DPP v P.O'C.

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 05 November 2009
• Neutral Citation: [2009] IECCA 116
• Docket Number: [C.C.A. No. 18 of
• Court: Court of Criminal Appeal
• Date: 05 November 2009

[2009] IECCA 116

THE COURT OF CRIMINAL APPEAL

Denham J.

Dunne J.

MacMenamin J.

[C.C.A. No: 18/2009]

DPP v O'C (P)

[2009] IECCA 116

Between/

Director of Public Prosecutions

and

P. O'C.

Appellant

CRIMINAL LAW (RAPE) ACT 1981 S10

CRIMINAL LAW (RAPE) ACT 1981 S10(1)

DPP v MCC (G) 2003 3 IR 609 2003/18/4030

BACIK & HEFFERNAN CRIMINAL LAW & PROCEDURE: CURRENT ISSUES & EMERGING TRENDS 2009 109

BACIK & HEFFERNAN CRIMINAL LAW & PROCEDURE: CURRENT ISSUES & EMERGING TRENDS 2009 110

AG, PEOPLE v O'DRISCOLL 1972 1 FREWEN 351

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

O'C (P) v DPP 2008 4 IR 76 2008/48/10390 2008 IESC 5

CRIMINAL LAW

Sentence

Severity - Indictment - Sexual offences - Multiple complainants - Indictment severed - Concurrent sentences imposed in two counts - Consequential trial - Sentence imposed - Principles to be applied -- Whether consecutive sentence imposed - Application for judicial review - Mitigating and aggravating factors - Whether tactical decisions amounted to aggravating factor - People (DPP) v GMcC [2003] 3 IR 609; People (AG) v O'Driscoll (1972) 1 Frewen 351 and State (Healy) v Donoghue [1976] IR 325 considered; POC v DPP [2008] IESC 5, [2008] 4 IR 176 approved - Criminal Law (Rape) Act 1981 (No 10), s 10(1) - 3 year sentence affirmed but last year suspended (18/2009 - CCA- 5/11/2009) [2009] IECCA 116

People (DPP) v O'C(P)

Facts: The appellant brought an application for leave to appeal against a sentence of three years imposed by the Central Criminal Court in 2009 for indecently assaulting a female pupil. The appellant contended that the trial judge erred in imposing a consecutive sentence on the appellant. The appellant had been sentenced to four years imprisonment for the same offence as to another complainant which he had already served. The fifth trial was the subject of the appeal. It was submitted that he had no previous convictions other than those relating to a severed indictment.

Held by the Court of Criminal Appeal per Denham J. (Dunne, MacMenamin JJ. concurring), that the Court would treat the application for leave to appeal as the hearing of the appeal and would quash the sentence. In its place, the Court would sentence the appellant to three years imprisonment with the last twelve months suspended on condition that he attend probation supervisions, subject to the condition that he engage in sex therapy as directed by the Probation Service. The plea had taken place very late in the proceedings. The appellant had sought the severance of the indictment. There was only one count involved and the fallacy of the case of the appellant was to assume that if all of the offences had been tried together that he would have received in effect a total sentence amounting to four years.

Reporter: E.F.

1 Judgment of the Court delivered on the 5th day of November, 2009 , by Denham J.

2 1. This application for leave to appeal has been brought by P.O'C, hereinafter referred to as "the appellant", against the sentence of 3 years imprisonment imposed by the Central Criminal Court (Carney J.) on the 9 ^th February, 2009.

3 2. The appellant was before the Central Criminal Court on one count, which stated:-

Statement of offence

4 Indecent assault contrary to section 10 of the Criminal Law (Rape) Act, 1981.

Particulars of offence

5 PO'C on a date unknown between the 1 ^st April 1982 and the 30 ^th June 1982, both dates inclusive, at ... Primary School, ... within the jurisdiction indecently assaulted [E], a female.

6 3. On the 20 ^th October, 2008 the appellant pleaded guilty to this count.

7 4. There is a history to the case. The indictment dates from 1998 and originally contained allegations of indecent assaults by five separate complainants, all pupils in the primary school where the appellant was a member of the teaching staff. The indictment was severed and five separate trials directed, one relating to each complainant. The complainant in this case is the last of the five. The complainants are referred to as A, B, C, D and E.

8 5. The indictment was severed on the application of the appellant. On the 15 ^th November, 1999 the first trial commenced, in relation to complainant A. After a nine day trial the appellant was acquitted.

