Neutral Citation Number:  IECCC 1
THE HIGH COURT
CENTRAL CRIMINAL COURT
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 7th day of June, 2013
1. Following a four-day trial, N.C. was convicted by a jury on 21st February, 2013, of raping O.B. on two occasions and of indecently assaulting her on two other occasions over an eight month period between September, 1985 and May, 1986 when O.B. was fourteen and N.C. was twenty four. N.C. has been in custody since 21st February awaiting sentence.
2. These offences occurred in circumstances where O.B. was babysitting for her older sister and the defendant who were then married to each other. Each offence occurred when the defendant had returned from a night’s drinking with his wife and mother in law.
3. During this particular eight month period, O.B. when babysitting stayed overnight in her own room in the family home.
4. On the first occasion N.C. entered O.B.’s bedroom, he fondled her genitals and had sexual intercourse with her. O.B. was very shocked by this. A similar incident occurred some three months later.
5. The first indecent assault occurred within four to six weeks of the second rape when N.C. having touched the victim’s genitals got her to touch his penis. This touching stopped when N.C. heard a noise downstairs.
6. The final incident occurred a number of months later when N.C. again entered the victim’s bedroom and touched her in the genital area, but left almost immediately having been called by his wife.
7. Following this last incident, O.B. noticed the following morning that her sister was pregnant and decided at that point not to baby-sit again.
8. She returned later that week when she knew N.C. was at work and told her sister “I cannot baby-sit for you anymore. Please don’t ask me why, I just can’t do it”.
9. In considering what is the appropriate sentence in this case, it is the function of this Court to apply what is known as the principle of proportionality, to reconcile that principle, insofar as possible with the aim of rehabilitation. As has been previously stated by the Court of Criminal Appeal, each case must depend upon its special circumstances. The appropriate sentence depends not only on its own facts, but also on the personal circumstances of the defendant. The sentence to be imposed is not the appropriate sentence for the crime but the appropriate sentence for the crime because it has been committed by this defendant.
10. Finally, in a case such as this where the defendant has been convicted of more than one offence, it is the court’s duty to consider what is called the totality principle. In the present case this means considering whether or not the sentences to be imposed should run concurrently.
11. In the second edition of Sentencing Law & Practice published by Round Hall in 2006, Professor O’Malley says at para. 507:-
12. When further considering this principle of proportionality, Professor O’Malley goes on to refer to the Supreme Court judgment of Henchy J. in the State (Healy) v. Donohue  I.R. 325, where he said that the constitutional guarantees to due process, fundamental rights and personal liberty:-
“The dominant principle of Irish sentencing law is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender.”
13. Professor O’Malley points out that while the above quoted statement does not use the language of proportionality, it clearly envisages a sentencing system informed by proportionality standards and says that several later judgments in which proportionality was expressly endorsed have taken this statement by Henchy J. as their starting point.
“necessarily (imply) at the very least a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner or in circumstances calculated to shut him out from a reasonable opportunity of establishing his innocence or where guilt has been established or admitted of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances.”
14. Professor O’Malley goes on to say:-
Submissions of Counsel
15. Counsel for the Director of Public Prosecutions told the court that the appropriate sentence lay in the eight to twelve year range and referred the court to the judgment of Charleton J. in Director of Public Prosecutions v. W.D. delivered on 4th May  IEHC 310. This judgment breaks sentencing in rape cases into four separate categories:-
“A criminal trial must be fair and conducted in due course of law. If sentencing is part of the trial process, that too must incorporate the same qualities. The entitlement to a fair trial belongs explicitly to the accused person. Sentencing must, therefore, be above all else fair to the accused. That is precisely what the present proportionality standard requires with its emphasis on individual culpability and personal circumstances.”
16. In addition, counsel for the D.P.P. suggested a further judgment of Charleton J. in Director of Public Prosecutions v. P.H.  10 JIC 1502, as a possible comparator. In further support of her submissions on behalf of the D.P.P., counsel submitted that the following aggravating factors were relevant:-
(1) Any penalty including a suspended sentence up to a sentence of three years imprisonment,
(2) Sentences from three years imprisonment to eight years imprisonment,
(3) Sentences from eight years imprisonment to twelve years imprisonment, and
(4) Sentences in excess of twelve years imprisonment.
17. This Court accepts the prosecution submissions concerning the relevance of these aggravating factors.
(1) The age of the victim at the time of the offences;
(2) The number of offences, namely two counts of rape and two counts of indecent assault;
(3) The duration of the offending. The offences took place over an eight month period;
(4) The breach of trust involved in that the offences were committed by an older family member for whom the victim was babysitting; and
(5) The impact the offences had on the victim as disclosed in the Victim Impact Statement.
18. Counsel on behalf of the defendant submitted that the court should take into account the fact that the defendant not only has no previous convictions, but also the additional garda evidence to the effect that he was a person who had never come to the unfavourable notice of the gardaí either before or since the commission of these offences. Defence counsel also asked the court to take into account the defendant’s excellent work record. He had been employed at different times as a butcher, a barman and a quality controller in a local factory.
19. Defence counsel described the defendant as a man who did not have a nuanced understanding of the ways of the world and as someone who had a poor educational background. He submitted that his capacity for work and commitment to his present family was evidenced by the fact that at one point he and his partner worked back to back twelve hour shifts in a local factory to provide some additional comforts for their children.
