Director of Public Prosecutions -v- Lyons [2014] IECCA 27 (31 July 2014)

Judgment Title: Director of Public Prosecutions -v- Lyons

Neutral Citation: [2014] IECCA 27

Court of Criminal Appeal Record Number: 282CJA/12

Date of Delivery: 31/07/2014

Court: Court of Criminal Appeal

Composition of Court: Murray J., Moriarty J., Herbert J.

Judgment by: Murray J.

Status of Judgment: Unapproved

THE COURT OF CRIMINAL APPEAL

Murray, J. [282CJA/12]
Moriarty, J.
Herbert, J.

In the matter of Section 2 of the Criminal Justice Act, 1993

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/APPLICANT

AND
ANTHONY LYONS

ACCUSED/RESPONDENT

JUDGMENT of the Court delivered on the 31^st day of July, 2014 by Murray J.
(UNAPPROVED)
Conviction and Sentence
1. The respondent to this application, the accused Anthony Lyons, was convicted on 28^th June, 2012 after a trial by judge and jury, of the offence of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001. The offence occurred on the 3^rd October, 2010. The accused had pleaded not guilty at the trial. He did not contest the essence of the complainant’s account of the sexual assault, but relied on a defence of involuntary intoxication due to the taking of prescribed medication. This was not accepted by the jury.

2. In order to place the matter in context it may be noted that the Act of 1990, as amended, provides for two offences of sexual assault. Sexual assault contrary to s.2 of the Act, concerns the commission of an assault which is an indecent assault. Originally the Act of 1990 provided for a maximum term of imprisonment for this offence of 5 years, but this was amended to 10 years by the Act of 2001 with effect from 18^th September, 2001.

3. Section 3 provides for the offence of aggravated sexual assault which is defined as meaning a sexual assault that involves serious violence or the threat of serious violence, or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The acts committed by the respondent were not considered by the DPP to fall within the ambit of this s.3 offence, as the charge laid against the respondent was pursuant to s.2 of the 1990 Act, as amended.

4. A sentencing hearing took place in the Circuit Criminal Court following conviction on 28^th June, 2012 and subsequently on the 9^th, 12^th and 30^th July, 2012. In addition to having all the facts and circumstances concerning the assault before him, the trial judge had a victim impact statement from the complainant, a psychologist’s report tendered on behalf of the accused and a probation officer’s report. He also heard garda evidence and evidence called on behalf of the respondent. At the conclusion of that hearing, the accused was sentenced to 6 years imprisonment with 5Н years of the sentence suspended. He was also ordered to pay the sum of €75,000 compensation to the victim pursuant to s.6 of the Criminal Justice Act, 1993. The suspended sentence was subject to the following conditions, namely, that the sum of €75,000 be paid within one month; that he enter into a bond to keep the peace and to be of good behaviour for a period of 2 years following his release; and that he be supervised for a period of 12 months post-release.

The Application
5. The applicant, the Director of Public Prosecutions, brought an application before this Court pursuant to s.2 of the Criminal Justice Act, 1993 and requested that the Court quash the sentence imposed by the court of trial on the grounds that it was unduly lenient.

6. The application of the DPP pursuant to s.2 of the Act of 1993 was heard before this Court in November, 2013. However, the Court was then not in a position to finally determine the issues in that case, due to the sudden illness of one of the members of the Court. During that period of illness another member of the Court retired from the bench. Consequently, it was decided that the matter would be relisted for a complete re-hearing of the application of the DPP. This hearing took place on the 29^th day of May, 2014. The Court reserved judgment.

Background Facts and Circumstances of the Offence and Conviction
7. At approximately 2.15 a.m. on the 3^rd October, 2010 the complainant was walking along Griffith Avenue, Dublin. Earlier the previous evening she had attended a family event in a nearby hotel. Her evening out concluded in a nearby licensed premises which she left at about 2 a.m. It was about a 20 minute walk to her home from there. It was during the course of that walk home that the sexual assault occurred. As she was walking along one of the darker stretches on Griffith Avenue the complainant suddenly became aware of a man on her left. This startled her because she did not realise there was anyone behind her. She felt an arm go around her right side and the man said something like “Are you getting home safely”. She tried to shove him away but she was tackled to the ground falling face down. He was on her back and she was screaming. He kept trying to silence her. He put his hand around her mouth. She had her phone in her hand and was trying to use it. He tried to grab it. He managed to take the cover off the phone which may have led him to believe he had got the phone because he then stopped trying to get hold of it. She was wearing a heavy winter coat with a large hood, which was over her head. She still had her phone in her hand under the hood and was able to telephone the gardai. At this stage she could feel his hands down her front. He touched her breasts, outside her clothes with both hands. He groped her buttocks with his hand inside her underwear. He then struggled to get her underwear down and managed to pull it down to some extent. He put a hand between her legs and felt outside of her vaginal area and inserted fingers in her vagina.

8. The assault went on for three or four minutes. The complainant managed to contact the gardai on the phone although in her panicking state she gave them an inexact location for the assault. Then she felt his weight lift off her for some reason. As soon as she realised this she ran as fast as she could with her underwear still partly down. A passing taxi stopped. The taxi man and another person gave her assistance and called the gardai who arrived shortly afterwards. She got into the garda squad car. She was driven around the immediate area and shortly afterwards she was able to identify to the gardai the respondent, who was walking along a footpath, as the person who had assaulted her.

9. It would appear the reason why the respondent terminated his assault on the complainant at that point was probably due to the fortuitous intervention of a passer-by. This public spirited man had also been walking along Griffith Avenue when he heard the complainant screaming and saw a man pulling at her. He began to run towards the complainant shouting at the man. As he ran towards the scene of the assault the respondent stopped his assault and ran off in the direction of Drumcondra Road. He also went with the gardai in a garda car and subsequently identified the respondent, not far from the scene, as her attacker.

