DPP v S.T.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 January 2017
• Neutral Citation: [2017] IECA 73
• Date: 30 January 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 19CJA/16 Record No: CA 20/16

[2017] IECA 73

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 19CJA/16

Record No: CA 20/16

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

S. T

APPELLANT

AND

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

AND

S. T.

RESPONDENT

Conviction – Indecent assault – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law

Facts: The defendant was tried upon indictment with seventy two counts of indecent assault as set out in Bill Number LK/109/2012, involving thirteen complainants, and was convicted on thirty of those counts involving six complainants, being counts 1-4, 20-25, 32-37, 56-60, and 64-72 respectively. The defendant was sentenced to 14 months imprisonment on count 25 to date from the 25/11/2015. He was further sentenced to 12 months imprisonment on counts 1-4 and 20-24 to be served concurrently inter se and also concurrent to the sentence on count 25. He was further sentenced to 12 months imprisonment on counts 32-37 and 56-60 to be served concurrently inter se but consecutive to the sentence on count 25. He was further sentenced to 14 months imprisonment on count 64 consecutive to the sentence on count 25. He was further sentenced to 12 months imprisonment on counts 65-72 to be served concurrently inter se but consecutive to the sentence on count 64. The final 20 months of the aggregate sentence of 40 months was suspended subject to conditions. The defendant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in fact and in law in: (i) allowing the prosecutor to proceed with the trial of Bill of Indictment LK109/2012 in circumstances where Bill of indictment LK93/2010 was also before the court, and was the first in time; (ii) refusing to make an order severing Bill of indictment LK109/2012 in a manner that would have ensured a fair trial and due process for the accused; (iii) failing to direct a not guilty verdict at the conclusion of the prosecution case. There was a cross appeal by the prosecutor, the DPP, seeking a review of the sentences imposed on the grounds that they were unduly lenient. The DPP submitted that the sentencing court erred in principle in: (i) failing to reflect in the sentences the level of culpability of the defendant and, in particular, the repeated breaches of trust on the part of the defendant inherent in his offending; (ii) affording excessive weight to mitigating factors in circumstances where the defendant had contested the charges proffered against him and where there was no evidence of remorse on the part of the defendant; (iii) failing to make the series of sentences in respect of each of the six injured parties consecutive to each other so as to reflect on the totality of the sentences imposed the gravity of the said offences together with the fact that the same were committed over a period time against six children; (iv) suspending part of the overall sentence imposed in circumstances where there was no reasonable basis for so doing; (v) taking into account that the defendant had spent a period in custody in respect of an unrelated case.

Held by the Court that the defence had no entitlement to expect that they would be strategically advantaged by the prosecution, merely that they would not be unfairly prejudiced by the prosecution. The Court was satisfied that the trial judge considered the severance application with great care and rigour; he had opened to him the main relevant authorities, and in particular the judgment of Barron J in The People (DPP) v BK [2002] IR 199 and manifestly applied it properly to the circumstances of the case. The Court held that there was clear evidence of system, striking similarities, and of dominion sufficient to justify him in his decision. The Court did not consider that the claim of possible collusion had been raised at anything approaching the level at which the judge would have been justified in withdrawing the case from the jury. The Court held that the sentences were not unduly lenient in the sense of being significantly outside of the sentencing judge’s margin of appreciation and outside of it to such a degree as to represent a clear departure from the norm. The Court was satisfied that the sentencing judge approached the sentencing exercise with great consideration and care and the Court found no error of principle.

The Court held that the appeal against conviction should be dismissed and that the application for a review of sentence should be refused.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr Justice Edwards on the 30th day of January, 2017

Introduction

1 For the purposes of this single judgment dealing with both of the above entitled matters the court will, for the avoidance of confusion, refer to Mr S. T. as ‘the defendant’, and to the Director of Public Prosecutions as ‘the prosecutor’.

2 In this case the defendant was tried upon indictment with seventy two counts of indecent assault as set out in Bill Number LK/109/2012, involving thirteen complainants, and was convicted by the jury on thirty of those counts involving six complainants, being counts no's 1, 2, 3, 4, 20, 21, 22, 23, 24, 25, 32, 33, 34, 35, 36, 37, 56, 57, 58, 59, 60, 64, 65, 66, 67, 68, 69, 70, 71, & 72, respectively.

