK PRISON 1997 1 ILRM 349

CRIMINAL JUSTICE ACT 1993 S1(1)

CONSTITUTION ART 13.6

CRIMINAL JUSTICE ACT 1951 S23

DPP V FAGAN UNREP CCA 7.11.1977

DPP V O'TOOLE UNREP CCA 26.5.1978

DPP V CAHILL 1980 IR 8

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S11

DPP V SHEEDY 2000 2 IR 184

DPP V AYLMER 1995 2 ILRM 624

CRIMINAL JUSTICE ACT 1951 S3

PRISON RULES 1947 r38(1)

WOODS, STATE V AG 1969 IR 385

CRIMINAL JUSTICE ACT 1999 S5

CRIMINAL JUSTICE ACT 1993 S2(2)

ATTORNEY GENERALS REFERENCE (NO 22 OF 1992) 1994 1 AER 106

CRIMINAL JUSTICE ACT 1993 S1(2)

CONSTITUTION ART 15.2.1

O, STATE V O'BRIEN 1973 IR 50

RSC O.86 r3

O'MALLEY ON SENTENCING

LAW REFORM COMMISSION REPORT ON SENTENCING 53/1996

CONSTITUTION ART 13

Synopsis:

- [2001] 2 IR 25 - [2001] 2 ILRM 211

The defendant had been convicted of certain offences and had been sentenced to seven years and three years imprisonment with a review date built in. At the review date the defendant was released upon furnishing various undertakings. The Director Of Public Prosecutions applied to have the sentence reviewed on the grounds that it was too lenient. This application was granted in the Court of Criminal Appeal and the suspension periods in the sentences were abolished. On appeal to the Supreme Court, Chief Justice Keane held that any appeal by the State against a sentence must be taken within 28 days of the imposition of the original sentence. The Court of Criminal Appeal was wrong in law in substituting the sentences in question and the appeal would be allowed. The incorporation of a review period in sentences which results in the suspension of the balance of sentences offended against the principle regarding the separation of powers and this practice must be discontinued.

1 JUDGMENT of the Court Delivered On The 24th Day November 2000 by Keane C.J.[nem diss]

The factual background

2 This is an appeal brought by the defendant pursuant to s. 3 of the Criminal Justice Act, 1993from the determination by the Court of Criminal Appeal of an application under s. 2 of that Act, the court having certified that its determination involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court.

3 The applicant was convicted by the Central Criminal Court (Lavan J.) on a plea of guilty in respect of charges of

4 (a) rape contrary to s. 48 of Offences Against the Person Act, 1861 as amended by s. 2 of the Criminal Law (Rape) Act, 1991 and

5 (b) assault occasioning actual bodily harm contrary to s. 47 of Offences Against the Person Act, 1861.

6 The details of the rape and the assault were as follows. The applicant and the injured party, M. were on the beach at Rosses Point, Co. Sligo in the early hours of the 18th January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girl friend's child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had been raped and did not become so aware until a subsequent medical examination showed evidence of semen in her vagina.

7 The applicant, when first questioned by the gardai, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the Victim Impact Report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.

8 At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother's second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with whom he lived in a flat and with whom he had a child who was three weeks old at the date of the offences to which he was now pleading guilty.

9 The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating Garda sergeant, of the applicant's mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.

10 Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten "to within an inch of her life". He also accepted entirely the conclusions in the Victim Impact Report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and that he had also entered the witness box and given sworn evidence as to his remorse for what he had done. The trial judge also accepted that the applicant's family would have been prepared to pay compensation, so far as their means allowed, to M. but that M. and her family were not prepared to accept such compensation, a decision which the trial judge said that he understood and respected.

11 The trial judge concluded that the appropriate sentence in this case was one of seven year" imprisonment in respect of the first count and three years" imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider "reviewing how I will deal with the remainder of the sentence". He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had. undergone and he would also require a report at that stage on the injured party.

12 When the matter came before the court again on October 22nd, 1998, a further Victim Impact Report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.

13 There was also a report before the trial judge of Mr. Paul Murphy, a clinical psychologist concerned in the Sex Offenders" Programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have "ongoing supervision in the community and access to appropriate professional support".

14 During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would...