10. The respondent was arrested by the gardai following this identification. When interviewed in the garda station, notwithstanding that he knew that he had been identified by the complainant and by the passer-by as the assailant, he denied knowing anything about the assault. He was eventually released and returned, by appointment, to the garda station on 11^th November, 2012. He gave a written statement, prepared with the assistance of his solicitor, to the gardai admitting that he had committed the assault.

11. He stated that he felt terrible about having done it and that he was sorry that he had not told the truth the first time out. The respondent then was interviewed by the gardai on the basis of the written statement which he had furnished to them. At that point he did not accept the account of the complainant, of which he had been informed, in two particular respects. One was that he insisted that she had stumbled rather than being tackled to the ground and the other was that he did not any stage insert his fingers in her vagina. He qualified this by saying that he certainly had no recollection of doing so and was not conscious of doing so. At the trial these aspects of her account were not disputed.

12. At the trial itself the account of the complainant as to what occurred during the course of her assault was not significantly contested. This approach was conveyed to the prosecution (and the complainant) in advance of the hearing. He had issued a statutory notice which made it unnecessary for the prosecution to call the complainant personally to prove her account of the assault. She decided, as she was perfectly entitled to do, that she would give evidence personally at the trial. The respondent, however, pleaded not guilty on the basis of a defence of involuntary intoxication. In his statement, which was tendered at the trial, he said that he commenced a course of prescription of anti-cholesterol drugs the day before the incident. He claimed that he had no memory of the actual assault. At the trial expert evidence was called on his behalf to the effect that the drug in question could have had the effect of causing him to have entered a mental state whereby he either did not know what he was doing and/or had no control over his actions. The prosecution called medical evidence to the contrary. As previously indicated the defence was not accepted by the jury and the respondent was found guilty.

The Complainant
13. A victim impact statement was submitted on behalf of the complainant. As can be imagined, the physical injuries arising from the particular assault, described as bruising, scratches, muscle aches and pains, were far outweighed by the emotional and psychological impact which the trauma of the assault had on her. This was severe and extensive affecting her capacity to sleep, to work and to function in every aspect of her everyday life. While respecting her privacy concerning the contents of the statement, it can be said that she was emotionally devastated by the event which gave rise to fear, vulnerability and a great deal of stress which interfered with her trust in relationships with other people. Members of her family were also traumatised by the event and the impact which it had on her. When she returned to work 3 weeks after the accident her capacity to function at work was affected by the impact all of this had on her. She required professional support and the trauma had a horrendous and devastating affect on her life. At the time of the sentencing most of these affects were continuing.

Sentencing in the Circuit Court
14. At the conclusion of the second sentencing hearing on the 28^th June, 2012, which must be viewed in the light and context of the earlier sentencing hearings, in sentencing the respondent the trial judge pointed to the serious nature of the offence and stated that the manner in which the offence was committed was at the upper end of the scale for sexual assaults. In this context he referred in particular to the seriously frightening nature of the violence used against the complainant. He pointed to the manner of the assault, its location at night in an unlit, quite area of the public street, all of which contributed to the trauma and fear visited upon the complainant. The assault involved an invasion of her person by means of digital penetration of her vagina.

15. At the hearings concerning sentence evidence had been given that the accused at the time of the commission of the offence was 49 years of age, married with four children and had previously led an unblemished life. He had no previous convictions and had never come to the attention of the gardai. Oral evidence was given by a number of witnesses concerning his good character. There was evidence that he was deeply shocked and remorseful at what he had done and deeply regretted the impact which he had on the victim. One witness described him as shell shocked, remorseful and while alive he appeared to be only a shell of his former self. However, when first arrested he denied everything, even though he knew he had been identified by the witness who was the passerby. Defence counsel pointed out that he had expressed full remorse for the offence against the victim when he went to the Garda station with his solicitor in October, 2010, and had taken steps so as to render it unnecessary, if she did not wish to do so, for the complainant to give evidence at the trial. This, he said, was consistent with his remorse in addition to the fact that during the course of the trial a matter had arisen which would have been a valid basis for the defence seeking a discharge of the jury, but that was not taken advantage of. The account given by the complainant at the trial, he said, was not contested, although he did plead not guilty on the basis of involuntary intoxication. In addition, he was placed on the sex offenders register, as required by statute, which placed burdensome obligations on him concerning notifying gardai of his residence and his movements.

16. Another factor which the trial judge took into account was the reports from a consultant psychiatrist and a probation officer’s report which concluded that the respondent is at a low risk of re-offending.

17. Finally, the trial judge took into account the fact that he was ordering the respondent to pay to the complainant the sum of €75,000 pursuant to the provisions of s.6 of the Criminal Justice Act, 1993.

18. In coming to his decision on sentence the trial judge took into account the totality of mitigating factors placed before him but also the gravity of the offence. The case made by the DPP is that he gave undue weight to the mitigating factors. Counsel for the respondent, on the other hand, argued extensively that all the matters which the trial judge took into account as mitigating factors were relevant factors, that he had carefully balanced those factors against the gravity of the offence and imposed a prison sentence, with ancillary orders, that was within the ambit of his discretion and did not contain any error of principle. Counsel for the respondent accepted that the payment of compensation was only of marginal significance. Evidence of a great deal of news media reportage on the case was submitted on behalf of the respondent for a number of reasons. These included statements concerning the so-called “wealth” of the respondent and its suggested impact on the sentencing process in this case.

19. There was at least one press report which stated that the trial judge had given the respondents a choice between paying €75,000 by way of compensation order or going to prison. That is not a true statement. The trial judge exercised his discretion to make that order pursuant to an Act of the Oireachtas, in addition to imposing a custodial sentence.

