Neutral Citation:  IECCC 1
THE HIGH COURT
THE CENTRAL CRIMINAL COURT
[2012 No. 0099 CCDP]
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 6th day of February, 2014
1. Following a four day trial A.B. was convicted by a jury on the 12th December, 2013, on all counts on the indictment namely, thirteen counts of rape and six counts of indecent assault against his daughter, X., and eleven counts of rape against his daughter, Y.
2. The offences occurred over a thirteen-year period between 1975 and 1988. The earliest conviction in relation to the elder daughter, X., occurred when she was six or seven years old, and the earliest conviction in relation to the second daughter, Y., occurred when she was about five years old.
3. At the sentence hearing on the 25th January, 2014, the defendant stated that he was now admitting all the offences the jury had convicted him of and that he would not be appealing these convictions. Through his counsel he publicly apologised to his two daughters.
4. The defendant, A.B., who is now seventy years of age lived with his wife and their eight children at three different locations in a town in South East Ireland.
5. While his family was quite young, the defendant suffered from a heart condition which rendered him unfit for work and resulted in his receiving a disability pension. His wife went out to work and the offences occurred when each girl was alone at home with her father.
6. In relation to the elder daughter, X., the sexual abuse continued until she was nineteen years of age. In the case of his second daughter, the abuse continued until she was fifteen years old.
7. When X. was eleven years old she told her mother what was happening. Her mother confronted her father but the abuse only stopped for a short while. It resumed a short while later.
8. Both X. and her sister, Y., were afraid to say anything about being raped because they were in fear of what their father might do.
9. The defendant's criminal behaviour ceased when Y. was fifteen years old in circumstances where X. realised following a family row that her sister Y. was being abused by her father. X.'s intervention at that point ensured that her sister had sufficient support to prevent the defendant committing further offences against her. Both X. and Y. described their father as a house-husband.
10. While the offending ceased in 1988, the first complaint to An Garda Síochána was made in 2010.
Victim Impact Statements
11. X. and Y. in their different ways have shown great courage and resilience in the face of the suffering they endured while growing up. X. has reared her own family, and Y. is in responsible and important employment abroad.
12. In her Victim Impact Statement X. stated as follows:-
13. Y. in her statement said as follows:-
"I would like to start by saying as a very young child I grew up feeling very frightened of the opposite sex. I was afraid to be left alone in any male's company as I believed they were all the same. It took years for me to realise that all men were not like that. I feel that a lot has been taken from me in my life.... I would have loved to have been a normal teenager. I was very into myself and my mother was my best friend. When I met my ex-partner we got on very well. We had a great relationship and went on to have two daughters. The relationship went downhill when he found out what had happened to me. He found it hard to cope with and it put a huge strain on the relationship. We eventually went our separate ways. I feel that my kids have also been affected by this as they lost out on growing up with their own father. I get my down days in life, but I get out and about to take my mind off it. I still have nightmares to this day. I will carry issues of my past with me for the rest of my life. "
Defendant's Personal Circumstances
14. The defendant is 70 years old. His first wife and the mother of X. and Y., died in 1992. The defendant subsequently remarried in 2010. At the time of his trial he was living with his wife in South East Ireland.
"As a victim of sexual abuse I never had a normal family life when it came to family. A family is supposed to have a father who protects his sons and daughters, not sexually abuse his daughters. I could never trust my father and this has had a great impact on my life when it comes to the opposite sex. I had no confidence in myself as a young girl and always felt like I was worthless, not important. It has been very disappointing to me my whole life as I will never know what it is like to have a Dad who loves and protects me. I grew up always fearing the opposite sex as I feared that I could not trust the opposite sex and to this day still have trust issues when it comes to men and relationships. I had dreams of finding a good husband and having a family of my own, but due to the fact that I was sexually abused I unfortunately have been unsuccessful in pursuing my dream of every being a mother and wife. !feel like this abuse has held me back.
