DPP v James Maher

 
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[2015] IECA 43

THE COURT OF APPEAL

The President

Sheehan J.

Edwards J.

[CJA23/13]
DPP v Maher
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
V.
JAMES MAHER
RESPONDENT

23CJA/2013 - Ryan Sheehan Edwards - Court of Appeal - 10/2/2015 - 2015 IECA 43

Criminal law - Application by DPP - s. 2 of the Criminal Justice Act 1993 - Review of sentence - Whether unduly lenient - Whether sentence inadequate and unjustifiable - s.62 Offences Against the Person Act 1861 - DPP v. S (M) (No. 2) [2007] 4 I.R. 369 considered - The maximum penalty for indecent assault on a male person at the time in question - Consecutive - v - concurrent

1

This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act1993, for a review of sentences imposed on the respondent which the applicant contends were unduly lenient.

2

On 14th February 2012, the respondent pleaded guilty to five counts of indecent assault in respect of one injured party. On 10th July 2012, he pleaded guilty to a further fourteen counts of indecent assault committed on another injured party. The first set of offences took place during 1984, in a town in County Clare. In respect of the second injured party, the offences occurred between 1st January 1982 and 17th March 1984 in County Clare. The sentence hearing took place on 19th November 2012, and the learned sentencing judge gave judgment on 14th January 2013, when he imposed sentences of two years imprisonment on each of the five counts in respect of the first injured party, and on each of the fourteen counts in respect of the second. The judge ordered that all of the sentences were to run concurrently.

3

In coming to his decision, the learned judge considered that the maximum sentence he could impose for each offence was imprisonment for two years. He had been informed by Counsel for the Director that this was the maximum sentence applicable at the time when the offences were committed. A critical question in this application is whether that was correct. The Director's Counsel submitted that the relevant maximum sentence was ten years imprisonment. Counsel for the respondent accepted that the prosecution was not bound on this application by the submission made at trial that the Director now contends was incorrect. He did not, however, concede that the appropriate maximum sentence was ten years imprisonment.

4

If the Director's contention is correct, it follows that the learned trial judge proceeded on an incorrect basis in thinking that he was actually imposing the maximum sentence permissible for any one count. If the maximum sentence was two years imprisonment, the question nevertheless arises as to whether the sentences imposed were overall unduly lenient and, specifically, whether at least two of the sentences should have been ordered to run concurrently since there were two separate victims who were subjected by the respondent to repeated indecent assaults.

5

The respondent was in his early 40s at the time when the offences occurred. He was the manager of an underage hurling team. In that connection, he met one of the victims of the offences. He knew the boy's family and was a visitor to the house and went drinking with his father. He used to drive the boy to hurling training and the abuse began with the respondent fondling him during these journeys. The abuse escalated to masturbation and oral sex. The boy was 11 years old when the abuse began and he was 12 years and 13 years at the time of the offences in the indictment to which the respondent pleaded guilty.

6

The accused met the second boy when he gave him a lift in his car, The respondent gave him a false name and arranged to meet him again. The abuse in this case escalated in similar fashion. The respondent brought the boy to the offices where he worked and abused him in the toilets there. On another occasion, he brought him to Dublin and they stayed overnight in a guesthouse, sleeping in the same bed, with the respondent pretending to be the boy's father.

7

One of the injured parties provided a victim impact statement which was read to the Court and the other gave evidence. In each case, the abuse had a profound and long-lasting impact. They made attempts on their lives. They suffered devastating psychological consequences and have been living with the consequences of the abuse ever since. They descended into drink and drug-dominated lives. One said that his life had been "totally messed" and he blamed his whole situation on what had happened to him. The other said that he sank into a deep depression as a result of trauma, shame, guilt and feelings of hopelessness. He has been diagnosed with depression and will need to remain on mediation permanently: "I suffered enormous pain and will always remain scarred by the actions of this man".

8

The respondent was aged 69 years at the date of sentence. He had unconnected previous convictions which the judge held were irrelevant. The trial judge noted that the respondent had been arrested in the first case, and in the second case, he had come voluntarily to the Garda station. He cooperated with the questioning to some extent. He denied that there had been masturbation but agreed otherwise on the sequence of events and that there had been inappropriate touching between him and the boys. It was also the case that he had made statements in which he gave further accounts of events which the injured parties had not remembered.

9

The judge found that there were significant mitigating factors. The respondent had indicated at an early stage that he would plead guilty and then did so which was a significant element in the case and a premium had to be put on the pleas of guilty. The respondent had insight into what he did and the impact on his victims. The offences were committed in the early 1980s, and if they had been disposed of at that time, they would have been dealt with under a different sentencing regime. The time lapse was also significant because the respondent had not reoffended since. He had no other relevant convictions. The judge felt that he had been "otherwise severely punished, suffering shame and humiliation in the small community where he lives".

10

The judge acknowledged that there were also aggravating features, in that, first, there were two victims. Secondly, the abuse occurred over a long period and it happened on frequent and regular occasions. There was a breach of trust, at least in the case of the boy who was on the hurling team in the GAA club. The respondent had abused his position as manager of the team and had ingratiated himself with the family. There were also some similar features in the case of the other boy because, again, the respondent groomed him and exploited his position as the owner of the car who could give the boy lifts and he engaged in deceit in pretending to be his father.

11

The learned trial judge imposed sentence on 14th January 2013, having given the matter consideration in the period from 19th November 2012, when the evidence was heard. He found it a difficult case. The judge imposed a prison sentence of two years on all counts to run concurrently. He said that this was "the maximum sentence but, recognising the mitigating factors, in particular his plea of guilty, I am not making any sentence consecutive to any other, which I would be entitled to do".

12

The Director submits that the sentence imposed was clearly inadequate and unjustifiable, and in those circumstances, the learned trial judge should have exercised his discretion to impose consecutive sentences.

13

The principal legislative measures are as follows:

(1) The Offences Against the Person Act 1861, provided at s. 62 that a person who was guilty of "any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable… to be kept in penal servitude for any term not exceeding 10 years…"

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