DPP v McCabe (No. 2)

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeKearns J.
Judgment Date13 July 2005
Neutral Citation[2005] IECCA 90
Docket Number[213 CJA/04]
Date13 July 2005

[2005] IECCA 90

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

MacMenamin J.

[213 CJA/04]
DPP v McCABE (NO 2)
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT

AND

JOHN MCCABE
(No. 2)
RESPONDENT

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S3

CRIMINAL JUSTICE ACT 1993 S2

SEX OFFENDERS ACT 2001

DPP v CAREY UNREP CCA 10.05.2005

CRIMINAL JUSTICE ACT 1993 S6

DPP v TIERNAN 1988 IR 250 1989 ILRM 1988 DULJ 155

DPP v Y (N) 2002 4 IR 309

C (P) v DPP UNREP HIGH COURT O'NEILL 22.2.2002 2002/5/1004

CRIMINAL LAW

Sentencing

Review of sentence - Whether exceptional circumstances to justify imposition of non-custodial sentence - Whether mandatory to impose sentence of imprisonment - Whether matter for court to determine appropriate sentence having regard to compensation offered or made - Criminal Justice Act 1993 (No 6), ss 2 and 6 - Application by prosecutor for review of sentence refused (213/2004 - CCA - 13/7/2005) [2005] IECCA 90 People (DPP) v McCabe

Facts: The DPP applied for a review of a sentence imposed by the Central Criminal Court. The respondent was sentenced to 4 years imprisonment, which said sentence was suspended when evidence was given to the trial judge that the victim was prepared to accept a sum of Eur15,000 offered to her in Court by the respondent as compensation. The trial judge had invited counsel for the DPP to discuss with the victim that the likely consequence of the acceptance of the money would be the imposition of a non-custodial sentence. The DPP contended that victims in circumstances of this nature should not be drawn into any sort of pro-active role in determining or negotiating the amount of any compensation which an accused person may offer with a view to mitigating sentence.

Held by the Court of Criminal Appeal (Kearns J; Budd and MacMenamin JJ) in refusing the application that in the quite exceptional circumstances of the case, although the trial judge erred in principle in the manner in which he approached sentence, the sentence actually imposed was appropriate. The Court was satisfied that there was no jurisprudence, principle or practice which rendered the payment of compensation to the victim of a sexual assault inconsistent with the imposition of a custodial sentence.

Reporter: R.W.

JUDGMENT of the court delivered by
Kearns J.
on the 13th day of July, 2005
1

This is an application brought by the applicant for a review of the sentence imposed on the respondent in the Central Criminal Court (Carney J.) on the 11th October, 2004, the respondent having pleaded guilty on the 10th June, 2004, to aggravated sexual assault on a female foreign national in Dundalk on the 13th September, 2002, the said assault being contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. At the conclusion of the sentencing hearing, and in circumstances where the respondent had offered compensation to the victim in the sum of €15,000, which said sum the victim had accepted, the learned trial judge imposed a term of 4 years imprisonment, but suspended same on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of 3 years. He also ordered that the respondent's name be entered in the Sex Offender's Register.

2

The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act,1993, which provides:-

"If it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence."

3

The facts of the case were as follows. The victim was employed as a shop assistant in a 24 hour shop in Dundalk. At approximately 5 a.m. on the morning of the 13th September, 2002, the respondent entered the shop enquiring how he could get a taxi. The victim directed him to a nearby rank, but some minutes later the respondent re-entered the shop and bought a mineral. Having left, he returned on a third occasion and closed the door of the shop behind him. He then grabbed and pushed his victim, telling her he wanted sex with her. She tried to get away, but he pushed her into a store area towards the rear of the shop premises. He knocked her to the floor and she hit her head on the floor. He told her that he had a knife. He then removed her shoes, trousers and underwear and a portion of his own clothing. She made a number of efforts to get up but was pushed back down. Due to the fact he had consumed an enormous amount of alcohol, it appears he was unable to achieve an erection and a very frightening episode was brought to an end when some other person entered the shop premises.