20. There was no evidence given at the trial concerning the actual wealth of the respondent. Ordinary background information of an accused was given, namely, that he had trained in aviation servicing in Bolton Street and subsequently went on to establish a successful business in the aviation industry. It was also stated that he was a person of means, but limited to that. His means did not play any significant role in the sentence imposed, and then only to the extent required by s.6 of the Criminal Justice Act, 1993. It is important, therefore, to place the “compensation order” of €75,000 made by the trial judge in context.

21. In order to place the making of the compensation order in context it is relevant to note that it was the Oireachtas which decided that a sentencing judge could consider making an order for compensation against a convicted person having regard to their means. Section 6 of the Criminal Justice Act, 1993 introduced, then a new provision, providing that on conviction “of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make … an order … requiring him to pay compensation in respect of any personal injury or loss resulting from that offence … to any person … who has suffered such injury or loss.”

Sub-section 5 provides that in determining whether to make a compensation order against a person and also in determining the amount of compensation the court should have regard “to his means” (emphasis added).

22. Since that is the law this is one of the possibilities to which a trial judge must have regard to in appropriate cases. Leaving aside minor offences, such as those dealt with in the District Court, where different considerations may arise, it does not appear to be used extensively where persons are convicted on indictment. This may be because the vast majority of those who are charged with serious criminal offences are on legal aid and of little or no means, so an order under the section might serve no useful purpose. Whatever be the case, the Oireachtas clearly envisaged that a “compensation order”, as they are described in the section, should be made in appropriate cases, having regard to a person’s means, “instead of or in addition to” any other punishment. Clearly the Oireachtas intended that compensation orders should be available to compensate victims where that could be done to some degree in the light of the means of a convicted person. Whatever the intent of the Oireachtas, the trial judge retains his or her discretion as to the just and appropriate punishment to be imposed in a particular case. The application of the section should never mean that there is one law for the rich and another law for the poor, in the sense that a rich offender may buy himself or herself out of prison, or get some similar advantage. Of course, the risk of any such misconception arising could be completely avoided by never applying the law provided for in that section, and never providing for any compensation orders to victims, contrary to what the section envisages. Such a blanket policy would be incompatible with the duty of the courts to give effect to a law passed by the Oireachtas. Nevertheless, any application of the sentence necessarily involves a sentencing judge in a careful and sensitive assessment of the facts in the particular case. It would be difficult to lay down any exhaustive rule as to how the section should be exercised, because the facts, both as regards the offence and the offender, will almost invariably be materially different in every case. The question of compensation will be referred to further in the judgment when consideration is given to the criteria which should be applied when a sentence is imposed on an accused, who is also the subject of a compensation order. This is with a view to avoiding the risk that the payment of a large amount could improperly affect the punishment to be imposed by the Court.

23. For present purpose it is sufficient to draw attention to the fact that the trial judge expressly mentioned during the course of the different hearings on sentence his concern that when considering what, if any, statutory compensation order to make it should not be understood as giving a special benefit to the respondent because he was a person of means. On the wording of the section the making of a compensation order is not in any way dependent on whether or not an application for such an order is made to the sentencing judge, and no application was made in this case. Both the DPP and the defence expressly told the Court that they had no objection to the making of an order under s.6 in this case.

24. Although the judge in the course of the sentencing hearings, as the transcript discloses, expressed some reservations about the making of a compensation order in this case, he decided, clearly having regard to the purpose of the statute as enacted and the fact that the convicted person was a person of some means, that the complainant should have the benefit of the Act because of the personal injury suffered by her in addition to any other punishment which he would impose. One of the observations he made in the course of sentencing, to explain his decision to apply s.6 of the Act, was:

“The sequelae of what has happened to the injured party will continue beyond any sentence that can be imposed by me, according to the parameters of sentencing that I must adhere to. I am not saying that in a pejorative way and I don’t want to be taken that way, but I have a reason for saying it because I want mark the seriousness of this offence by the defendant giving something back, not just to society against whom he has offended, but giving some back directly to the lady that he has offended against and has offended against in mind and in body.”

25. He then went on to have regard to the provisions of s.6 and made a compensation order in favour of the complainant.

26. When completing the sentencing exercise, as soon as he had made that order, he indicated that he was taking into account a range of mitigating factors, including that matter. It is not in issue in this application whether he should or should not have exercised his discretion to apply s.6 of the Act of 1993, and if so to what extent in this case.

27. Indeed, the DPP agreed at the Circuit Court that the s.6 could be applied and that it was one factor which could be taken into account as a mitigating factor. What this Court has had to consider is whether the trial judge went wrong in giving undue weight to the totality of the mitigating factors as against the seriousness of the offence, the attendant aggravating factors and its impact on the complainant.

28. As regards the weight to be attached to compensation in this case, the Court will refer to it when dealing with the sentence which it has to impose in the light of its decision to quash the trial sentence as being unduly lenient.

29. The trial judge considered that the gravity of the offence was in the upper range and warranted a sentence of 6 years imprisonment before mitigating circumstances were taken into account. He took into account the range of mitigating circumstances and the evidence which he had heard, and concluded that a proportionate sentence in the circumstances was one which involved suspending 5Н years of the sentence on conditions. In addition, he ordered the payment of the sum of €75,000. The trial judge also ordered that on his release the respondent enter into a bond to keep the peace and be of good behaviour for 2 years, and that he be supervised for a period of 12 months post-release. In addition, he noted that he would have to be placed on the sex offenders register.

Decision on the Application of the DPP
30. The Director of Public Prosecutions has applied to this Court, pursuant to s.2(1) of the Criminal Justice Act, 1993, to review the sentence imposed by the Circuit Court on the grounds that the sentence imposed on indictment was unduly lenient.

31. Pursuant to s.2(3), the Court may either refuse the application or quash the sentence. If the Court decides to quash the sentence it may in place of the sentence imposed at the court of trial impose “such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned,”. Section 2 of the Act of 1990 originally provided for a maximum term of imprisonment not exceeding 5 years for such an offence, but in 2001 the Act was amended by s.37 of the Sex Offenders Act to provide for a maximum sentence of 10 years.

