DPP v Z

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 18 March 2014
• Neutral Citation: [2014] IECCA 13
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 288 of 2011],[Record No: CCA 288/11]
• Date: 18 March 2014

[2014] IECCA 13

THE COURT OF CRIMINAL APPEAL

Clarke J., Moriarty J., McCarthy J.

[Record No: CCA 288/11]

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Z

Accused/Appellant

Criminal law – Rape – Child Abuse – Children – Sentencing – Maximum Sentence - Life Imprisonment – Exceptional Circumstances – Mitigating Factors – s. 29 Criminal Justice Act 1999.

Facts: The apellant entered a late plea of guilt to offences of rape and child cruelty against his daughters. The sentencing judge imposed maximum sentences which resulted in the appellant receiveing life sentences for the rape offfences as well as 2 and 7 years for the child cruelty offences. The appellant sought to appeal on the grounds that judge had made an error of principle as the setences were manifestly excessive.

Held by Clarke J, that s.29 Criminal Justice Act 1999 allows a maximum sentence to be imposed even where an accused can show that there are mitigating factors. This will occur where the offence in question is of such an exceptional nature that in a balancing exercise it outweights the force of any mitigation.

In this case the appellant"s offences against his daughters were held to be exceptional as they were of a cruel, depraved and prolonged nature. Furthermore, there was a clear breach of trust on the part of the perpetrator. The appellant put forwards several mitigating factors which included his plea of guilt, his dysfunctional background and his abuse of alchohol. However, it was held that the plea of guilt was extremely late and that although there are times when a dysfunctional background and substance abuse may be taken into account to reduce a sentence, in this case these factors were not sufficient to outweigh the exceptional nature of the offences committed.

Appeal dismissed.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.

1 1. Introduction

1.1 The accused/appellant (who, in order to preserve the privacy of the victims, the Court will refer to as 'Mr. Z') pleaded guilty on the 30th November, 2011, to fourteen sample counts of rape and child cruelty against four of his daughters. Those pleas of guilty were late pleas as, on the previous day, the 29th November, Mr. Z had pleaded not guilty to 271 counts of rape and cruelty. Mr. Z was sentenced by Carney J. on the 9th December, 2011, to life imprisonment on each of the counts of rape and 2 and 7 years respectively (being the maximum sentence permitted in each case) on the counts of cruelty. The remaining counts were, after a discussion with counsel, taken into consideration.

1.2 The sentencing judge had available to him a comprehensive account of the appalling and depraved abuse, both physical and sexual, inflicted by Mr. Z on his four daughters over a prolonged period of time. In all the circumstances, as pointed out, the sentencing judge imposed the maximum sentence permitted in respect of each of the offences and in particular imposed a sentence of life imprisonment in respect of each of the counts of rape. It is as against those sentences, and in particular the imposition of the life penalty, that Mr. Z appeals. While it was accepted by counsel that, as a matter of practicality, it was only the life sentences which would affect the length of time which Mr. Z would spend in prison, nonetheless, it was said that the other sentences were wrong in principle and were reflective of what was said to be the erroneous approach of the sentencing judge. As the question of the appropriate range of sentences available to a trial judge in a case such as this was the subject of some debate at the sentencing hearing, the Court will turn firstly to that hearing.

2 2. The Sentencing Hearing

2.1 In the course of the sentencing hearing, a discussion occurred between the sentencing judge and counsel for the prosecutor/respondent ("the DPP") concerning the appropriate approach to sentencing in a case such as this. Initially, counsel for the DPP submitted that the case was, on its facts, at the top end of the range. There could be little doubt, on the basis of the evidence, that counsel was correct in that regard. It would frankly be difficult to overestimate to the severity of the many cruel and depraved crimes committed by Mr. Z against his own children.