9 6. The trial in relation to complainant B commenced on the 24 ^th January, 2000, the jury was discharged and a new trial listed for the 22 ^nd May, 2000.

10 7. In the meantime the trial in relation to complainant C commenced on the 22 ^nd March, 2000 in respect of two counts of indecent assault. The appellant was convicted and sentenced to four years imprisonment ( Ó Caoimh J.). The appellant served this sentence and was released on the 6 ^th May, 2003.

11 8. The adjourned trial in relation to complainant B commenced on the 22 ^nd May, 2000 and the appellant was convicted of five counts of indecent assault and sentenced to four years imprisonment with one year suspended (Finnegan J.). This sentence ran with the sentence in relation to complainant C, creating in effect a concurrent sentence.

12 9. The trial in relation to complainant D commenced on the 26 ^th June, 2001 and the indictment was quashed on an application to the learned trial judge.

13 10. The fifth trial, in relation to complainant E, the subject of this appeal, was listed before the Central Criminal Court on the 10 ^th June, 2002 for trial but there was no judge available to hear the case. The matter was relisted for hearing on the 12 ^th January, 2004.

14 11. After serving his sentences in relation to the convictions on the complaints of complainants B and C, on the 7 ^th July, 2003 the appellant applied for and was granted leave to apply for judicial review to prohibit the trial in relation to complainant E on the grounds of delay. This application succeeded in the High Court on the 11 ^th March, 2005 but failed on appeal in the Supreme Court on the 4 ^th March, 2008. The case was then returned to the court lists for a date for trial.

15 12. On the 20 ^th October, 2008 the appellant was arraigned and pleaded guilty to the offence of indecent assault on complainant E. The matter was put back for sentencing so that reports would be available to the court.

16 13. The statement of the offence and the particulars of the offence have been set out earlier in this judgment. The complainant was a 12 year old pupil in the school where the indecent assault took place. The assault had a significant effect on her. Also, the long legal process has had a detrimental effect upon her.

17 14. When sentencing the appellant on the 9 ^th February, 2009 the learned trial judge stated:-

"I declare the accused a sex offender as required by law. The facts of this case are recorded on the transcript and don't require to be reiterated here. The aggravating feature, so far as this case are (sic) concerned, is that the accused, at the time of perpetrating the offence, was in a position of trust, as a primary teacher, and adopted a blackmailing approach towards his victim, by getting his way on foot of not reporting her to the school principal for misconduct on a bus. So far as his plea of guilty is concerned, that came very late in the day, and the victim has had this matter hanging over her without closure for a period of 26 years. The accused in this case, had he pleaded guilty at the first available opportunity, would have had his sentence in this case long over, and been in a position to take up his new life in France with the lady who is part of his life now. But what he did was described in his own words to the probation officer in a colourful expression which for the moment has gone out of my head, but which is already recorded on the transcript. It had something to do with beating his head in on the judicial review side of this court over many years. Well, he initiated that course and was ultimately unsuccessful. And, as I say, that has had the effect of keeping the matter hanging over his victim, and depriving her of closure. I sentence the accused to a period of three years imprisonment to date from two weeks ago."

Issue

18 15. The issue in this appeal is whether the learned trial judge erred in giving a three year sentence on the 9 ^th February, 2009. The count on the indictment, to which the appellant pleaded guilty, was a complaint of indecent assault by complainant E. He has served four years imprisonment in relation to the counts on foot of the complaints of complainants B and C. All three counts were on the original indictment.

Submissions on behalf of the appellant

19 16. Counsel for the appellant submitted that the learned trial judge erred in principle by imposing a consecutive sentence on the appellant, and further that it has been the practice to impose concurrent sentences where offences were committed against several victims, although it was accepted that there is no absolute rule as to the concurrency in sentencing. He added that the Central Criminal Court (Finnegan J.) when sentencing on the 22 ^nd May, 2000, acknowledged that the appellant was already serving a four year sentence and ordered a four year sentence but suspended the last year, so that in effect it was a concurrent sentence.

20 17. Counsel contended that the learned trial judge had failed to take into account the views expressed by the Supreme Court when he imposed a sentence of three years on the appellant.

21 18. Counsel stated that while the learned trial judge had noted that the appellant had taken judicial review proceedings and that he was not going to hold that against him, he had nonetheless held:-

"It has something to do with his beating his head in on the judicial review side of this Court over many years. Well, he initiated that course and was ultimately unsuccessful. And, as I say, that has the effect of...