People v M

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Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

JUDGMENT delivered on the 26th day of July 1994 by EGAN J. [FINLAY, O'FLAHERTY, BLAYNEY agR]

On the 27th November, 1992 the appellant was sentenced to the following terms of imprisonment following his pleas of guilty in the Central Criminal Court:-

Count 3:

Buggery with a male person on a date unknown in 1989 contrary to section 61 of the Offences against the Person Act, 1861.

Sentence imposed: Eighteen years penal servitude.

Count 13:	Buggery with the same person on a date unknown in May, 1990 contrary to the same section. Sentence imposed: Eighteen years penal servitude.
Count 20:	Buggery with another male person on a date unknown in Autumn 1989 contrary to the same section. Sentence imposed: Eighteen years penal servitude.
Count 30:	Indecent assault on a date unknown in the first week of November, 1991 contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. Sentence imposed: Four years imprisonment.
Count 43:	Indecent assault on a male person contrary to section 62 of the Offences against the Person Act, 1861. Sentence imposed: nine years imprisonment.
Count 44:	Indecent assault on a male person on a date unknown between January 1985 and December 1985 contrary to section 62 of the Offences against the Person Act, 1861.

Sentence imposed: Nine years imprisonment.

Count 61:

Sexual assault on a date unknown in February, 1991 by the insertion of his penis in the anus of another person contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990.

Sentence imposed: Eighteen years imprisonment.

Count 62:

A similar sexual assault on a date unknown in September, 1991 on the same person.

Sentence imposed: Eighteen years imprisonment.

The appellant now appeals to this Court against the severity of these sentences.

The appellant was at the time of the commission of the said offences a Brother in Religion and the victims of the assault were young boys at the school at which he was teaching. They were aged between ten and twelve years at the times of the commission of the various offences.

The notice of appeal sets out three grounds:-

(a) That the sentences passed by the learned trial judge were excessive and inappropriate having regard to the circumstances of the case.

(b) That the learned trial judge erred in the circumstances of the case in failing to permit the appellant to complete a course of treatment being undergone by him in relation to his offences either as an alternative to or prior to the imposition of a custodial sentence upon him.

(c) That the learned trial judge erred in law in finding himself constrained in the circumstances of the appellant's case by the decision of this Court in the case of The Director of Public Prosecutions v. Edward Tiernan 1988 I.R. p. 250.

Ground (b) was not pursued as the Court was informed that treatment is no longer available in the institution where the appellant had been getting attention. The arguments which were advanced to the Court on behalf of the appellant were to the effect that no weight or no sufficient weight had been given by the learned trial judge to many mitigating factors which can be summarised as follows:-

1. The appellant's age. I will refer to this later.

2. The background of the appellant who entered into religious life at a very early age, his work as a teacher in religious communities of only two or three members which meant that he did not have the support of a large community thus indicating an isolated life.

3. When confronted with allegations in reference to misconduct with two of the six boys involved in this case, he admitted his guilt.

4. He gave considerable assistance to the gardai by making written confessions in regard to the other four boys involved without which the learned trial judge accepted that perhaps some of the charges preferred against the appellant might not be sustainable.

5. He committed himself apparently wholeheartedly to psychiatric treatment when it was available.

6. He has shown remorse and this was accepted by the learned trial judge.

7. Imprisonment is particularly difficult for a child abuser and the appellant for his own protection, had to spend a period in solitary confinement.

8. The community of which the appellant is a Brother is strongly committed to him and to helping him and supervising him when he leaves prison.

9. He has shown strength of character by coping successfully with the problem of alcoholism.

It was also urged before the learned trial judge that paedophilia was a disease and this was accepted by him. There was no evidence, however, to suggest that it was incapable of control and the fact of there being a strong element of compulsion in the condition highlights the necessity of protecting young children from the resulting misconduct.

There can be no doubt whatever but that the appellant committed very serious offences. The majority of the six children involved have been disturbed and damaged and will require continued psychiatric counselling. It must also be remembered that there was an appalling breach of trust by the appellant towards the parents of the boys and the six innocent boys themselves.

To my mind the most important mitigating factor in the case is the fact that the appellant admitted his guilt promptly and has pleaded guilty at his trial. This Court recognised that this was an important mitigating factor in cases of rape: D.P.P. v. Tiernan 1988 I.R. p. 250. It is only right and proper that this should be so as many victims of rape endure considerable worry about the prospect of giving evidence in Court and refuting allegations that they are not telling the truth. In regard to very young boys the worry about giving evidence would be at least as bad, if not worse.

Another factor in the case is the question of the likelihood of a recurrence of the misconduct on the release from prison of the appellant. During the years when the offences were committed he was constantly in the company of young boys who were an undoubted temptation for him having regard to his propensities. If he returns to his religious community his superiors will see to it that he will not have the same opportunities and, should he seek a post elsewhere, it would seem unthinkable that a reference would not be sought from his present superiors.

His age, to which I have already referred, appears to me to be relevant. The appellant at the time he was sentenced in the Central Criminal Court in November 1992 was just over 50 years of age. If he were to serve the sentence imposed on him on that occasion in regard to the more serious counts on which he appeared without making any allowance for remission of sentence due to good conduct he would be 68 years of age when he left prison. If one makes an assumption that he would earn a maximum remission by good conduct his age on release might be in the mid 60s.

As was stated in the judgments of the Court of Criminal Appeal in The People at the suit of the Attorney General v. O'DriscollFrewen Vol. 1 p. 351 and in The People at the suit of the Attorney General v. Poyning 1972 I.R. an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the...

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