2.2 Thereafter, however, the trial judge sought further assistance from counsel for the DPP in relation to the actual range of sentences which might be considered appropriate for a case of this type being one at the top end of the range. Having taken instructions, counsel submitted that the top end of the range, even in cases where there has been a plea of guilty, permitted either a very lengthy determinate sentence or a life sentence. In that context, counsel made reference to the decision of Charlton J. in the Central Criminal Court in Director of Public Prosecutions v. Drought (Unreported, Central Criminal Court, 4th May 2007).

2.3 The Court should, at this stage, indicate that, in its view, such an exchange is entirely appropriate. For many years it was the practice in criminal courts for the prosecution not to offer any view on sentence as such. Clearly evidence was led as to any circumstances material to the exercise of the courts sentencing role, including evidence as to aggregating factors or as to previous convictions. However, it was not the practice for counsel for the prosecution to offer any view to the trial judge as to how the factors present in an individual case ought convert into an actual sentence or range of sentences.

2.4 Whatever may have been the merits of such a practice in the past, it seems to this Court that such a practice can no longer be justified, at least since the introduction of a system of appeals, on the basis of undue leniency, which can be taken by the DPP (s. 2 of the Criminal Justice Act 1993). It seems to this Court that it is incongruous that the DPP should be entitled to criticise on appeal, on the basis of undue leniency, a sentence imposed by a sentencing judge without having first suggested to the sentencing judge the sentence or range of sentences which it was submitted ought be considered appropriate.

2.5 In that context it is also important to note that there have been developments which ought assist, at least in many types of cases, the prosecution in being able to place such guidance before a sentencing judge. First, this Court has endeavoured, in a number of areas, and in appropriate cases, to conduct an analysis of the case law in relation to sentences for particular types of offences and give some general guidance as to the type of sentences which might be appropriate for offences with a particular level of seriousness along the spectrum. An example can be seen in Director of Public Prosecutions v. Carl Loving [2006] 3 I.R. 355, which sets out a detailed structure in respect of the factors to be taken into account when sentencing for child pornography offences. These factors were recently summarised in Director of Public Prosecutions v. Brian O"Byrne (Unreported, Court of Criminal Appeal, 17th December 2013) (see also Director of Public Prosecutions v. Derrick Stronge [2011] IECCA 79 in relation to the offence of dangerous driving causing death and Director of Public Prosecutions v. Brian Wall [2011] IECCA 45 in relation to undue leniency applications in respect of sentences imposed for offences under s. 15A of the Misuse of Drugs Act 1977). There is no reason why the attention of a sentencing judge should not be drawn to such decisions and submissions made as to where, in the light of the analysis by this Court, the offence in question is said to lie along a spectrum of severity. In many of the cases this Court had endeavoured, as it will do in this case, to identify the principal factors which will ordinarily influence a decision as to where along the spectrum of seriousness of the offence concerned a particular offence might lie. In some cases, this Court may endeavour to provide further guidance as to how such factors may convert into actual sentences. For example, in a judgment delivered today in Director of Public Prosecutions v. Ryan, a formation of this Court (differently constituted in part) sought to give such guidance in relation to sentencing for certain firearms offences. Likewise in a further judgment delivered today in Director of Public Prosecutions v. Fitzgibbon similar guidance is given in respect of assault causing serious harm.

2.6 In addition, there is increasingly information available through the ISIS (Irish Sentencing Information System) project, which provides details as to the range of sentences which are typically imposed by sentencing judges for particular types of offences.

2.7 In this Court"s view, there is now an obligation on the prosecution to draw to the attention of a sentencing judge any guidance, whether arising from an analysis carried out by this Court or from ISIS or otherwise, which touches on the ranges or bands of sentences which may be considered appropriate to any offence under consideration and the factors which are properly, at least in ordinary cases, to be taken into account. In many cases, this should not impose any significant burden on the prosecution for the sources ought be easily recognised. In addition, it seems to this Court that it is incumbent on the prosecution to suggest, where such guidance is available, where the offence under consideration fits into the scheme of sentencing identified and why that is said to be the case. Finally, the prosecution should indicate the extent to which it is accepted that factors urged in mitigation by the defence are appropriate and give at least a broad indication of the adjustment, if any, in the overall sentence...