THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
246/14
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Ex tempore Judgment of the Court delivered on the 15th day of May 2015, by
Mr. Justice Sheehan
Introduction
1. On the 11th July, 2014, the appellant was convicted on 59 counts of indecent or sexual assault which occurred between the 1st September, 1964 and the 26th June, 1985, in respect of eleven different complainants. The appellant was sentenced to eleven years imprisonment with the final five years suspended and appealed against both conviction and sentence. The sentence comprised a number of consecutive sentences in respect of each complainant leading to the overall sentence of eleven years imprisonment. Apart from three counts which carried a maximum sentence of ten years imprisonment, the maximum sentence for the remaining offences was one of two years imprisonment.
2. This Court delivered its judgment in respect of the appellant’s appeal against conviction on the 20th April 2014 and the background to these offences is set out in that judgment.
3. Counsel of behalf of the appellant submitted that the sentence imposed was excessive in light of the fact that the trial judge failed to give sufficient consideration to the mitigating factors. He also submitted that the sentencing judge ought to have resolved any ambiguities that arose as a result of the failure to particularise the counts on the indictment in favour of the appellant.
4. The respondent, while agreeing that the trial judge did not adopt the approach to sentencing recommended by the Supreme Court in The People at the Suit of the Director of Public Prosecutions v. M [1994] 3 I.R. 306 submitted nevertheless that the trial judge had arrived at a sentence which was proportionate having regard to the seriousness of the offences.
5. While the trial judge rightly took into account the harm caused to the victims, he failed to categorise the level of offending and failed to demonstrate by reference to any comparators how he arrived at a figure of eleven years imprisonment as being the appropriate starting point. He also appears to have mistakenly held that the absence of an expression of remorse was an aggravating factor. While remorse can sometimes be a mitigating factor, the obverse is not the case.
6. The Court accepts that any ambiguities in respect of the facts on foot of which the appellant is to be sentenced ought to be resolved in his favour.
7. The Court will proceed to sentence on the basis that each of the offences occurred in the presence of other pupils in the classroom and involved non-invasive touching. What makes the case a serious one is the extent of the offending, the fact that it occurred over a long period of time and that the appellant was a person in a position of trust. Given these factors, adopting the approach in The People at the Suit of the Director of Public Prosecutions v. M and bearing in mind the need to be guided by the principle of proportionality, this Court identifies a sentence of five years imprisonment as the appropriate starting point before mitigation.
8. The Court takes into account that the appellant has no previous convictions and has made a significant contribution to his local community since his retirement 25 years ago. These factors as well as his age (he is now 81 years old) ill-health and undoubted loss of reputation require to be recognised. These are not such exceptional factors as would warrant the Court in imposing a wholly suspended sentence. They are, however, of sufficient importance to allow the Court, in the special circumstances of this case, to suspend the final three years of each of the five year sentences.
9. The Court, therefore imposes a sentence of five years imprisonment on each of those counts where the maximum sentence of imprisonment is ten years. The Court suspends the final three years of each of those five year sentences on the appellant entering into a bond on the usual terms for a period of three years. The Court confirms the sentences of one year imprisonment imposed in respect of each of the remaining offences but directs that all sentences run concurrently.
