The People (DPP) v Byrne

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 July 2015
• Neutral Citation: [2014] IECA 45
• Docket Number: [CCA No. 84/2007],[103/14]
• Date: 28 July 2015

[2014] IECA 45

THE COURT OF APPEAL

The President

Peart J.

Irvine J.

[103/14]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Michael Byrne

Appellant

Sentencing - Indecent assault - Severity of sentence - Appellant seeking to appeal against severity of sentence - Whether the serious aggravating features were sufficient to warrant the placing of the case at the higher end

Facts: The appellant, Mr Byrne, pleaded guilty in September, 2013 to four counts on the indictment as sample counts on the understanding that the remaining counts would be taken into consideration. The indictment contained 15 counts of indecent assault perpetrated against his victim between January, 1975 and March, 1978. The appellant was a secondary school teacher at the time, which gave him a position of esteem and responsibility in his own community and gave him a position of authority and control over his young victim. The appellant was sentenced in April, 2014 to two years imprisonment on each of the counts with the other counts taken into account to two years imprisonment, the maximum sentence of imprisonment on those four counts, totalling eight years imprisonment. The trial judge then suspended the latter four years of that, leaving a custodial sentence of four years and a suspended sentence of a further four years. The appellant appealed to the Court of Appeal, submitting that this was not one of the worst cases in regard to the acts themselves. Therefore, he proposed that because there could be worse cases, the proper approach to take is to locate the gravity of the offence at a point lower on the scale.

Held by the President that the Court should reject the appellant's submission that this was not the worst of the crimes and therefore that there should have been an allowance made so the judge should have started at a lower point in the scale of zero to two years and then he should have applied some mitigation to that. The Court took this view on the basis that in all the circumstances, taken properly into account in the case, whatever might be said about the specific and narrow point made by the appellant about the individual acts, taken as a whole and in context, it was legitimately and properly viewed by the judge as being at the top of the scale. The Court was satisfied that the serious aggravating features were sufficient to warrant the placing of the case at the higher end. The President held that the trial judge placed a good deal of reliance on the fact in mitigation of the pleas of guilty, which he said meant if the case went to trial, the victim would have been subjected to cross-examination; he took account of the accused's personal circumstances, his family circumstances, the illness of his wife, and in the course of a lengthy analysis, he arrived at his conclusion. The president noted that having reached the total of eight years imprisonment, the trial judge applied a generous reduction of a full half of that period of time. That seemed to the Court to represent an allowance that adequately covered all the points that might be made in mitigation. It was also held to be the case that if one took a different approach to the case, and if one were to accept the proposition that the cases, as they stood on their own, were to be located at some lower point on the scale, in circumstances where, because of the repetition of the offences over a period of years, it would have been perfectly proper, as the judge did, to take consecutive sentences into account, that it seemed to the Court that the ultimate result would not have been different from the outcome as arrived at by the trial judge by the mode or method that he adopted. By adding them up at two years and taking half of that off, the result, had he adopted a different approach, would have been, in the view of the Court, precisely the same thing.

The President held that in the circumstances, the Court was not satisfied that there was any error in principle and the Court rejected the appeal as to the severity of sentence.

Appeal dismissed.

JUDGMENT of the COURT (Ex tempore) delivered by The President on the 19th day of December 2014

1 The appellant herein is Mr. Michael Byrne and he is now 77 years of age, having been born on 25th May 1937.

2 He pleaded guilty on his trial date in September 2013 to four counts on the indictment as sample counts on the understanding that the remaining counts would be taken into consideration. The indictment contained 15 counts of indecent assault perpetrated against his victim between January 1975 and March 1978.

3 The applicant was sentenced on 10th April 2014 to two years imprisonment on each of the counts with the other counts taken into account to two years imprisonment i.e. the maximum sentence of imprisonment on those four counts, totalling eight years imprisonment. The learned trial judge then suspended the last or the latter four years of that, leaving a custodial sentence of four years and a suspended sentence of a further four years.

4 The victim in this case was born in March 1963. He was aged between 11 years and 15 years at the time when these crimes were committed on him. The appellant was aged in his late 30s and early 40s at the time. The appellant was a secondary school teacher at the time, a matter of real significance in this case, which gave him a position of esteem and responsibility in his own community and it gave him a position of authority and even control over his young victim.

5 The offending occurred in a number of different venues over the period of years that I have mentioned. It began with what we now know is calculated grooming behaviour and progressed, getting gradually more intrusive and gradually more offensive. First, there was touching or groping and that developed into circumstances where the appellant masturbated the boy. This happened on a regular and frequent basis over the period of years. It involved, not just abuse of power and authority by the appellant, but also deceit. The boy had had a medical condition for which he had been treated and the appellant exploited this for his nefarious ends by saying he needed to get sperm samples in order to check the boy's condition. He pursued this policy over a long period of time, giving credence to the deceit by actually collecting samples. It got worse because he told the boy that the quality of the sample would be better if the boy was more aroused, so there was a degree of planning, calculation and exploitation in the manner in which he behaved.

6 These features that I have mentioned are recognised in all authorities as being indicative of serious, aggravating features of sexual crimes, namely, dominant position, abuse of trust, length of time during which abuse happened and active deceit perpetrated over years. The trial judge expressed the essence of this when he said:

‘In respect of the sexual abuse, Mr. Byrne was a teacher, as I have already outlined, to his esteem in the local community. He was in a position of trust, respect, confidence, he was in a dominant position by reason of his position and also he was supervising children in respect of the band and any parent, including the children, were entitled to feel safe if they were in his company. The abuse was cold, calculated and premeditated and I can only describe the conduct of Mr. Byrne as acting as a predator in respect of the boy. The abuse was systematic abuse and I describe the abuse as revolting, disgusting, horrific, embarrassing and humiliating.’

and he went on in similar vein.

7 The trial judge determined that the appropriate sentence, accordingly, was two years in respect of each of four sample counts, taking the others into account, and then he discounted that whole thing by four years. The appellant proposes, through Mr. Gageby, his Counsel, first of all he says this was not one of the worst cases in regard to the acts themselves. Therefore, he proposes that because there could be worse cases, the proper approach to take is to locate the seriousness, the gravity of the offence at a point lower on the scale, so to speak.

8 The first point about that is that in an offence of which the maximum, for reasons that we need not concern ourselves with, the maximum penalty was two years. The scale is necessarily a narrow one. Having said that, it is the view of this Court that the relevant features of the case, the relevant features of the crime must be taken into account. There is clear authority to say that the approach the sentencing Court, and indeed an Appeal Court takes, is to look at the crime as committed by the accused to decide whereabouts that is to be located on the scale of gravity or heinousness. The crime in all its circumstances, and those circumstances include the ones that I have mentioned, the circumstances of the crime also include the impact on the victim. In this case, the Court below had a most powerful exposition of the impact on the victim in this case and how, although making a very considerable success in his life, he had found himself in his mid 40s having a major crisis. He explained all that to the Court and, as it would do to any Court, it impressed the learned Circuit judge who was dealing with the matter. It is powerful and poignant and impressive. That was part of the circumstances that had to be taken into account and the Circuit judge referred to them.

9 In considering the circumstances taken into account by the trial judge, there was an unfortunate feature in that it was stated, as it had been in evidence, that Mr. Byrne, the accused, had previous convictions for indecent assault. Those are not precisely the words that were used by the Garda who was the investigating Garda giving evidence, but it seems to the Court that that was the essential impact. That was not corrected by anybody, but it turns out not to...