32. There was no serious dispute between the applicant and the respondent concerning the trial judge’s conclusion that the degree of gravity of the offence in this case could properly be reflected in a sentence of 6 years imprisonment, in the upper echelon of the scale, before mitigating factors.

33. Offences of sexual assault contrary to s.2 of the Act may range fairly widely in their gravity. It is always a serious offence. It may involve sexual assault through touching a person outside their clothes, or it may be attendant with more aggravating circumstances such as the use of violence, touching or some penetration of intimate parts. Even then at whatever end of the spectrum an offence may be considered to fall there will be significant elements which will vary in one case from another, which may include the particular impact on the victim or some special circumstances relating to the accused.

34. The onus is on the Director of Public Prosecutions to establish that the sentence imposed by the trial court was, in the terms of the section, unduly lenient. In The People v. McCormack [2000] 4 I.R. 356, at 359, this Court held:

“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle.”

35. Sentencing is a complex matter and the law requires a judge, acting independently, to take into account a whole range of factors in determining what is a just and proportionate sentence in any given case, having regard to the particular circumstances of the case, the gravity of the offence, including the impact on any victim, deterrents for the protection of society, punishment of the accused and the accused’s particular circumstances. Rehabilitation with a view to facilitating the release of the accused to become a law abiding member of society may also be a factor. There are many hundreds of cases which come on for trial each year, and each case has to be dealt with on its own particular facts and circumstances. There is an appeals procedure provided if either the DPP or the accused feels that the trial judge got the sentence wrong. Only a small percentage of cases are appealed against, and then most cases are appealed on the grounds of severity of sentence. Proportionality in sentencing has long been part of our law as it is by reference to E.U. law and the case law of the Court of Human Rights.

36. The evidence concerning the nature of the sexual assault on the complainant in this case has already been outlined above. The Court comments further on the inherently serious nature, coupled with aggravating factors which occurred in this case, when it comes to the sentence which must now be imposed on the respondent. Suffice it to say for present purposes that the wanton and violent attack on the complainant in this case in her local neighbourhood walking home at night on the public road, and which included contact and digital penetration of her private parts, is an offence which, in principle, requires a significant custodial sentence. The length of sentence will be tempered by any mitigating circumstances, some of which may be very marginal and some which may be of greater significance. Where an offence contrary to s.2 of the Act is accompanied by substantial aggravating factors, as in this case, it should, in principle, lead to a significant custodial sentence. Any other approach could risk giving undue weight to mitigating factors as against the gravity of the offence itself.

37. In the circumstances of this case the Court is satisfied that it is one which manifestly warranted a more significant custodial sentence than the one of 6 months imposed by the trial judge, notwithstanding the mitigating factors which he was entitled to take into account.

38. Accordingly, in this case the Court is satisfied that having regard to the gravity of the offence, as identified by the trial judge himself, that he erred in principle by giving undue weight to the range of mitigating factors and imposed a sentence that was unduly lenient. Accordingly, the Court will accede to the DPP’s application and quash the sentence imposed in the Circuit Court in this case.

39. As a consequence, the Court is required to impose the sentence which it considers appropriate.

The Sentence
40. It will be a long time before the complainant in this case will feel that she can safely walk to her home along the public street at night, if ever. The traumatic effects of the sexual assault are referred to in her Victim Impact Statement, as described above. That is not a fear which simply affects the complainant, although it does and will affect her in a special way because of the offence committed against her. It is a fear which this kind of offence instils in every woman who walks in a public area which is quiet and without others around, and not necessarily when it is a dark evening or night. It is these kind of offences, some of them less serious than the present one and obviously some much more serious, that inculcate in women a sense of apprehension, or even fear, when walking quiet or lonely places on their own. That is one of the reasons why in such cases a sentence, or a totality of punishment, involving a significant custodial element, is important for the purpose of deterrent. It is not only for the purpose of deterrent to the convicted person in the particular case. Personal deterrence is not a significant factor in this case because the evidence is that the respondent is unlikely to offend again. A sentence, although proportionate to the gravity of the particular circumstances of the case, should contain also an element of deterrent to others who may be tempted to commit similar crimes. It would send out the wrong message to society if the custodial element and the totality of punishment did not reflect that.

41. In this particular case the aggravating factors were identified by the trial judge. The complainant was suddenly and traumatically assaulted as she walked towards her home after a night out at about 2 a.m. in the morning. The respondent had chosen a quiet and somewhat darkened area of the road to make his attack. This was then followed by an immediate sexual attack. She was on the ground and he was on top of her. She was fighting him off. She caused a cut on his face, which he had when he was arrested later by the gardai. She was trying to use her phone and he was trying to stop her. He thought he had thwarted that attempt and proceeded with his sexual assault. He felt her breasts on the outside. He put his hands down inside her underclothing and felt her buttocks. He tried to pull her underclothes down and partially succeeded. He touched her vaginal area and inserted his fingers. At the same time she was crying out for help. A passerby saw what was happening from some distance away and shouted stop. The respondent got up and ran away. In his statement to the gardai the respondent claimed that he ran away, not because of this, but because when she shouted something to the effect help I am being raped he was shocked into realising what he was doing and decided to stop and abandon the scene. It is difficult to conclude that the fortuitous arrival of the passer-by at the scene did not play a decisive part in the decision of the respondent to desist at that stage.

42. Inevitably, as referred to earlier in this judgment, the sexual assault had a traumatic affect on the complainant, and on her whole family. Her integrity as a person, physical and emotional, was violated. Although it only requires a relatively brief resume to state all the essential elements, that does not in any sense take away from its gravity and serious impact on the victim.

43. The approach which a court is required by law to adopt when imposing sentence was stated by this Court in People (Attorney General) v. O’Driscoll [1972] 1 Frewen 351 per Walsh J. at 359, and subsequently approved from successive decisions of this Court and the Supreme Court, including by the Supreme Court in People (DPP) v. M [1994] 2 ILRM 541 where Denham J. at 547/8:

“It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal."

