DPP v Paul Moore

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 20 December 2005
• Neutral Citation: [2005] IECCA 141
• Court: Court of Criminal Appeal
• Date: 20 December 2005

[2005] IECCA 141

THE COURT OF CRIMINAL APPEAL

Hardiman J.

White J.

Hanna J.

166 CJA/03

D.P.P.-v- Paul Moore

IN THE MATTER OF SECTION 2 OF THE CRIMINAL

JUSTICE ACT, 1993,

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PAUL MOORE

Abstract:

Criminal law - Sentence - Unduly lenient - Application by DPP for review - Rape - Medical issues - Second offence - Whether question of rehabilitating regime, medical or otherwise, matter for Executive and not Court - Criminal Justice Act 1993, s. 2

Facts: This was an application by the DPP for a review of a sentence of six years imposed on the respondent for sexual offences on the grounds of undue leniency.

Held by the Court of Criminal Appeal that a sentence of 10 years imprisonment commencing from the date of the commencement of the original sentence was the appropriate sentence in all the circumstances of the case. A sentence for a second, quite similar offence committed in close proximity to the release from the sentence for the first had to be greater than that for the first offence. The question of the regime, medical or otherwise, appropriate to the applicant was a matter for the Executive.

Reporter: R.W.

Mr. Justice Hardiman

1 This is the D.P.P.'s application for a review of a sentence of six years imposed on the respondent Paul Moore, on the grounds of undue leniency. In a previous ruling delivered on the 31st January, 2005, this Court held that the sentence appeared to be unduly lenient, and that this in turn related to an error of principle in the sentencing process viz. the failure of the learned trial judge to address the severe conflict in the medical evidence called on behalf of the respondent and that called on the part of the prosecution. The Court therefore decided to proceed to impose an appropriate sentence by itself embarking on a consideration of the medical evidence. This was done by a consideration of the medical reports and by the hearing ofvive voce evidence on the 1st and 2nd November, 2005. In fact on that day the Court was asked to hear not merely the medical evidence but also the oral evidence of a number of members of the respondent's family.

Factual background.

2 On the 21st July, 2003, the respondent, having pleaded guilty to two counts alleging respectively rape and assault causing harm was sentenced to six years imprisonment in respect of the rape count and three years imprisonment in respect of the assault count. There is no application before the Court to review the sentence on the assault count.

3 The rape count alleged, in the particulars of offence,that between the 27th July, 2001 and the 28th July, 2001 at an apartment in the North Inner City, the respondent raped a named woman.

Particulars of the rape.

4 From the evidence heard before the learned trial judge it appears that the rape exhibited a number of unusual features. The victim was a musician engaged to play at a public house in the North Inner City. She was approached by the respondent and offered a drink, which she accepted. They had quite a lengthy conversation over further drinks during which the respondent told her a false story to the effect that he had been engaged to a girl for five years but she had died in his arms. He was wearing a religious medal and spoke of his religious beliefs. They left the public house they were in and went to another nearby premises. They left there, the victim with the intention of getting a taxi and the respondent carrying her bag. He said he wanted to give her a book, having previously discovered in conversation that she always read when on buses. They went to his apartment which was quite nearby and had some tea. The respondent then made approaches to the victim, which she rebuffed. He then forcibly undressed her and indecently assaulted her. This culminated in his raping her orally and vaginally. In the course of the assault he invited her to sign a document he had written to the effect that she had consented to intercourse. She signed in a false name. She managed to escape by indicating that she wanted to go to the toilet and taking the opportunity to run out of his premises, naked or nearly so, and eventually getting access to a nearby apartment.

5 On being interviewed by the Gardaí the respondent said that they had consensual intercourse after she had signed the note referred to, which he said she did voluntarily. He said she had taken her own clothes off and had not objected to intercourse. He said that he had got angry because he had been unable to ejaculate and that this precipitated her flight. He admitted he might have grabbed her by the hair as she fled: a clump of her hair was found near the flat.

6 This, obviously, amounted to a serious rape and assault to which the applicant pleaded guilty. His position was further exacerbated by his prior record.

