DPP v Tiernan

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.,McCarthy J.
Judgment Date01 Jan 1989
Neutral Citation1988 WJSC-SC 1067
Docket Number[S.C. No. 190 of 1987]

1988 WJSC-SC 1067

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy J.

190/87
DPP v. TIERNAN

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

and

EDWARD TIERNAN
Appellant

Citations:

COURTS OF JUSTICE ACT 1924 S29

AG V CONROY 1965 IR 411

R V BILLAM 1986 AER 985

R V PURU 1 NZLR 1984

DPP V O'DRISCOLL FREWEN VOL 1

R V PUI 1978 2 NZLR 193

DPP, PEOPLE V CARMODY UNREP MCCARTHY CCA 14.12.82

R V MCCABE 1987 CLR 345

R V GIBSON 1987 CLR 346

R V BIRCH 1988 CLR 182

R V SULLIVAN 1988 CLR 188

R V PAWA NZ CT OF APP 13.10.78

R V SHAW 1981 3 CLR 77

Synopsis:

CRIMINAL LAW

Sentence

Imprisonment - Duration - Rape - Aggravating circumstances - Group multiple rape - Violence and perversion - Early admission of guilt by accused - Conviction after plea of guilty - Sentence of 21 years penal servitude - Sentence reduced to 17 years penal servitude - The appellant was convicted on indictment for rape and was sentenced to 21 years penal servitude - The appellant was one of a group of three men who dragged a woman out of a car, imprisoned her escort, and raped her several times with great violence accompanied by acts of sexual perversion - The appellant had prior convictions for assault occasioning actual bodily harm, for aggravated burglary associated with a wounding, for gross indecency and for burglary - His application for leave to appeal against that sentence was dismissed by the Court of Criminal Appeal on 13th January, 1986 - The appellant appealed to the Supreme Court against his sentence pursuant to a certificate of the Attorney General issued pursuant to s. 29 of the Act of 1924 - The ground certified by the Attorney General was that it was desirable in the public interest that guidelines should be obtained for application by courts of trial when assessing sentences after convictions for rape - At the hearing of the appeal, counsel for the respondent accepted that the certificate should be treated as raising the point of law involved in the question whether, in the light of the application of the correct principles, the sentence imposed on the appellant was an appropriate one - Held that the certificate of the Attorney General would be treated by the Court as raising a point of law restricted to the propriety of the sentence imposed on the appellant - Held that proof of a lack of premeditation in the commission of the rape was not a mitigating circumstance but only established an absence of an aggravating element - Held that the only mitigating circumstances established by the appellant were that he immediately admitted his guilt when first interviewed by gardai and made a full statement, and that subsequently he pleaded guilty at his trial - Held that such admission and plea by the appellant could be taken, in certain circumstances, by a trial judge as an indication of remorse and as grounds for an expectation of the possible rehabilitation of an accused - Held that the fact, if it were the fact, that the sentence imposed on the appellant exceeded in duration the sentences normally imposed for that offence was not a ground for varying the sentence - Held that the fact that a person sentenced to imprisonment for life might expect to serve, under the policies pursued by the Executive from time to time, a shorter term in prison than the appellant could expect to serve was not a fact to be taken into consideration when reviewing the appellant's sentence - Held that, in view of the appellant's conduct after he had been questioned about the offence and the desirability of contemplating his rehabilitation, the sentence would be reduced to 17 years penal servitude from 8/10/85 notwithstanding the multiple aggravating circumstances of the crime of which the appellant had been convicted - ~Semble~: In assessing the sentence to be imposed on the conviction of a person for rape, neither the previous sexual experience of the victim nor her imprudence in placing herself in danger of being raped can be considered as a mitigating circumstance: ~Conroy v. The Attorney General~ [1985] I.R. 411 and ~The People (Attorney General) v. O'Driscoll~ (C.C.A. - 3/3/72) considered; see Frewen, vol. 1, p. 551 - Courts of Justice Act, 1924, s. 29 - (190/87 - Supreme Court - 13/5/88)

|The People v. Tiernan|

1

JUDGMENT delivered on the 13th day of May 1988by FINLAY C.J. [Walsh, Henchy, Griffin Conc]

2

This is an appeal brought to the Supreme Court by the Appellant against the decision of the Court of Criminal Appeal, delivered on the 13th January 1986, dismissing his application for leave to appeal against a sentence of twenty-one years" penal servitude imposed on him for rape. It is brought pursuant to a certificate issued by the Attorney General pursuant to Section 29 of the Courts of Justice Act 1924, on the 9th March 1987. The grounds upon which the AttorneyGeneral certified that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court was that it involved the guidelines which the Court should apply in relation to sentences for the crime of rape. The grounds of appeal are as follows:

"1. That the learned trial Judge erred in principle in imposing a sentence which was:"

(a) far in excess of any sentence which had heretofore been imposed for the crime of rape or, indeed, any crime except perhaps one incident of kidnapping and false imprisonment;

(b) far in excess of the conventional period a person might expect to serve who was sentenced to life imprisonment;

(c) that while the crime of rape was heinous, the Court should have regard to degrees of seriousness, and that this crime lacked anyelement of premeditation;

(d) did not have sufficient regard to the fact that the accused made a statement admitting his guilt in pleading guilty;

(e) did not have sufficient regard to the need that the accused should some day be rehabilitated in society."

3

Although the Certificate of the Attorney General states that the point of law he certified was the guidelines which the Court should apply in relation to sentences for the crime of rape, having regard to its appellate jurisdiction this Court dealt only with the issues arising under the grounds of appeal submitted in this individual case and did not receive submissions, nor reach any decision with regard to questions which might be applicable to cases of rape which had different facts and circumstances surrounding them. As Counsel for the DPP submitted the Certificate must be read as stating the point of law to be whether on the application of the correct principles the sentence wasappropriate.

4

Many of the considerations, however, which arise for determination on this appeal will hopefully be of assistance to judges having responsibility to decide on sentences appropriate on convictions forrape.

5

The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In the Attorney General v. Conroy 1965 I.R. 411 this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minoroffence.

6

The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelongduration.

7

In addition to those damaging consequences, rape can distort the victim's approach to her own sexuality. In many instances, rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease andthe possibility of a pregnancy and of a birth whose innocent issue could inspire a distress and even a loathing utterly alien to motherhood.

8

Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.

9

All these features which I mention in summary and not as an attempted comprehensive account of the character of rape apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a substantial immediate period of detention or imprisonment.

10

Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular...

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