What this Offence is Not
44. An accurate evaluation of the circumstances of the case and the nature of the offence are, self-evidently, of prime importance. During the course of the hearing there was placed before the court a swathe of publicity given to the trial and sentencing in the Circuit Criminal Court, and its aftermath. The Court is not concerned, in this context, with the general tone and tenor of some of that coverage, or the opprobrium visited on the respondent, or exaggerations or mere inaccuracies in the reportage.

45. In some sections of the news media the nature of the offence was grossly misrepresented and even distorted, which could only have misled the public who have a right to know the nature and circumstances of the offence for which a sentence is being imposed. It is, therefore, necessary to state what, contrary to some news media reports, this offence is not, without in any way taking away from its own serious and grave nature.

46. He was not charged with an offence of “aggravated sexual assault” as provided for in s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. The charge in this case is one of indecent assault, known as sexual assault, as provided for in s.2 of that Act. The maximum sentence is 10 years. It is a serious offence notwithstanding that it is a sexual assault offence which carries the shortest maximum sentence for that kind of offence.

47. Neither was he charged with the offence of attempted rape, contrary to what was conveyed in a range of media reports.

48. Neither is the Court sentencing somebody who must be treated or characterised as a “pervert” in the sense of a person who has committed a series of sex offences, or in respect of whom it is shown has a disposition to commit such offences. On the contrary, the unchallenged evidence before the Circuit Criminal Court is that the respondent is a convicted person with an unblemished previous life and a low level risk of ever offending again.

49. Neither is the Court sentencing somebody for an offence which can be bracketed with, or put on the same level, as serial child sex abuse, rape, manslaughter, or even murder. There was ample evidence of the facts and circumstances of this case being bracketed with or compared to such offences in certain sections of the news media. If the Court was sentencing any accused on the basis of offending of such gravity it would be dealing with a wholly different case and imposing a wholly different sentence.

50. The law requires that each case be dealt with according to the particularity and circumstances of the offence, including the impact on victims and the circumstances relating to the particular accused. This is what established sentencing principles require as a matter of law. This is what this Court must do.

Mitigating Factors
51. Counsel for the respondent relied on a range of mitigating factors which he submitted the Court must take into account in coming to its own decision on the sentence to be imposed, should that arise. These mitigating factors include those that were in existence at the trial, and, in the event of this Court imposing a sentence, the decision on the new sentence include those matters which have occurred since the trial up to the date of the hearing of this application. There is a series of mitigation factors, all of which are relevant, and being relevant must be referred to and taken into account by this Court as a matter of law. Some factors may be of minimal or marginal importance and others more significantly so. However, extensive the range of factors to be taken into account, in the end it is the gravity of the offence, on the one hand, and the totality of those factors, which have to be balanced.

52. One of the important factors to be taken into account in this case, as in any case where it arises, is that the respondent was, prior to the committal of this offence, a person of unblemished record with no previous convictions, never having come to the attention of the gardai. His previous good character was not put in issue and the garda evidence was consistent with that. There was oral evidence given at the sentencing hearings which included evidence that he had been a good father, husband and devoted to his family. There was evidence that he was very actively involved in charitable work for the benefit of a children’s hospital over the years. He had received training in aviation servicing in the College of Technology, Bolton Street, and then pursued a hard working career which included setting up a successful business. Oral evidence from colleagues and friends said he was a normal sociable person and never displayed any qualities which remotely indicated that he could act in the manner which he did on the night of the sexual assault. One witness who knew the respondent socially and in a business context stated that she never observed anything in his conduct or relationships with women that hinted at any improper attitude towards them. On the contrary, she said, he was respectful towards women as he was with people generally, and he was a person that she always felt perfectly safe with. There was no evidence which sought to question any of the foregoing.

53. One of the imponderables of this case is why a person who has led a perfectly law abiding life should, at the age of 49 years, commit an offence, apparently without warning, of this nature. As previously noted, at the trial, the respondent relied on a defence of “involuntary intoxication” alleged to have arisen from the combined effects of medication which he was taking at the time. This was rejected by the jury as a defence and explanation for his actions. At the hearing of this application a further possible explanation of “voluntary intoxication” was put forward by way of mitigation. Counsel stated that this mitigating factor could not have been raised at the trial because it was not a defence to claim, as he put it, “voluntary intoxication” as a reason for his actions, rather than “involuntary intoxication”. The voluntary intoxication is said to have arisen from a combination of the alcohol which the respondent had consumed when socialising on the evening of the crime with a medication known as “Actifed”, a cough and upper respiratory tract congestion preparation for adults and children. Medical evidence was presented at the sentencing hearing to the effect that this might have contributed to his behaviour on the night of the offence. This possibility is addressed in a report from a Dr. O’Connor which it was submitted also received some support in the evidence of Dr. Van Den Burg at the trial. Although Dr. O’Connor’s report was not challenged at the sentencing hearing, the Court itself has to decide the weight to be attached to it in the context or the circumstances of the case as a whole. The conclusion of Dr. O’Connor is somewhat declaratory. After a general reference, without elaboration or explanation, to confusional states, psychotic episodes or unusual behaviours being documented in medical literature arising from a combination of alcohol and one element, pseudoephedrine, in Actifed, no further analysis or explanation of what is referred to as ‘documented in medical literature’ is provided, least of all with a view to establishing some causal connection in this case. The Court is not convinced that it has been established on that evidence that “voluntary intoxication”, as described, is a probable or even reasonably possible explanation for his conduct in committing the assault. It certainly appears to be an event that was totally out of character with the known history in every respect, of the respondent, but nonetheless one, of course, for which he bears criminal responsibility.