Previous convictions.

7 The applicant had four previous convictions of which two were for sexual offences. According to the evidence given before the learned trial judge the latter were as follows:

8 On the 27th July, 1995, the respondent was sentenced to seven years imprisonment for an offence of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act,1990 and to two years imprisonment for an offence of sexual assault contrary to s.2 of the same Act, and two years imprisonment for the offence of causing grievous bodily harm contrary to s.20 of the Offence against the Person Act, 1861. These sentences were concurrent and dated from the 1st October, 1994.

9 On the 6th February, 1996, the respondent was sentenced to one year's imprisonment for an offence of sexual assault, to commence at the expiry of the seven year sentence above.

Medical issue.

10 There is no doubt that the respondent had been involved in a serious road traffic accident in December, 1982, when he was fifteen years and ten months old. He was awarded damages as a result of this accident and was at the same time made a Ward of Court. There is still a substantial fund being administered for him in this connection.

11 In this accident he sustained fractures to limbs and a severe closed head injury. The evidence from the accused's family was to the effect that his personality changed remarkably in the aftermath of this incident and in particular he became violent and uncontrolled. It is difficult to reconstruct precisely what history was given at the time as to his pre-accident personality: the family members say that it was perfectly normal and that he was a pleasant co-operative young person. A note in May, 1983, by a junior doctor on the team of Mr. Boyd Dunlop, the Orthopaedic Surgeon, noted that "His mother does describe that he had some psychological problems prior to the original accident", but this was denied by the mother in evidence to this Court. A psychiatric report of Dr. Art O'Connor in February, 1995, summed up the position as follows:

"It seems to be agreed that he suffered a personality change following his head injury which resulted in many behavioural abnormalities. It seems also to be accepted that he had personality difficulties before the accident".

12 There is also dispute as to the family psychiatric history which is difficult or impossible to resolve at this distance in time. It was undisputed, however, that his father, who himself gave evidence before the Court, had for many years a very severe drink problem, though he is now abstinent.

The sentencing hearing.

13 At the hearing before the learned trial judge a number of family members gave evidence. So too did Dr. Kieran O'Driscoll, Consultant Psychiatrist, on behalf of the respondent and Dr. Harry Kennedy, Consultant Psychiatrist, on behalf of the Director. Neither in the Court of Trial nor on this appeal was there any challenge to the expertise and experience, and indeed distinction, of these two practitioners in their fields. Dr. O'Driscoll is a Neuro-psychiatrist and Dr. Kennedy a Forensic Psychiatrist attached to the Central Mental Hospital.

14 Moreover, each of these doctors had access to a very great volume of reports and notes from other doctors and persons in cognate professions, from 1983 to the present time. Some of these were generated in the aftermath of the accident, and some in the course of the respondent's involvement with the Criminal Law, and consequential medical exposures. There are reports from at least nineteen separate professionals on the file of documents handed to the Court and there was also evidence and notes from the family general practitioner.

15 On the basis of the medical evidence the defence contended that the respondent was entitled to substantial mitigation by reasons of the consequences of his head injury. Mr. Hartnett submitted that this led to a personality change which rendered the respondent less well able to control himself, "made him irritable and impulsive and less well able to control himself, particularly when combined with alcohol".

16 Dr. O'Driscoll considered that his altered personality had led to social isolation, and left him vulnerable "or at risk of behaviour, such as drinking alcohol when he cannot cope with the consequences of the alcohol and [prone to] explosiveness or extremeness of behaviour, both in terms of disinhibition and in terms of an aggressive component". He was also, said Dr. O'Driscoll, unable or less able to empathise that the effect of his behaviour on his victim than a normal person would be. The formal diagnosis would be of "Organic Personality Disorder".

17 Dr. Kennedy, on the other hand, was not disposed to concede that the head injury was the cause, or the exclusive cause, of the respondent's problems. He did not, of course, deny that the respondent had suffered a very severe head injury in his mid-teens but said that there were indications of aberrant behaviour prior to this. More importantly, perhaps, he did not agree that the facts of the...