R.McC. v DPP

JudgeMr. Justice Kearns
Judgment Date25 October 2007
Neutral Citation[2007] IESC 47
CourtSupreme Court
Docket Number[365/2005],[S.C. No. 365 of 2005].
Date25 October 2007
R. McC
C. D

Murray C.J.

Denham J.

Geoghegan J.

Kearns J.

Finnegan J




Criminal law - Sentencing - Point of law of exceptional public importance - Section 29 of Criminal Justice Act, 1999 - Whether the learned trial judge erred in law in imposing concurrent life sentences on the appellants notwithstanding their guilty pleas.

The Court of Criminal Appeal in dismissing the appeals of both appellants against the imposition of concurrent life sentences imposed upon them in respect of their convictions on charges of rape, certified that its decision involved a point of law of exceptional public importance, namely, whether in light of the enactment of s.29 of the Act of 1999, it remains an error of principle for a judge, when imposing sentence, to fail to make allowance for mitigating factors such as an early guilty plea, previous good character etc. The appellants submitted that the sentences imposed were excessive and disproportionate having regard to the circumstances and further that the learned trial judge erred in law by failing to consider the grounds of mitigation.

Held by the Supreme Court (Murray C.J., Denham, Geoghegan, Kearns, Finnegan JJ) in dismissing the appeals: That section 29 of the 1999 Act did not effect a substantial repeal of well established jurisprudence on sentencing in this jurisdiction. It certainly did not require the courts to depart from normal sentencing procedures, including granting a reduction for a timely plea of guilty. However, the presence in a case of 'exceptional circumstances' must be seen, in the light of section 29 as enabling a court, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. There were exceptional circumstances common to both cases herein such as to permit the imposition of life sentences despite the mitigating circumstance of the plea of guilty present in both cases.

Reporter: L.O'S.


JUDGMENT of Mr. Justice Kearns delivered the 25th day of October, 2007


The First Appellant


By certificate dated 4th October, 2005, granted pursuant to s. 29 of The Courts of Justice Act, 1924, the Court of Criminal Appeal, in dismissing the appeal against the concurrent life sentences imposed upon the first appellant on 24th day of May, 2004, in respect of his conviction in the Central Criminal Court on 15th March, 2004 on charges of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981 and s. 48 of the Offences Against the Person Act, 1861, certified that its decision involved a point of law of exceptional public importance which it framed in the following terms:


"Whether, in the light of the enactment of s. 29 of the Criminal Justice Act, 1999, it remains an error of principle for a judge, when imposing sentence, to fail to make allowance for mitigating factors such as an early guilty plea, absence of previous convictions, remorse and sustained efforts at rehabilitation, without prejudice to whether there was such failure in the present case".


S. 29 of the Criminal Justice Act, 1999 provides, in relevant part:


"29(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account

  • (a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

  • (b) the circumstances in which this indication was given.

    (2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence".




This appellant, a former soldier, was born on 14th December, 1954. He was married in 1977 and is the father of seven children. On 15th March, 2004, the appellant pleaded guilty in the Central Criminal Court to 20 counts involving sexual offences against two of his daughters and four of his nieces. There were eight counts of rape, one count of attempted rape, four counts of sexual assault and seven counts of indecent assault. The offences commenced in 1986 and involved his two eldest daughters, who at the time were young girls under ten years of age. The pattern of offences, which extended to his nieces, equally of extremely tender years, continued until 1997. His two daughters eventually made a complaint to the gardaí in November, 1999. He was discharged from the army following


his arrest on 6th September, 2000, and lived alone in a flat for four years until his case came before the Central Criminal Court.


One of many tragic aspects of this case is that the appellant's sexual offending had come to light in 1987 at which point in time he made admissions to the Gardaí and sought counselling to help him cope with his sexual disinhibitions. A file was sent to the Director of Public Prosecutions at that time, but a decision not to prosecute was made. The offences involving his nieces occurred in the years that followed. It is clear from the victim impact evidence in this case that all six girls were severely traumatised.


The appellant has no previous convictions. He provided statements to the Gardaí following his arrest and indicated his willingness to plead guilty and to co-operate with the Gardaí at an early stage. He also participated in a COSC Sex Abuse Treatment and Prevention programme in his local Health Board area and underwent individual psychotherapy.


In imposing sentence in the Central Criminal Court, Carney J. took the view that if he were to impose consecutive sentences of a determinate nature, the minimum sentence which he could impose, having regard to the multiplicity and gravity of the offences, would be of the order of 30 years. He decided against that course because it would remove any role for the Parole Board which, because of the nature of its role as later described herein, might have provided some opportunity for early release for the appellant. In considering the imposition of a life sentence, the learned trial judge noted that when a person is released pursuant to a recommendation of the Parole Board after serving a number of years of a life sentence, it is on license and the person is subject to recall. He stated that any such person could be made the subject of an exclusion order which would preclude him from going to certain places, and in particular to places where his victims might reside. He further noted that the Parole Board could open a file in respect of any sentenced person after a period of four years and make recommendations after eight years. In that context, the Parole Board was empowered to review the circumstances both of the accused and his victims.


He certified the appellant as a sex offender and imposed concurrent life sentences in respect of the rape offences and sentences of four years in respect of the indecent and sexual assault offences, the same to be served consecutively in respect of each victim though concurrently with each other.


The trial judge granted a certificate for the purpose of an appeal to the Court of Criminal Appeal. The Court of Criminal Appeal delivered judgment on 12th May, 2005.


In the course of delivering the judgment of that court, Fennelly J. noted that the trial judge had largely relied upon the judgment delivered by the Court of Criminal Appeal in the second of these appeals, namely, The People at the suit of the Director of Public Prosecutions v. D [2004] IECCA 8, a case in which it had been urged upon the court that the accused had pleaded guilty and made a comprehensive statement to the gardaí at the earliest opportunity, a fact notwithstanding which the court in that case had upheld life sentences for a number of rape offences. The Court of Criminal Appeal had held it could interfere with sentences only if it could be shown that there was an error of principle involved. While no reference had been made by the sentencing judge to s. 29 of the Criminal Justice Act, 1999, McCracken J. in delivering the judgment of the court had held there could be no error of principle if the learned trial judge was satisfied there were exceptional circumstances such as would warrant a maximum sentence. McCracken J. had continued:


"In effect, this section outweighs any suggestion in the earlier cases that as a matter of principle a discount must be given for an early plea of guilty."


Fennelly J. in DPP v RMcC noted at p.6 that the decision in the Director of Public Prosecutions v. D :


"represents a departure from the earlier line of authority to the effect that it is an error of principle not to give credit for an early plea of guilty and expressions of remorse even for the most heinous of sexual offences."


Fennelly J. was of the view that the court must have based its decision on s. 29 of the 1999 Act, as otherwise the Court of Criminal Appeal could not have failed to follow earlier binding Supreme Court decisions which require that a discount in any sentence imposed should follow a guilty plea.


In the concluding part of his judgment, Fennelly J. stated at p. 6:


"It is beyond doubt that the offences in the present case are of extraordinary gravity and that the appellant merits the severest punishment. The alternative to life imprisonment would, on the facts of this case, have been consecutive sentences for a determinate period. If the calculation of such cumulative sentences had totalled as much as thirty years, a figure suggested by the learned trial...

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