54. Other relevant factors identified, by way of mitigation, by the trial judge included the fact that the respondent had exhibited remorse in a statement which had been prepared with the assistance of his lawyers, and submitted to An Garda Siochana about one month following the incident.

55. There was also the fact that the reports tendered to the sentencing court, including a report form the Probation Service stated there was only a very small risk that he would re-offend. That is a factor which the Court must also take into account.

Compensation
56. As previously noted, in the Circuit Court the respondent was ordered to pay €75,000 compensation to the complainant, pursuant to s.6 of the Criminal Justice Act, 1993. It is quite evident from the transcript of the several hearings on sentence, that the sentence imposed did not involve some kind of trade off between the order for payment of compensation for the benefit of a victim in accordance with the Act of the Oireachtas, and the sentence to be imposed. The amount of compensation, the Oireachtas decided, should be related to the means of the convicted person. So it was intended that a person of larger means should pay, in such a case, greater compensation to a victim than a person of lesser means.

57. No importance was attached by the trial judge to the particular amount in that case. The fact of compensation was just one of a range of mitigating factors which the Circuit Court took into account, having heard submissions from both sides. The position of the DPP in the Circuit Court, as the Court was reminded in her written submissions, was that the payment of compensation “is a factor which the Court is entitled to take into account” when deciding on sentence. That is what the Circuit Court did, and no more.

58. In this application counsel for the DPP and counsel for the respondent have again submitted that the payment of compensation is a relevant, and both agree that it is only a marginal factor.

59. In the view of the Court, the making of an order for compensation in serious criminal cases at the time of sentencing by an accused is unavoidably a delicate and difficult issue. There can never be any question of it being applied in a way that suggests there is one law for the rich and one law for the poor. Nonetheless, the Oireachtas has ordained that a sentencing court must have the option of compensating a victim by means of a “compensation order” by reference to the accused’s means. This statutory coupling of a “compensation order” with the sentencing in serious indictable cases, could at least be said to be unsatisfactory (and warrant review by the legislature) as it risks giving rise to the misconception that in such serious cases an accused could escape the appropriate sentence simply by the payment of compensation. This did not occur in the Circuit Court (although it has been represented as such). The error in principle of the trial judge was the undue weight he gave to the totality of the mitigating factors.

60. The Court is now required to approach the question of compensation in the particular circumstances of this case that have arisen since the trial. Subsequent to the hearing of this application the registrar of the Court received a letter from the DPP seeking to bring to the attention of the Court a matter which she considered relevant for the Court’s consideration. That matter was stated in the letter to be that compensation has been paid by the respondent in settlement of a civil claim of the complainant. The total compensation paid was €199,500 “before deduction of legal fees and medical fees including VAT”. It further stated that it was agreed by the DPP and counsel for the respondent that the most appropriate way to put this information before the Court was by way of letter.

61. Such a matter having been placed before the Court by the DPP by way of letter, the Court held a brief sitting to receive that letter in open court, because the Constitution requires that justice be administered in public. If such a matter is being brought before the Court as a relevant consideration it must be done in that way.

62. It was stated that the amount paid was paid in settlement of a civil claim, and it is understood that this is the totality of the compensation paid to the complainant.

63. It is almost axiomatic that a person who, through criminal wrongdoing, inflicts injury or loss on another person, that he or she is separately and distinctly liable to pay full compensation in civil proceedings. It represents a civil liability independent of the criminal liability of the convicted person. While there are no statistics or objective information as to the degree to which civil claims are brought following or arising from criminal convictions, it would appear to be a relatively uncommon occurrence, largely because, it would seem, the range of persons which come before the criminal courts are so often persons of little or no means, thus rendering the bringing of civil proceedings futile. It does, however, occur. In this case the resolution of the civil proceedings has occurred by agreement before the full scope of the criminal proceedings had been completed. More often, when it does occur, it will occur after conviction and sentence. The fact that a person is exposed, on conviction, to a potential civil claim, is not a factor which is taken into account in sentencing. It is a separate civil liability. It is also self-evident that where a person who has been convicted has to pay compensation as a result of a successful civil claim subsequent to conviction, the compensation award can have no bearing on the original sentence imposed. In principle, therefore, the Court does not see any reason why the payment of compensation and settlement of a civil action prior to the completion of the criminal proceedings should automatically be a factor, even a marginal factor, in mitigation.

64. Counsel for the DPP argued that compensation, and in particular compensation pursuant to s.6 of the Act of 1993, could be a mitigating factor, although marginal, in certain circumstances. (Of course, a compensation order under the Act is, by virtue of s.2, relate to the amount which a victim could recover by way of civil action. It may not exceed such an amount).

65. In this context, counsel for the DPP relied on the case of The People (DPP) v. McCabe [2005] IECCA 90. That was a case in which the convicted person had to sell his entire herd of cattle in order to pay compensation awarded in that case at the time of sentencing. It was submitted by the DPP that compensation in the particular circumstances of the McCabe case represented a special hardship on the accused and was something which could be taken into account as a mitigating factor as part of the totality of hardship or consequence of a conviction on the accused in that case.

66. The Court considers that the application of the criteria of special hardship, according to the circumstances of an accused, irrespective of the amount of compensation, avoids any special treatment for an accused who happens to be particularly well off and can therefore be made pay a high level of compensation by reference to his means as required by s.6 of the Act of 1993.

67. Turning to the facts and circumstances of this case, there was no evidence that the settlement of the civil claim by the respondent imposed on him a special hardship. Other than a reference to the respondent being a successful businessman of some means, there was no investigation or focus on his wealth, as such, whatever it may be, in the Circuit Court. While the payment of such a large sum by way of compensation must be a burden of some degree for anybody, nonetheless it represents no more than the respondent’s civil liability in this case (as agreed between the parties). That is a distinct and separate civil matter to the criminal matters with which this Court has to deal. Certainly, in the absence of any evidence to show that it was specially burdensome or onerous, the Court does not consider that it should affect the sentence which should be imposed in this case. Accordingly, it is not treated as a mitigating factor here.