4

Shortly afterwards, within 30 minutes of this attack, the respondent was arrested by Dundalk Gardaí and immediately admitted to having done something"awful stupid - my life is over".

5

He was brought following his arrest to Dundalk Garda Station where he made a full statement after caution. In the statement he recorded how he had been drinking and gambling throughout the previous day in Cootehill. Towards the end of the evening, he heard talk about a lap-dancing club in Dundalk and decided to go there. He arrived some time after midnight and remained in the lap-dancing club until about 4a.m.. He was then unable to get a taxi. In his statement he blamed the fact that he had drunk so much and the effects of witnessing lap-dancing for what had happened. The respondent is a farmer and married man who had a 2 year old child at the time and no previous convictions.

6

Two victim impact reports were tendered to the sentencing judge, dated 17th August, 2003, and 30th July, 2004, respectively.

7

From these reports it is clear that the victim was badly traumatized by the sexual assault which had lasted between 20-25 minutes. The victim had great difficulty in sleeping thereafter and felt contaminated as a result of being touched by the respondent. She would take showers and wash herself up to 5 or 6 times a day and wanted to scratch her skin off as her assailant had touched it. She attended the Rape Crisis Centre for about 5 months but didn't find it helpful. She was diagnosed as suffering from post-traumatic stress disorder to a severe degree. She was particularly worried that people might think that she was responsible for the assault. She was prescribed medication by a psychiatrist and the later report of Michael Dempsey, senior clinical psychologist, strongly recommends that the victim engage in further counselling in relation to the assault.

8

In the course of the sentencing hearing on the 11th October, 2004, Michael O'Higgins, senior counsel for the respondent, advised the court that the respondent had had a problem with alcohol abuse, particularly when, as in this case, he engaged in binge-drinking, but he had remained alcohol-free since the incident. He had no previous convictions and had not since come to the attention of the gardaí in any manner whatsoever. He called his client to the witness box to apologise to the victim and to express his remorse for the hurt which he had caused to his victim. Counsel further intimated to the sentencing judge that the respondent had in court a bank draft in the sum of €15,000 payable to the victim, and advised the sentencing judge that the victim was willing to accept it.

9

When the plea in mitigation was concluded, the learned trial judge addressed counsel for the Director of Public Prosecutions as follows:-

"Mr. Justice Carney:

Mr. Segrave, I don't care how this money is dressed up or what it is called, has the injured party addressed the issues that arise if I allow it to be accepted?

Mr. Segrave:

I don't know if she has my lord.

Mr. Justice Carney:

It is not my practice to combine payment of monies with imprisonment. Do you wish to consult with her?

Mr. Segrave:

Yes, if your lordship would give me five minutes"

10

There then followed a short adjournment, following which the sentencing judge was advised by counsel for the Director that the victim was prepared to accept the sum offered "knowing" what the consequences of the acceptance might be.

11

Thereafter in imposing sentence the learned trial judge declared the accused to be a sex offender pursuant to the Sex Offenders Act,2001, and directed the issue of a certificate in accordance with the provisions of the Sex Offenders Act, 2001. He noted that the accused did not have a knife, but nonetheless had told his victim that he had a knife in conjunction with his demand for sex. He then continued:-

"Had I been proceeding to sentence, I had determined that the sentence I was going to impose was either one of 4 years or 5 years, I had not quite decided before the intervention of the €15,000 came into the case, and I would have given him the usual consideration that any person is given who brings in his plea at an early stage, thus enabling the court to devote his slot to dealing with some other violent individual… . In this case, a sum of €15,000 has been put together by way of compensation. Now Mr. O'Higgins endeavored to use another term, but it is only playing games to call compensation something else. I have indicated that it is not my practice to combine the payment of money with imprisonment and the victim has had the opportunity to make a free choice in this matter. She has decided to accept the €15,000. Now that being so, I impose a sentence of 4 years imprisonment, suspended on the accused entering a bond in his own sum of €1,000 to keep the peace for the next 3 years."

12

In the course of the appeal before this court, counsel on behalf of the Director of Public...

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