3 The defendant was sentenced to 14 months imprisonment on count no 25 to date from the 25/11/2015. He was further sentenced to 12 months imprisonment on counts no's 1, 2, 3, 4, 20, 21, 22, 23, & 24 to be served concurrently inter se and also concurrent to the sentence on count no 25. He was further sentenced to 12 months imprisonment on counts no's 32, 33, 34, 35, 36, 37, 56, 57, 58, 59, & 60 to be served concurrently inter se but consecutive to the sentence on count no 25. He was further sentenced to 14 months imprisonment on count no 64 consecutive to the sentence on count no 25. He was further sentenced to 12 months imprisonment on counts no's 65, 66, 67, 68, 69, 70, 71, & 72 to be served concurrently inter se but consecutive to the sentence on count no 64. The final 20 months of the aggregate sentence of 40 months was suspended subject to conditions.

4 The defendant now appeals against his conviction. There is a cross appeal by the prosecutor seeking a review of the sentences imposed on the grounds that they were unduly lenient.

THE APPEAL AGAINST CONVICTION

Procedural History of the Case

5 On the 11th of February 2010 the defendant was separately charged with the offences which now form the subject matter of Bill Number LK93/2010. These involved four complainants, other than the thirteen complaints involved under Bill Number LK109/102.

6 On the 21st of June 2012 the applicant was charged with the offences which are now the subject matter of Bill Number LK109/2012.

7 All offences set out in both Bill Numbers allege that the defendant indecently assaulted a number of pupils of The Christian Brothers National School, Sexton Street, Limerick, (CBS Sexton St) where the defendant was at that time a Christian Brother in a teaching role. The complaints span the school years 1978/1979, 1979/1980 and 1980/81.

8 With some few exceptions the offences on both Bills were alleged to have been committed on the premises of CBS Sexton Street. A relatively small number of offences were alleged to have been committed by him at a swimming pool known as St. Enda's in Southhill, Limerick. All seventeen complainants were at the relevant time pupils of the CBS, Sexton Street. Fourteen complainants alleged that they were sexually abused by the defendant when they were in fifth class. These complaints spanned two school years those being 1978/1979 and 1979/1980. Three of the complainants alleged that the defendant sexually abused them when they were in sixth class, which was in the school year 1980/81.

9 With some exceptions, the complainants alleged that the defendant on regular occasions during the school year sexually assaulted them by putting his hand in their trousers while in class and fondling their genitalia. Some of the complainants alleged they were also assaulted while in a state of undress at the swimming pool at St. Enda's.

10 For convenience the complainants who are the subject matter of Bill Number LK93/2010 will be designated as complainants ‘A’, ‘B’, ‘C’ and ‘D’. The indictment is concerned with the school year 1978/1979. It is apparent from the book of evidence that ‘A’ made a complaint to the gardaí in 2005. During the course of investigating that complaint the gardaí approached ‘B’, ‘C’ and ‘D’, respectively who then made complaints of a similar nature to the Gardaí. The defendant was charged in 2010 to these complaints and thereafter returned for trial to Limerick Circuit Court. Thereafter the matter was adjourned from time to time for the following reasons:

(i) In order for disclosure to be made;

(ii) In order to deal with a ‘development in the case’ which subsequently turned out to be the discovery of roll books and a follow up garda investigation which came to fruition in Bill Number LK/109/2012;

(iii) Pending the Supreme Court decision in The People (Director of Public Prosecutions) v. Devins and O'Malley [2012] 4 I.R. 491.

11 Bill Number LK93/2010 was mentioned on the 18th of May 2012 in Limerick Circuit Court on which date the 12th of June 2012 was fixed for the trial of the matter. The trial date was fixed on the assumption that disclosure would be made in advance of the trial. On the 7th of June 2012 an application was made by the prosecution to adjourn the trial as the prosecution were not ready to proceed as they wished to proceed with one trial in respect of matters then before the Circuit Court and District Court. There was no consent to this course of action and the trial of the matter...