20. He also asked the court to take into account the fact that the defendant was now in a stable relationship. He told the court that he has been living with his partner for the past fifteen years and that they have three sons aged three, seven and eight. He told the court these children have two sisters aged thirteen and twenty.
21. Counsel told the court that the defendant’s eight year old son has Aspergers Syndrome and his seven year old suffers from a fairly severe form of Autism. Counsel told the court that these children require constant supervision and assistance which the defendant and his partner have been providing. The court received reports relating to these children on 30th May, 2013.
22. Finally, defence counsel submitted that a careful reading of the judgment in the case of the Director of Public Prosecutions v. W.D. would suggest that the offending in this case fell into the second category as distinct from the third category as advocated by counsel for the Director of Public Prosecutions.
23. The first task this court has is to identify the range in which these offences are located and then to identify the point on that range.
24. This Court considers that the facts in P.H. are in a more serious category to those in the present case, not least because the offending in P.H. took place over a six year period and the abuse of the complainant in that case commenced when she was eight years old.
25. In considering the appropriate sentence in this case, the most important matter this Court must acknowledge is the huge suffering endured by O.B. as a result of being raped by N.C.. While she showed courage and independence by refusing her own mother’s demand that she continue babysitting, this Court notes that the offending took place in a family context where the victim had no adult support at the time. She told the court how her step-father had died when she was eight and her natural father when she was twelve. She described her mother at the time as a drinker and a cold woman who never showed her any affection. She further told the court that she was unable to confide in her mother. It was in this context that the offending occurred.
26. While this Court agrees with the submission of defence counsel concerning the range, it holds that in light of the aggravating factors and, in particular, the impact of these offences on the victim, the offences lie at the top end of the midrange and accordingly, this Court identifies seven years as the appropriate sentence in respect of the rape counts in the absence of mitigating factors.
27. The fact that the defendant is a 52 year old man without previous convictions is a significant mitigating factor. Secondly, the fact that these offences were committed 27 years ago allows this Court to hold in the absence of any contrary suggestion that the defendant had self rehabilitated and is not a person in need of further rehabilitation. Implicit in this finding is the fact that the defendant poses no risk of re-offending and, therefore, that a post-release supervision order is not required in this case.
28. The final consideration that this Court has to take on board relates to the defendant’s present family circumstances.
29. In a report dated 22nd May, 2013, the doctor of the defendant’s partner states:-
30. This Court has also been furnished with a letter from the class teacher of the defendant’s second son, L., who is a member of a six pupil junior class within an autism unit. He is seven years old, functions within the moderate range and is described as a non-verbal child whose behaviour and progress has already rapidly deteriorated since his father’s imprisonment following his conviction in April.
“The above lady’s partner is at present incarcerated. This is a very difficult situation for her to be left in. She has two children who are autistic and require twenty four hour care and attention. Her youngest son has not yet been diagnosed with autism but has many medical health issues and is a frequent attender to our services, as are her two autistic children. This is putting a huge strain on her as not alone is she caring for her young family without her partner, she also has to care for her invalid father.”
31. This Court has also been furnished with a psychological report on C., the defendant’s oldest child. This report indicates a diagnosis of Aspergers Syndrome and emphasises among other matters the need for active parenting.
32. The task that this Court is presented with is how to construct a sentence that takes into account the seriousness of the crimes committed by N.C. 27 years ago, while at the same time bearing in mind the special demands of his young family which require his fulltime presence as an active father. The judgment of the Court of Criminal Appeal in the case of the Director of Public Prosecutions v. O’Callaghan delivered on 21st June,  IECCA 52, by Denham J., is relevant. In that case, the defendant pleaded guilty at a very late stage to possession of firearms with intent to commit burglary at a bank in Dublin, and was also found to have pointed a gun at a member of An Garda Síochána in the course of a high speed chase from the crime scene.
33. Two important factors were that the defendant who was then 40 years of age had been in no trouble for the five year period between the time of the offence and the date of the sentence, and also a HSE report which expressed serious concerns for the wellbeing of the defendant’s son were he to be sent to prison. The Court of Criminal Appeal refused to hold that a five year sentence, suspended for ten years in this case, was an unduly lenient sentence.
34. It is clear that the imprisonment of N.C. will impose extreme hardship on his family, particularly on his partner and his son, L.
35. This Court cannot ignore the impact that a sentence of imprisonment in this case would have on them as well as on his other children.
36. The evidence in this case disclosed that the defendant not only has the capacity to remain an effective parent, but also that it is in his family’s interest as well as society’s interest that the family unit in this particular case be preserved and supported. This Court finds that the circumstances of the defendant are wholly exceptional. Notwithstanding the seriousness of the offences of which N.C. has been found guilty, this is one of those rare occasions when it is appropriate for this Court to impose a suspended sentence.
37. Accordingly, this Court will impose sentences of seven years imprisonment in respect of both rape offences, each sentence to be suspended for a period of five years provided the defendant enters into a bond to be of good behaviour towards all the people of Ireland for that period of time.
38. The court will impose sentences of two years imprisonment in respect of both indecent assault charges, each of those sentences to be suspended for one year provided the accused enters into a bond to keep the peace and be of good behaviour towards all the people of Ireland for that period of time.
39. Taking into account the principles of totality, this Court directs that all sentences be concurrent.
40. The defendant can enter into the said bonds before the Governor of the Prison where he has been detained for the past three months.