DPP v R.McC

JurisdictionIreland
JudgeFENNELLY J.
Judgment Date12 May 2005
Neutral Citation[2005] IECCA 71
Docket NumberNo. 105/04
CourtCourt of Criminal Appeal
Date12 May 2005

[2005] IECCA 71

COURT OF CRIMINAL APPEAL

Fennelly J.

Lavan J.

Macken J.

No. 105/04
DPP v MCC (R)
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
R McC
Appellant

CRIMINAL LAW (RAPE) ACT 1981

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION AND METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD v IRELAND 1995 1 ILRM 408

DPP v Y (N) 2002 4 IR 309

DPP v D (G) UNREP CCA 13.7.2004

DPP v D UNREP CCA 21.5.2004

DPP v G 1994 1 IR 587

DPP, PEOPLE v TIERNAN 1989 ILRM 149 1988 DULJ 155

CRIMINAL JUSTICE ACT 1999 S29

DPP v ADAMS UNREP CCA 11.1.05 (EX TEMPORE)

DPP v KING UNREP CCA 7.4..05 (EX TEMPORE)

DPP v BERMINGHAM UNREP GEOGHEGAN J 5.4.2005 (EX TEMPORE)

1

JUDGMENT of the Court delivered on the 12th day of May, 2005 by FENNELLY J.

FENNELLY J.
2

This is an appeal against sentence only. It is taken from a sentencing decision of Carney J made on 24th May 2004 in the Central Criminal Court. The learned judge granted a certificate of leave to appeal.

3

The indictment contained forty three counts of rape, attempted rape, sexual assault and assault against six different female victims, all children. The Appellant pleaded guilty to twenty sample charges. Two of the victims were the Appellant's own daughters. The other four were his nieces. The offences were committed over a period of some eleven years from 1986 to 1997.

4

It is scarcely necessary to recount the history of the offences. Their very nature and their frequency over a very long period of time take them to, or very near to, the extremity of the scale of any criminal behaviour of this kind.

5

That is what gives rise to the single essential and important question which arises on the present appeal, namely whether the learned High Court judge committed an error of principle in imposing eight concurrent life sentences in respect of the rape counts. It is not contested, nor could it have been, that he acted correctly within the range of his discretion in imposing concurrent terms of four years imprisonment in respect of the counts for indecent and sexual assault.

6

Counsel for the Appellant, while citing a number of examples of appeal sentences in the worst rape cases to suggest a limit of something less than twenty years, did not contest the extreme seriousness of these offences.

7

The Appellant commenced to commit the offences against his own daughters in his own home when they were of very tender years, as young as five or six. One of the rapes and the single attempted rape were committed against one of his daughters. A remarkable and aggravating factor is the fact that he had several opportunities to amend his behaviour.

8

There was first period of offending from early 1986 to October of that year, when one of the daughters complained to her mother and the Appellant, upon being confronted, admitted responsibility. Husband and wife went to a priest, leading to an acceptance of his wrongful behaviour and a promise that it would not happen again. Nonetheless, he recommenced the abuse in about May 1987. A second confrontation in the autumn of that year led to attendance upon a doctor and counselling from social workers. Finally, the Appellant made a full statement to the Gardai, accepting responsibility for the offences against his daughters, in November of that year, 1987. But there was no prosecution. What was not then known was that the Appellant, while admitting the abuse of his daughters, had also been abusing several of his very young nieces at his home over the same period. For a time, the Appellant agreed not to reside in the family home, but he abused his nieces instead. He went to the Lebanon for several spells on Army service. Some of the offences were committed even after his return.

9

The Appellant usually arranged to commit the offences in the home, while his wife was out playing Bingo, which he encouraged. He frequently abused one of his daughters in front of the other. He was devious, calculating and ruthless. While it might be claimed that there was no additional violence or injury beyond that intrinsic to the offences themselves, it is clear that the Appellants' daughters lived in genuine terror of his predatory and insatiable demands upon them. The depravity of the Appellant's behaviour is of smaller importance than the extreme gravity of the repeated injury done to six innocent victims.

10

It is undoubted that the maximum sentence for the offence of rape as defined by the Criminal Law (Rape) Act,1981 is life imprisonment.

11

Counsel for the Appellant submitted that the learned judge erred in the following respects:

12

1. By taking into account, purportedly in ease of the Appellant, that he would have greater access to the possibility of parole under a life sentence than under the only realistic alternative of consecutive sentences which, in the view of the learned judge, might add up to as much as thirty years;

13

2. By failing to allow any credit either for the fact of the Appellant's otherwise good character and lack of previous convictions or for his early plea of guilty, whereby he relieved the victims of the unpleasant burden of giving evidence and generally being put through the severe trauma of a contested trial.

14

3. He had also voluntarily, while at liberty, undergone a programme of treatment for his sexually abusive tendencies for a period of some four years, which demonstrated that he was amending his ways.

15

4. The very fact of imposing the maximum sentence demonstrates that no discount was allowed.

16

The Appellant, having given due notice to the prosecution, entered his pleas of guilty on 15th March 2004. The matter of sentence was then adjourned in order to enable victim impact reports to be prepared and for a probation report.

17

On the adjourned date, the reports were not to hand and a further adjournment was envisaged. On that date, the learned judge indicated that he wished to consult a recent judgment of this court, where an earlier decision, whereby he had imposed non-mandatory life sentences, had been upheld. He stated that this court had previously"repeatedly set aside any non-mandatory life sentences imposed by me so that I have just about thrown my hat at it...." He referred to the decision of this court delivered by McCracken J in which ten non-mandatory life sentences were affirmed. He also noted that, on that date, he had not yet heard any evidence in the present case. He said:

"That is not indicating any view but there are a large number of victims in this case and if there are consecutive sentences dealing with each victim may come to the same thing but, anyway, I want to see what the Court of Criminal Appeal have said…"

18

The Appellant advanced, as a first and distinct ground of appeal at the hearing of the Appeal before this court, an argument, which had been put to him, that the learned judge should have recused himself, as, it was claimed, he had shown bias by making reference in this way to the fact that this court, in another case, had affirmed non-mandatory life sentences. In particular, counsel said that the Appellant himself had raised a particular concern with his counsel in this respect and that the learned judge had indicated that he was considering the possibility of imposing life sentences. Counsel relied onOrange Communications Ltd v Director of Telecommunications Regulation and another [2000] I.R. 159, O'Neill v Beaumont Hospital Board [1999 ILRM 419, Wellwoman Centre Ltd. v Ireland [1995] ILRM 408. Counsel disavowed any intention to impute actual bias to the learned judge, but submitted that, in the circumstances, he had shown objective bias in the sense that a...

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