DPP v M.J.

• Jurisdiction: Ireland
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 01 December 2022
• Neutral Citation: [2022] IESC 50
• Court: Supreme Court
• Docket Number: Record no. 2022/009

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

M.J.

Appellant

[2022] IESC 50

Dunne J.

Charlton J.

O'Malley J.

Baker J.

Woulfe J.

Record no. 2022/009

THE SUPREME COURT

Sentencing – Indecent assault – Totality – Appellant seeking to appeal against sentences – Whether the principle of totality was taken into account

Sentencing – Indecent assault – Totality – Appellant seeking to appeal against sentences – Whether the principle of totality was taken into account

Facts: The appellant, in October 2018, was convicted by a jury of a number of indecent assaults committed in the summer of 1978. The appellant appealed against the sentences imposed on foot of those convictions. The Court of Appeal did not find that the trial judge had erred in his selection of the headline sentence, or in the imposition by him of consecutive sentences. However, it found that the trial judge erred in believing that there was no mitigation that could reduce the appropriate headline sentence. The Court of Appeal considered that only a “limited intervention” was necessary to redress that error and to acknowledge such mitigatory factors as it determined to be present. In particular, it referred to the fact that the appellant had not offended during the 40-year period between the offences and the trial. It reduced the cumulative total of the consecutive sentences imposed in the trial court by suspending part thereof. The appellant appealed to the Supreme Court, contending that the Court of Appeal erred in the process adopted by it, and arguing that it should have undertaken a fresh consideration of sentence; in so doing it should have reassessed the question of whether this was a case for consecutive sentences, and should have taken greater account of certain factors specific to the case such as the antiquity of the charges, and the application of the totality principle.

Held by the Court that it could not discern from either the transcript of the Circuit Court or the judgment of the Court of Appeal that the principle of totality was taken into account. The language of the judgment, expressly resting the decision on the age and lack of criminal convictions of the appellant, did not seem to the Court to leave any scope for inferring that it was. The sentence as it stood was one of eight years and nine months, and the Court did not consider that it would be appropriate to describe it simply as a six-year sentence, thus ignoring the suspended portion. Normally, that portion would be related to the specific mitigatory or rehabilitative aspects of a case, although the Court did not rule out the relevance of deterrence in some cases. The Court held that the overall sentence, including the suspended element, must reflect the sentencing court’s overall assessment of the gravity of the case and the circumstances of the accused. The Court held that an accused person should not be subjected to the possibility that he or she may have to serve a longer sentence than the sentencing court believes they merit. Therefore, the Court held that, in this case, the result was that the sentence was one that equated to many rape or buggery sentences after trial in the Central Criminal Court. The Court did not suggest that no case involving multiple indecent assaults could ever compare in gravity with such matters, and should not be taken as making a finding that the case under consideration did not. However, it was a feature that the Court thought would require some explanation and rationalisation in the light of the totality principle. The absence of such explanation or rationalisation seemed to the Court to amount to an error in principle such that the decision of the Court of Appeal could not stand.

The Court held that as both the trial judge and the Court of Appeal fell into error in not considering the totality of the sentences imposed, the Court should fix a hearing date for the purpose of hearing submissions on the appropriate sentence.

Appeal allowed.

Facts: The appellant, in October 2018, was convicted by a jury of a number of indecent assaults committed in the summer of 1978. The appellant appealed against the sentences imposed on foot of those convictions. The Court of Appeal did not find that the trial judge had erred in his selection of the headline sentence, or in the imposition by him of consecutive sentences. However, it found that the trial judge erred in believing that there was no mitigation that could reduce the appropriate headline sentence. The Court of Appeal considered that only a “limited intervention” was necessary to redress that error and to acknowledge such mitigatory factors as it determined to be present. In particular, it referred to the fact that the appellant had not offended during the 40-year period between the offences and the trial. It reduced the cumulative total of the consecutive sentences imposed in the trial court by suspending part thereof. The appellant appealed to the Supreme Court, contending that the Court of Appeal erred in the process adopted by it, and arguing that it should have undertaken a fresh consideration of sentence; in so doing it should have reassessed the question of whether this was a case for consecutive sentences, and should have taken greater account of certain factors specific to the case such as the antiquity of the charges, and the application of the totality principle.

Held by the Court that it could not discern from either the transcript of the Circuit Court or the judgment of the Court of Appeal that the principle of totality was taken into account. The language of the judgment, expressly resting the decision on the age and lack of criminal convictions of the appellant, did not seem to the Court to leave any scope for inferring that it was. The sentence as it stood was one of eight years and nine months, and the Court did not consider that it would be appropriate to describe it simply as a six-year sentence, thus ignoring the suspended portion. Normally, that portion would be related to the specific mitigatory or rehabilitative aspects of a case, although the Court did not rule out the relevance of deterrence in some cases. The Court held that the overall sentence, including the suspended element, must reflect the sentencing court’s overall assessment of the gravity of the case and the circumstances of the accused. The Court held that an accused person should not be subjected to the possibility that he or she may have to serve a longer sentence than the sentencing court believes they merit. Therefore, the Court held that, in this case, the result was that the sentence was one that equated to many rape or buggery sentences after trial in the Central Criminal Court. The Court did not suggest that no case involving multiple indecent assaults could ever compare in gravity with such matters, and should not be taken as making a finding that the case under consideration did not. However, it was a feature that the Court thought would require some explanation and rationalisation in the light of the totality principle. The absence of such explanation or rationalisation seemed to the Court to amount to an error in principle such that the decision of the Court of Appeal could not stand.

The Court held that as both the trial judge and the Court of Appeal fell into error in not considering the totality of the sentences imposed, the Court should fix a hearing date for the purpose of hearing submissions on the appropriate sentence.

Appeal allowed.

Judgment of Ms Justice Iseult O'Malley delivered on the 1 ^st of December, 2022

Introduction

1 In October 2018 the appellant was convicted by a jury of a number of indecent assaults committed in the summer of 1978. This appeal is concerned with the sentences imposed on foot of those convictions, and raises issues concerning the proper approach to be taken in sentence appeals where an error in principle on the part of the trial judge has been identified. In this case the Court of Appeal did not find that the trial judge had erred in his selection of the headline sentence, or in the imposition by him of consecutive sentences. However, it found that the trial judge erred in believing that there was no mitigation that could reduce the appropriate headline sentence. The Court of Appeal considered that only a “limited intervention” was necessary to redress that error and to acknowledge such mitigatory factors as it determined to be present. In particular, it referred to the fact that the accused had not offended during the 40-year period between the offences and the trial. It reduced the cumulative total of the consecutive sentences imposed in the trial court by suspending part thereof.

2 The appellant contends that the Court of Appeal erred in the process adopted by it, and argues that it should have undertaken a fresh consideration of sentence. In so doing it should have reassessed the question of whether this was a case for consecutive sentences, and should have taken greater account of certain factors specific to the case such as the antiquity of the charges, and the application of the totality principle.

3 I have come to the conclusion that the Court of Appeal did indeed fall into error. This judgment gives my reasons. However, the analysis here set out is incomplete, with certain principles being stated in the abstract without being applied to the circumstances of this case. That is because I propose that this Court should now undertake the re-sentencing of the appellant, and give a further written judgment when sentence has been finalised.

Factual background

4 In February 2019 the appellant was sentenced on five counts of indecent assault. The charges on the indictment were seen as sample counts in circumstances where the offences were alleged to have been committed on a frequent basis over a period of about four months in the course of 1978. The...