I still have nightmares as a result of this abuse. I wake up in a cold sweat when these nightmares occur and it takes me a few days to come back to myself I had to leave Ireland to get away from my abuser as I couldn't face him anymore and needed to be somewhere where I would at least feel OK knowing I would not bump into him. This has also torn my family apart over the years. It has taken quite a toll on all of us. My life will never be normal as I will carry this unfortunate chapter with me forever. This is something I will never forget, I am physically and emotionally scarred for life as a result of sexual abuse. "
15. The defendant has a number of health problems. A report from his general practitioner states:-
Submissions of Counsel
16. Counsel for the Director of Public Prosecutions submitted that the appropriate sentence was in the high range having regard to the maximum sentence for rape. Counsel for the defendant, while acknowledging that a prison sentence was inevitable, submitted that the apology and remorse expressed by the defendant, although given late in the day, were factors that the Court should give the defendant some credit for. Counsel also submitted that the Court should equally factor into the sentence the fact that the defendant has no previous convictions and is an elderly man and someone with health problems. He submitted that as this is an old case, allowance should also be made for the fact that the most recent offence occurred over twenty-two years ago. Counsel for the defence relied upon the judgment of the Court of Criminal Appeal in D.P.P. v. J.M and cited the following to this Court:-
"Mr. B. has been in reasonably good health all his life. He had a mild heart attack approximately 30 years ago and made a good recovery from this episode. He developed Type 2 Diabetes Mellitus in April, 2003 and has been on medication for this condition since. He attends for regular review to this practice every six months and attends the diabetics' outpatients in Wexford General Hospital on a yearly basis under a consultant and endrochrinologist. His diabetes is well controlled and at present there is no cause for concern of his long term health.
Mr. B. suffered a mild left sided stroke in June, 2006. He made an excellent recovery from the stroke and there has been no recurrence of any symptoms or signs of stroke since then.
Mr. B. developed mild osteoarthritis in his right knee in 2008. Unfortunately it is now labelled as moderately severe osteoarthritis. He has difficulty walking and needs the help of a single crutch. He is unable to walk for greater than 200 or 300 metres at any time. He has been attending the orthopaedic department where his right knee has been injected with medication. At some stage in the future he will require surgery to his right knee, but it is not planned at present.
Mr. B. took an overdose of medication in January, 2010. This was not a dangerous episode and he has made a good recovery since then. It was an accumulation of psychological stress factors that caused him to take this overdose. We have no concerns for his mental health at present. "
17. Counsel for the defence then went on to quote a further part of the judgment in which the Court of Criminal Appeal stated:-
"The delay has been such that the custodial sentence was imposed at a stage when the accused could be said even by contemporary standards to have reached advanced old age, and when he was suffering from a physical and mental condition which unquestionably renders a custodial sentence, a punishment of unusual severity, and one which inevitably attracts considerations which would not be present in a person of comparable years who did not suffer from those special problems, let alone a younger person. "
18. In considering the appropriate sentence in this case, the Court is guided by the principle of proportionality and seeks in its judgment to reconcile that principle with the penal aim of rehabilitation. In addition, this Court has had regard to some decisions of the Court of Criminal Appeal in delay cases involving the rape of children. The Court is conscious that there may be a number of relevant cases which it has not noted. Given that s. 2 of the Criminal Justice Act 1993, allows the Director of Public Prosecutions to appeal a sentence on grounds of undue leniency, it is this Court's view that the traditional reluctance of prosecution counsel to engage meaningfully in the sentencing process is no longer warranted. The Court is entitled to be told clearly what the Director means when counsel says on her behalf that the sentence is in the high range relative to the maximum sentence, and to receive from prosecution counsel any relevant precedents. Furthermore, it is this Court's view that the very least counsel for the Director of Public Prosecutions should do at a sentencing hearing would be to direct the Court to any relevant sentencing judgments.
