The People (Director of Public Prosecutions) v Maher

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 09 June 2016
• Neutral Citation: [2016] IESC 31
• Docket Number: [S.C. No. 10 of 2015],10/15
• Court: Supreme Court
• Date: 09 June 2016

[2016] IESC 31

THE SUPREME COURT

O'Donnell Donal J.

10/15

Denham CJ

O'Donnell J

Clarke J

MacMenamin J

Laffoy J

Charleton J

Between

The People (At the Suit of the Director of Public Prosecutions)

Appellant

and

James Maher

Respondent

Crime & sentencing – Sexual offences – Multiple serious offences against children – Appropriate sentence

Facts: The respondent had been convicted of multiple counts of sexual assault against two children. He had been sentenced to a term of two years in prison, for all counts running concurrently. The DPP considered the sentence to be lenient, and sought review in the Court of Appeal. The Court of Appeal had found that the judge had not fallen into error in respect of the maximum sentence available, but that the sentence was unduly lenient in any event. The DPP now sought to appeal to the Supreme Court, stating that the matter involved a point of law of importance.

Held by Mr Justice O?Donnell, that the appeal would be allowed in part. The Court reviewed the legislative history involving such offences and disagreed with the conclusion of the Court of Appeal in respect of the effect of the earlier case of S(M) v Ireland & Ors (No.2) [2007] 4 IR 369. This had the effect of limiting the maximum penalty for indecent assault on a male to what the equivalent penalty of assault on a female was. It did not have the effect of limiting that maximum to two years? imprisonment specifically. S(M) v Ireland & Ors (No.2) [2007] 4 IR 369 considered.

In respect of the sentence handed down by the Court of Appeal, the Court was minded to let the sentence stand.

Judgment of O'Donnell J. delivered on the 9th day of June 2016

1 The respondent to this appeal pleaded guilty on the 14th of February 2012, to 5 counts of indecent assault contrary to common law in relation to a boy. On 10th July 2012, the respondent pleaded guilty to a further 14 counts of indecent assault on another boy. The five counts relating to the first complainant occurred during 1984. The other 14 counts relating to the second complainant occurred between 1982 and 1984. At the time relevant to the offences the maximum penalty provided by statute for indecent assault upon a male person was 10 years' imprisonment by virtue of section 62 of the Offences Against the Person Act 1861. However, it is now said on behalf of the Director of Public Prosecutions that the learned Circuit Court judge was erroneously informed by counsel for the prosecution that the effect of the decision of the High Court inS(M) v. Ireland & Ors (No.2) [2007] 4 I.R. 369 (? S(M) (No.2)?), was that the offence attracted a maximum penalty of two years on each count. (Transcript 19/11/ 2012, p.18). The Circuit Court judge then sentenced the respondent to two years' imprisonment on all counts, to run concurrently.

2 The Director of Public Prosecutions applied to the Court of Appeal under the provisions of section 2 of the Criminal Justice Act 1993, for a review of the sentences on the grounds that it was alleged that they were unduly lenient. The Court of Appeal delivered judgment on the 10th of February 2015, holding that the Circuit Court judge had not been in error in treating the maximum penalty available as that of two years on each count, but also considering that the sentence as a whole was unduly lenient and that some element of consecutive sentences should have been applied. Accordingly, the Court of Appeal altered the sentence on Count 27 to one year consecutive on the expiry of the two year concurrent sentences on the other counts so that the total sentence became three years. By the time the appeal was heard however the respondent had already served the initial sentence imposed by the Circuit Court judge, and accordingly had to return to prison to serve the balance of the sentence now imposed by the Court of Appeal. The Director of Public Prosecutions was not satisfied with this determination either as a matter of law (since it had the effect of determining that the maximum sentence available for indecent assault upon a male which occurred between 1981 and 1990 was 2 years' imprisonment, with possible further consequences for the maximum penalty for indecent assault upon a female committed during the same period) or in the sentence applied, and applied to this Court for leave to appeal. By a determination of the 10th of July 2015 ( [2015] I.E.S.C. DET. 25) a panel of this Court granted leave to appeal on the grounds that the case involved a point of law of general public importance.