68. Finally, the Court would observe that compensation orders provided for in s.6 of the Act of 1993 apply where a person has been convicted of a criminal offence, whether for minor offences in the District Court, or for more serious offences on indictment. The application of s.6 for minor offences before the District Court gives rise, as pointed out earlier in this judgment, to different considerations. The Court here is referring to the application of s.6 to serious indictable offences. Section 6 provides for the making of compensation orders “instead of or in addition” to any other punishment. In appropriate circumstances, as for a minor offence before the District Court, a compensation order may well, as the Oireachtas envisaged, be something which could be made instead of some other order being made by that court. However, where serious indictable offences are concerned it would seem that, in principle, if a compensation order is being made it should be made only in addition to the appropriate sentence, including imprisonment, that meets the gravity of the case. Of course, the making of a compensation order may arise also in a case where a court, for reasons wholly independent of a compensation order, considers that a non-custodial sentence, such as a suspended sentence, should apply. As stated, it may nonetheless be a marginal factor in mitigation, where the payment creates a special burden or hardship on the accused. That is not this case.

Totality of Hardship
69. Counsel on behalf of the respondent submitted that in determining the total sentence to be imposed on the respondent by this court account should be taken of a range of matters which have flowed from his conviction, and which are punitive and extremely burdensome in nature. It was submitted that the totality of hardship endured by an accused must be taken into account in accordance with established sentencing principles. These factors, counsel submitted, included:

The period of time already served by the respondent in prison;

His ongoing requirements under the sex offenders register. He must remain registered for 10 years and be subject to all the consequential restrictions or limitations concerning movement, residence and travel;

He has suffered permanent damage to his business and livelihood, having been forced by the circumstances to withdraw from his previous business in this country;

Total destruction of his reputation and standing in the community;

Being forced to go and live abroad because of the sustained and exceptional form of sensational attack on his reputation in certain quarters of the media;

The grave and detrimental impact that all of the above has caused to his family life, including separation from his family;

(vii) The traumatic and extremely stressful impact on his wife, children and elderly parents of such extraneous matters, as harassment near his home and in public places, as well as sustained and exaggerated characterisations in some parts of the news media of the nature and gravity of the offence of which he had been convicted.

It was submitted, inter alia, on behalf of the respondent that the impact on the respondent of these extreme hardships and burdens should be considered as serving not only as a deterrent to him against future conduct, but also as a deterrent to others. In addition, it was submitted, by reference to extensive documentary evidence, that all of these matters had been exacerbated by extreme and persistent exaggerations in the news media of the gravity and nature of the offence which he had committed. He had, it was pointed out, been put in headlines with, and compared to, persons convicted of rape and murder, serial paedophiles and a person who was convicted of 24 counts of indecent and sexual assault and gross indecency against children. Although the offence which he committed, that of sexual assault, was a very serious offence, it was submitted that this kind of sensational publicity, which was sustained and extensive, had a terrible impact on his children, on his wife and on his parents. It was accepted that the respondent bore responsibility for bringing about this situation by committing the offence but the sustained vilification of a person who had committed this offence was exceptional in this case as was its impact.

70. As part of the totality of hardship, counsel for the respondent referred to statements and evidence from members of his family and in particular his young children, and the hardship which the family had to endure. This it was submitted included journalists harassing their home, knocking on the door of all hours of the night, questioning relatives and neighbours coming in and out of the home, photographing through windows, and so on. Some of the children were emailed by journalists and the family, including children, were photographed on holidays. At times it became impossible for the mother of the children to collect her 10 year old son from primary school because of harassment. This included, among a variety of other matters, a person who lived in the area stalking the mother of the children, appearing at the home and waking the family up by blowing a horn and making signs at the house. One child said she was followed on her bus to school, and on one occasion was so frightened by this person that she had to get off the bus crying and shaking and go home. Counsel also drew attention to the fact that the continuous harassment and news media attention made it impossible for the respondent to live at home or to live in this country, and he had to move abroad. The family members suffered distress by being deprived of the natural company and contact with their father in the aftermath of the conviction. One of the younger children explained that as a result of the news media attention people would relentlessly jibe or throw insults at members of the family. Messages were sent to one daughter’s facebook telling her that she should commit suicide.

71. Those, in broad terms, were the submissions of the respondent in relation to certain ancillary matters which could be said to fall under the totality of hardship.

72. Firstly, it must be said that prime responsibility for negative consequences and opprobrium which arose lies clearly with the respondent who committed the offence. Consequences for the victim were also traumatic and tragic, and sight cannot be lost of that, and its impact on her family. The impact and consequences of a conviction for indecent assault on what was hitherto a normal and happy family life is in its own way also tragic, and also brought about by the commission of the offence by the respondent. The difficulty which any court has in those circumstances would be to differentiate, if it could, between the likely and unavoidable consequences of being convicted of sexual assault, including special attention or publicity being given to one case over others. Moreover, the graver the offence the graver is the likelihood of a significant impact of this kind on those who are close to the offender, and in particular his family. That cannot be a ground for avoiding a prison sentence. While the Court can take into account the totality of hardship which has resulted for a convicted person, particularly having regard to punishments imposed by the court, it cannot give too much weight to burdens or hardships which are an inevitable or possible consequence of the offender’s own wrongdoing. On the other hand, there are elements of what occurred in the present case which may be categorised as excessive, and some of them appear to have been based on propagating a false view of the nature and degree of gravity of the offence of which the respondent was convicted, serious as it is. In DPP v. Hamilton (CCA, 25^th January, 1999, Unreported) Lynch J., in delivering the judgment of the court in a case in which the accused had been convicted of two counts of sexual assault against a 14 year old girl, referred to the fact that the accused had been beaten up by vigilantes, “upon a completely false view of what was the true position” concerning the offence. He added “He had been rightly held up to opprobrium also but on a basis which is rather excessive …”. Expressly having regard to these two factors, and the other circumstances of the case, the court reduced the sentence in that case on appeal. Every case depends on its own particular circumstances.

