DPP v WC

• Jurisdiction: Ireland
• Judge: Mr. Justice Flood
• Judgment Date: 01 January 1994
• Neutral Citation: 1997 WJSC-CCA 742
• Court: Court of Criminal Appeal
• Date: 01 January 1994

DPP v. C (W)

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor

.v.

W.C.

Accused

1997 WJSC-HC 742

THE HIGH COURT

(THE CENTRAL CRIMINAL COURT)

Synopsis:

CRIMINAL LAW

Sentence

Imprisonment - Suspension - Factors - Youth - Rape - Guilt - Admission - No previous record of crime - (Central Criminal Court - Flood J. - 14/7/93) - [1994] ILRM 321

|The People v. C.|

Citations:

CONSTITUTION ART 6

CONSTITUTION ART 34.1

COSTELLO V DPP & AG 1984 ILRM 413

COURTS OF JUSTICE ACT 1936 S62

C, STATE V MIN FOR JUSTICE 1967 IR 106

DEATON V AG 1963 IR 170

O, STATE V O'BRIEN 1973 IR 50

HEALY, STATE V DONOGHUE 1976 IR 325

COX V IRELAND 1992 2 IR 503

MURRAY & MURRAY V IRELAND 1985 ILRM 543

CONSTITUTION ART 40.3

CONSTITUTION ART 41

WOLFF V MCDONNELL (1974) 418 US 539

AG, PEOPLE V O'DRISCOLL 1972 1 FREWEN 351

AG, PEOPLE V POYNING 1972 IR 402

STANBRIDGE, STATE V MCMAHON 1979 IR 214

CRIMINAL LAW (RAPE) ACT 1981

CRIMINAL LAW (RAPE)(AMDT) ACT 1990

R V MCDONALD & ORS 1989 NI 37

DPP V TIERNAN 1988 IR 250

CRIMINAL JUSTICE ACT 1993 S5

OFFENCES AGAINST THE PERSON ACT 1861 S48

OFFENCES AGAINST THE STATE ACT 1939 S34

CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S3

MURRAY & MURRAY V IRELAND 1991 ILRM 465

CRIMINAL JUSTICE ACT 1993

1 Judgment of Mr. Justice Flood delivered on the 14th day of July, 1993.

1.0 INTRODUCTION

2 The accused in this case pleaded guilty on the 15th July, 1992 to a charge of rape which is set out at count no. 1 on the Bill of Indictment No. 25C/92.

3 On that date Sergeant John Tuohy was called as a witness for the prosecution to outline the material facts of the case. He stated that the mother of the complainant in this case made a complaint of rape to him which he investigated.

4 The material facts are that the complainant and the accused had been seeing each other as boy and girlfriend for a period of approximately five months. On the night of 31st December, 1991, being New Year's Eve, they both attended a local discotheque to celebrate the arrival of the New Year. They did not, in point of fact, arrange to meet on that night but having met at the discotheque spent the evening dancing together and participating in the festivities. During the course of the evening the accused is believed to have consumed approximately five pints of beer.

5 At approximately 2 o'clock in the morning of the 1st January, 1992 the complainant and the accused left the discotheque and walked down the town. They stopped adjacent to a local monument and were, for some time, kissing. They then went down to a local bridge for some privacy but found another couple there. Ultimately they went into a derelict mill adjacent to a local river.

6 On the complainant's account of events, the accused removed his jacket and placed it on the ground and they then lay together upon it. The weather conditions that evening were cold and damp. This encounter continued for possibly three-quarters of an hour, or more. In that time the complainant and the accused had a romantic encounter and were consensually involved in a high degree of intimacy. The accused became sexually aroused and sought to have sexual intercourse with the complainant. The complainant did not consent to this course and the accused, thereupon, had sexual intercourse with the complainant in the absence of her consent.

7 The prosecuting Garda has sought to characterise the circumstances of this case as a situation where "... things got out of hand and ... just went too far."

8 It would appear that in the immediate aftermath of these events the accused was neither fully aware, nor appreciated, the wrong he had done. At this time the complainant was distressed, upset, and made the true facts of the situation clear to the accused. The accused now appreciated the seriousness of the situation.

