DPP v McLaughlin

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 13 July 2005
• Neutral Citation: [2005] IECCA 91
• Docket Number: [C.C.A. No. 25 of 2005]
• Court: Court of Criminal Appeal
• Date: 13 July 2005

[2005] IECCA 91

THE COURT OF CRIMINAL APPEAL

Kearns J.

Butler J.

O'Leary J.

[25CJA/05]

DPP v McLAUGHLIN

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 MCLAUGHLIN

RESPONDENT

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL JUSTICE ACT 1993 S2

SEX OFFENDERS ACT 2001

CRIMINAL JUSTICE ACT 1993 S6(1)

DPP v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155

Facts: The respondent pleaded guilty of a rape charge and received three years imprisonment which was suspended to five years, entered a personal bond of Eur 1,000 and to be of good behaviour. The trial judge was aware before sentencing of an offer of € 10,000 the respondent made available to the victim as compensation and which the victim had accepted. The victim was aware that accepting the compensation could mitigate the sentence. The DPP appealed the sentence as too lenient pursuant to section 2 of the Criminal Law (Rape) Act, 1981. The DPP argued that the trial judge erred in principle in that he gave undue or disproportionate weight to the acceptance by the victim of the compensation.

Held by the Court of Criminal Appeal (Kearns J; Butler and O'Leary JJ):

1. There is no jurisprudence, principle or practice which renders the payment of compensation to a victim inconsistent with the imposition of a custodial sentence. People (DPP) v C (unrep. 18 February 2002) followed.

2. There was an error of principle such as to require the court to consider what appropriate sentence should have been, due credit being given for the payment made of Eur 10,000.

Reporter: BDD

1 Kearns J. on the 13th day of July, 2005

2 The respondent was convicted on the 6 ^th day of December, 2004, when he pleaded guilty to rape contrary to s.48 of the Offences against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981.

3 On hearing evidence that the respondent had made available a sum of €10,000 by way of compensation, the learned trial judge imposed a sentence of imprisonment of 3 years on the respondent which he suspended for 5 years on the respondent entering into his own bond in the sum of €1,000 to be of good behaviour.

4 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."

5 Evidence of the facts in this case was given by Garda Michelle Lynch to the effect that the complainant had been out socialising with some friends on the evening of 9 ^th March, 2001. She and her friends accepted the offer of a lift home by 2 men, one of whom was the respondent. These men were previously unknown to the complainant, but were nonetheless invited into her home upon their arrival there. Sometime later the complainant retired, alone, to bed at approximately 3a.m. on 10 ^th March, 2001, having made it clear that she was not interested in any sexual contact with the respondent. Some time later she woke in her bed to find the respondent engaged in sexual intercourse with her. She immediately pushed him away and shouted for assistance. A male friend, who was in the bedroom next door, pulled the respondent away from the complainant. The respondent immediately ran downstairs and made good his escape. The gardaí were notified and thereafter located the respondent's vehicle and the respondent who was then arrested. He gave a version of events which suggested that the sexual acts had initially been with consent but that this consent had been withdrawn during the act of intercourse.

6 There was a victim impact report in court to which the trial judge was referred. In particular, the court's attention was drawn to that part of the report which indicated that the complainant had not merely been severely traumatised following her experience but also contracted a sexually transmitted disease, chlamydia, as a result of the assault. The victim had started a new job some 4 or 5 weeks before the rape and in the aftermath of the experience asked a friend to telephone her employers and inform them she was unable to attend work because she had been raped. However, her employers dismissed her. She remained out of work for 3 or 4 months as a result of her distress over the attack. She has been in continuous employment since that time, although she attended the Rape Crisis Centre for counselling for 2 years following the rape and found it helpful. She continues to have nightmares and other upsetting thoughts and images of the rape event. The report furnished by the senior clinical psychologist reporting in this case suggests that the victim, as of January, 2005, continues to suffer symptoms of post traumatic stress disorder to a moderate degree, despite having attended counselling for 2 years. The complainant declined to exercise her statutory right to give evidence on the sentencing hearing.

7 On cross-examination, Garda Lynch agreed that although the plea of guilty had been entered at a late stage (i.e. on the morning of the trial), an indication of same had been conveyed by the respondent in the week prior to the trial. Garda Lynch agreed that the complainant had thus been aware from that time that she was not facing the prospect of having to give live testimony or be subjected to cross-examination.

8 The respondent is a young man with 3 previous convictions of a minor nature, none of them sexual offences. A booklet of testimonials of his character was handed into court. As already mentioned, the respondent brought to court by way of compensation a sum of €10,000 which the victim accepted. This acceptance took place notwithstanding the fact that counsel for the applicant confirmed to the learned trial judge that it had been explained to the complainant that acceptance by her of such sum might have a strong bearing on sentence.

9 In passing sentence, the learned trial judge (Carney J.) declared the respondent to be a sex offender for the purposes of the Sex Offenders Act, 2001. He specifically referred to the fact that the respondent had made available a sum of money by way of compensation and that this sum had been accepted. He also specifically stated that the complainant had been advised of the jurisprudence leaning against the combination of compensation and a sentence of imprisonment, although he noted that such combination was not excluded by statute. He further referred to the fact that in a case involving similar facts to the instant case, the Court of Criminal Appeal had found him in error in not having adverted to the possibility of the imposition of a suspended sentence in a rape case.

10 Amongst the grounds of appeal it was argued that the learned trial judge erred in principle in that he gave undue or disproportionate weight to the acceptance by the complainant of the sum of money offered by way of compensation. It was further submitted that the learned trial judge failed to give appropriate weight and consideration to the provisions of s.6(1) of the Criminal Justice Act, 1993, which permits the imposition of a custodial sentence in addition to the making of a compensation order pursuant to the statutory provision. It was further submitted that the learned trial judge erred in principle in failing to give adequate weight to the victim impact report which set out in detail the effects which the offence had had on the complainant. It was further submitted that there had been no early expression of remorse or honest acceptance of responsibility by the respondent. The indication of the guilty plea was conveyed only in the week prior to trial, the rape having occurred in 2001. It was further submitted that there was no good reason for not applying the principles identified in D.P.P. v. Tiernan [1988] I.R. 250.

11 In this court, Mr. Patrick Gageby, senior counsel on behalf of the Director of Public Prosecutions, argued that there must be exceptional circumstances to justify the imposition of a non-custodial sentence in the case of rape. He submitted that a payment of money could not "trump" the principles laid down in D.P.P. v. Tiernan [1988] I.R. 250.

12 He further submitted that it could not be an acceptable application of s.6 of the 1993 Act that a non-custodial regime would be brought into play for those rich enough to pay compensation but not for those who could not. Furthermore, in circumstances where a victim may be impecunious, he or she may feel obliged or want to take the money offered.

13 Mr. Gageby further argued that any situation in which the views of the victim are sought as...