The Statutory Background

3 Few areas of law have undergone as many and significant changes as the Irish law relating to sexual offences, reflecting perhaps considerable differences in public attitudes over time. This has given rise to much legal difficulty. An agreed starting point however for the purpose of this case, is that indecent assault is an offence at common law and is gender neutral; that is that the gender of the victim (or indeed the perpetrator) is not a constituent of the offence. For more than 100 years however, the sentencing provisions applicable in Ireland distinguished between indecent assault upon males, and those committed on females. The Offences against the Person Act 1861, provided for the separate punishment of indecent assaults. Thus, section 52 of the 1861 Act appears under the heading ?Rape, Abduction, and Defilement of Women? and provided:

?Whosoever shall be convicted of any indecent assault upon any female ? shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.?

Section 62 of the same Act which dealt with indecent assault upon a male person is contained in the section headed ?Unnatural Offences?. Section 61 provided for sentence for the ?abominable crime of buggery committed either with mankind or with any animal? and section 62 provided:

?Whosoever shall attempt to commit the said abominable Crime, or shall be guilty of any Assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable ? to be kept in Penal Servitude for any Term not exceeding ten years ??

The reference to penal servitude can now be ignored, by virtue of, inter alia, the provisions of section 11 of the Criminal Law Act 1997. Accordingly it can be said that the 1861 Act provided that indecent assaults upon a male would attract a sentence of up to ten years' imprisonment whereas indecent assaults upon females would attract a sentence of two years. Given the sections of the Act in which the relevant provisions are contained, and the fact that the Act itself criminalised male homosexual behaviour (while not referring to female homosexual activity) it seems likely that the differentiations in sentence did not depend, solely or perhaps at all, on a less serious view being taken of sexual assaults upon females. Rather, it seems likely that the Act was drafted on an assumption that the perpetrators of such offences would be males, and given the fact that the Act also criminalised consensual male homosexual activity, the heavier sentence for indecent assault upon a male reflected the Victorian condemnation of both indecent assault, and male homosexuality. This all illustrates however the difference in attitudes to sexual matters between the mid-Victorian period, and the late 20th century.

4 The next relevant legislative step was the Criminal Law (Amendment) Act 1935. This was a major piece of indigenous legislation introduced in the aftermath of the Carrigan Report. It was paternalistic legislation reflecting very clearly the public mores of its times and addressed questions such as the age of consent, and the importation of contraceptives. It was characterised as legislation for the protection of women and young girls. It also made some slight changes to the penalty for indecent assault on a female person, by permitting heavier penalties for repeat offenders. Thus section 6 of the Act provided:

?In lieu of section 52 (repealed by this Act) of the Offences against the Person Act, 1861, as amended by section 19 of the Criminal Law Amendment Act, 1885, it is hereby enacted that whosoever shall be convicted of any indecent assault upon any female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years.?

5 The apparent inconsistency between the punishment for indecent assault upon a female and that upon a male, was sought to be addressed by the Criminal Law (Rape) Act 1981. Section 10 of that Act provided as follows:

?(1) If a person is convicted on indictment of any indecent assault upon a female he shall be liable to imprisonment for a term not exceeding 10 years.?

(2) Section 6 of the Criminal Law Amendment Act, 1935, is hereby repealed.?

This provision had the effect of equalizing the penalty for indecent assault and removing any distinction in penalty between assault upon males and those upon females. However, and crucially for present purposes, it did so by separate legislation. Thus it could be said that the gender of the victim remained relevant at least for the purposes of identifying the separate statutory authority for the imposition of the sentence. The legal provisions imposing penalties were therefore, in a sense, separate but equal. This separate provision did not reflect any underlying philosophical or ideological approach: it was probably no more than a consequence of the separate statutory treatment of...