9 The complainant and the accused appear to have discussed, at this time, the prospect of the complainant becoming pregnant. The accused appears to have accepted at this stage that the act of sexual intercourse had taken place without the consent of the complainant.

10 The accused accompanied the complainant to near her home. While walking they met a local school teacher who is a neighbour of the complainant. The time was approximately 4.00 a.m. The complainant did not alert the school teacher to the fact of the rape, or to the distress of her circumstances.

11 When the complainant arrived home she told her mother of the events that had transpired. Later in the day the complainant's mother contacted the Gardai and the investigation was set in train.

1.1 STATUTE LAW

12 Where an accused person pleads guilty to rape, or is convicted of that offence by a jury in the course of a criminal trial, the maximum sentence that a court may impose is a term of penal servitude for life as provided by section 48 of the offences Against the person Act, 1861. The policy of the British Parliament of that time, and also of the Oireachtas today, is to lay down in criminal statutes the maximum sentence that may be imposed by a court in respect of a criminal offence. The role of legislation, subject to some exceptions, has been to provide a power to sentence an accused person, and to set the outer limit of its use. The sentence to be imposed on an accused person in a particular case is solely a matter for a trial judge in the independant and impartial exercise of judicial discretion. To suggest otherwise would be to countenance a constitutionally impermissible invasion of judicial independance and the doctrine of the separation of powers as provided by Articles 6 and 34.1 of the Constitution. In the Supreme Court decision of Costello .v. D.P.P. & A.G. (1984) ILRM 413 where the court granted a declaration that Section 62 of the Courts of Justice Act, 1936was repugnant to the Constitution because a statutory power purporting to permit the prosecuting authorities to send a person forward for trial after a Judge of the District Court had ordered, at the conclusion of a preliminary examination, that the accused be discharged, was an unconstitutional interference by the executive in the judicial domain. Chief Justice O'Higgins at page 415 of the report, delivering the judgment of the court, states:

"The Court is satisfied that in conducting the preliminary examination and in determining these questions the (Judge) was exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution. (See Arts. 6 and 34 of the Constitution, and State (C) .v. Minister for Justice (1967) IR 106). When, in the exercise of such judicial power, there is a determination of these justiciable issues, that determination Cannot be set aside or reversed by any other authority. Such action would constitute an invasion of the judicial domain and an attempt to exercise the judicial power of government otherwise than by the organ of State established for this purpose by the Constitution."

13 This case is a particular example of the general principle of the constitutionally mandated independance of the judicial arm of government in criminal proceedings. This independance operates at all stages of criminal proceedings, from their initiation by way of summons, or charge, to their conclusion ending in a verdict of not-guilty, or alternatively conviction and sentence.

1.2 THE CONSTITUTIONAL SETTING

14 The Supreme Court in Deaton .v. A.G. (1963) I.R. 170 specifically acknowledged the constitutional independence of a judge in the selection of the punishment to be imposed following conviction. In that case the Court declared a statutory provision which purported to enable the Revenue Commissioners to select the penalty to be imposed in a customs case to be unconstitutional. In the course of his judgment O'Dalaigh, C.J. stated:

"Where the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the Executive's displeasure by the choice of penalty being in the determination of an independant judge. The individual citizen needs the safeguard of the courts in the assessment of punishment as well as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a constitution which is broadly based on the doctrine of separation of powers - and in this the Constitution of Saorstat Eireann and the Constitution of Ireland are at one - could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens."

15 This approach was approved by the Supreme court in The State (O) .v. O'Brien (1973) I.R. 50 particularly in the judgment of walsh, J.

16 The constitution not only protects the independance of a judge in the selection of a particular sentence but, in addition, places on him a constitutional duty to impose a sentence which is appropriate to the degree of guilt, taking into account all relevant circumstances which may arise in that case. This approach was expressly approved by the Supreme Court in The State (Healy) .v. Donoghue (1976) I.R. 325 where Henchy, J. stated at page 353 of the report:

"... a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence, or where his guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances."

17 In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality. By this I mean that the imposition of a particular sentence must strike a...