"The court is satisfied, however, that in refusing to suspend the sentence in whole or in part the trial judge gave insufficient weight to the unqualified remorse which the accused has shown for his conduct and the consequences it has had for the young girls in his charge, the irreparable damage done to the accused's standing in his community by the revelation of his conduct on his part, the consequences of his disgrace for his own children and most importantly of all, the undeniably fragile state of the accused's mental and physical health. "
19. Subject to this reservation the court has considered some of the jurisprudence in relation to child sexual abuse cases in an effort to be guided by precedent whilst also acknowledging the specific nature of abuse and its duration in this case, the fact that the complainants were sisters and that the abuse was perpetrated by their father. This Court also notes the period of time that has elapsed since the abuse ended; that being 22 years, and the present age and state of health of the offender. This case involved serious sexual abuse over a significant period of time.
20. In determining the appropriate sentence in relation to this particular offender in respect of offences for which he has been found guilty and the impact this offending has had upon both complainants, this Court notes that the range of sentences available to it extends from a non-custodial outcome to life imprisonment. It is for this Court to determine the appropriate sentence and in that respect it relies upon the submissions of counsel for the DPP and counsel for the defendant as well as the case law it was referred to and the case law this Court now refers to. This Court relies in particular upon the case of The People at the suit of the Director of Public Prosecutions v. P.H (Central Criminal Court, 15th October, 2007). The court has also considered the following judgments of the Court of Criminal Appeal:-
21. The court holds the following to be the aggravating factors:
1. Director of Public Prosecutions v. P. O'C., judgment delivered by Denham J. on 5th November, 2009;
2. The People at the suit of the Director of Public Prosecutions v. Michael Farrell, delivered by O'Donnell J. on 1st July, 2010;
3. The People at the suit of Director of Public Prosecutions v. W O'L. (Unreported, Court of Criminal Appeal, Fennelly J., 7th July, 2011).
22. The principal mitigating factor in this case is that A.B. has apologised for the offences which he committed against his two daughters and has indicated that he will not be appealing against conviction. He has also expressed remorse. Whilst this apology and expression of remorse came following his convictions by the jury it is, nonetheless, relevant and worthy of weight as a mitigating factor. Such acknowledgement of the offences committed, the apology and expression of remorse can go some way towards helping X. and Y. and other family members in coming to terms with the criminal behaviour of their father. At very least it puts an end now to any possibility of either X. or Y. being obliged to give evidence in the future and it also relieves them of the burden of having to wait a number of years for an appeal to be heard. The court also notes that the defendant has no previous convictions.
(i) the age of the victims at the time of the offending;
(ii) the serious breach of trust on A.B.'s part as their father and primary caregiver in his role as a house-husband;
(iii) the frequency of the offending
(iv) the location of the offending i.e. in the family home, and
(v) the duration of the offending spanning over thirteen years.
23. Taking all the above matters into consideration, this Court considers the appropriate sentence in respect of each of the rape cases is one of fifteen years imprisonment. Bearing in mind the principle of totality, the court directs that all sentences for the rape offences should run concurrently. In respect of the indecent assault counts the court imposes a two year sentence in respect of each count.
24. As the court has already said it considers the apology important. Bearing this in mind and also conscious of the courts obligation to encourage the defendant's rehabilitation, the court will suspend the final three years of the fifteen year sentence it now imposes on the rape counts in a manner similar to the terms of the suspension imposed by Charleton J. in the P.H case, namely the last three years of the sentence to be suspended on the defendant's undertaking to enter into a bond and keep the peace and be of good behaviour towards all the people of Ireland during that time and on condition that he should enter a course of counselling as a sex offender during his time in prison. This condition is imposed without prejudice to any right of appeal against sentence which the defendant may wish to exercise. The court also directs that the offender be placed on the Register of Sex Offenders. Finally, this Court directs that the defendant be subject to a one year post release supervision order pursuant to the Sex Offenders Act 2001.