73. In this case it could be said that the respondent has paid a heavy price for the offence which he committed (and this is not a reference to any payment of compensation which, for the reasons explained earlier, is not being considered a mitigating factor in this case). It was brought about essentially by his own wrongdoing, although undoubtedly the intensity and nature of the public attacks on him, by some sections of the news media, was to a degree excessive and based on false characterisations of the gravity of the offence. In the circumstances the Court will have regard to some degree to the totality of hardship, but not to every element relied upon by the respondent. There was no evidence, for example, as to the extent he might be financially worse off as a result of leaving his former business. They add some, although not major weight, to the relevant mitigating factor which this Court has to take into account.

Other Mitigating Factors
74. In determining what sentence it should impose, this Court must reach its decision on the facts as of the date of this review. (People (Director of Public Prosecutions) v. Egan (Unreported, C.C.A., 18th December, 2000)). Consequently considerations have arisen which this Court must take into account which were not before the sentencing court on the 30th July, 2012.

75. Some reduction in sentence must be made to take account of the fact that Mr. Lyons is being sentenced twice. That is established in the case law of the Court. He has already served the totality of the custodial sentence imposed by the sentencing court. The reason for this reduction is to take account of the fact that even in the absence of expert or other evidence, this Court is entitled to draw an inference that Mr. Lyons must have suffered stress and trauma over and above the level which invariably results from involvement in the criminal process due to this appeal by the Director of Public Prosecutions and his being subjected to an additional sentencing hearing, (People (Director of Public Prosecutions) v. Heeney [2001] 1 IR 736 at 740, Supreme Court). This situation arises from systemic delays in the appeal system where the volume of cases and the limited resources of the courts make it impossible to dispose of appeals in many cases before the trial sentence has expired.

76. This Court may also reasonably infer that a burden of further stress and trauma will follow from the fact that having served the custodial sentence imposed by the sentencing court and having been released from prison in December 2012, the respondent must now face being returned to prison again. The fact that he has completed the sentence originally imposed and has been at liberty since December 2012, does not fetter the jurisdiction of this Court to impose an immediate custodial sentence. However, this fact and the fact that he has kept the peace and conducted himself properly since the imposition of the original sentence is something to which this Court may have regard in mitigation.

77. It was submitted by senior counsel for the respondent that this was a case where the shock of the “prison gates clanging shut behind him”, would be so great for a man of the respondent’s years and law abiding background in the community prior to this first offence, that a long sentence of imprisonment would be unnecessary to meet any of the three accepted objectives in sentencing, - to punish the offender, to deter others from similarly offending and to encourage the rehabilitation of the offender in his or her own interests and in the interests of the general public. While there are relevant factors the general deterrent effect of custodial sentence reflecting the seriousness of the offence remains also relevant.

78. Counsel also relied on the so-called “clang of the prison gates” on a first offender of previous good character. In a case of R. v. Smedley [1981] 3 C.A.R. (s) 117, the Court Appeal (Crim.Div.) of England and Wales per. Watkins L.J. gave the following explanation for this expression which originated, it appears, in that jurisdiction:-

“What is meant by such expressions as ‘hearing the closure of the prison gates’ or ‘hearing the clang of the prison gates’, it is that a short sentence of imprisonment, in respect of some prisoners for certain kinds of offences, is a sufficient measure of disapproval of what has been done and a suitable means of bringing that person to his or her senses. By a short sentence in this context, what is usually meant is something in the region of 12 months’ imprisonment or less. So to talk in terms of 30 months’ imprisonment in the same breath as using expressions such as ‘hearing the clang or closure of the prison gates’ is inapposite.”

79. That was a case where a 31 years old woman, living with her mother and aunt, who, though a trained nurse, had worked at various different employments, had while employed as a cashier stolen Ѓ4,000 from her employer. The Court of Appeal substituted a sentence of 9 months imprisonment for the 30 months imprisonment imposed by the sentencing court. This Court is satisfied that offence with which we are concerned in the instant appeal is not, by reason of its gravity, of a kind for which this approach to sentencing would be entirely appropriate.

80. However, in a different context, this Court may and should take cognisance of the fact that imprisonment is a particularly hard punishment for any convicted person in a position similar in age and previous good character to the respondent. The position was very succinctly stated by the Court of Appeal (Crim. Div.) of England and Wales in R. v. Torwerth Jones [1980] 2 C.A.R. (s) 134 as follows:-

“But there is one matter which we consider to be paramount in cases of this sort [fraud on the Revenue] and that is this, when a man aged 58 or in that region finds himself faced for the first time in his life with a criminal conviction, the mere fact that he goes to prison at all is a very grave punishment indeed. Of course the fact that he goes there, means necessarily that he is going to suffer financial loss. But the closing of the prison gates behind him, for whatever length of time they may stay closed, is a very great punishment indeed. . . .”

81. In similar terms, in R. Vinson [1982] Crim. L.R. 192, a case which involved an indecent assault on girls aged ten and eleven by their uncle at the home of the children’s grandfather and involved touching their private parts, asking them to remove their underclothes, and exposing himself to them, the Court of Appeal (Crim. Div.) held as follows:-

“The result of the case had been relatively catastrophic for the appellant, who had already lost his job and home, and whose wife was threatening to leave him. It was accepted that these offences must be visited with an immediate term of imprisonment, but these were not the most serious of such assaults; for a man of good character undergoing his first prison sentence, conviction and a prison sentence are in themselves a substantial punishment. A sentence of two years was too heavy; a sentence of 12 months would have been the right sentence if the appellant had not pleaded guilty and the proper credit for his plea would be a reduction of three months. The sentences would accordingly be reduced to nine months.”

Conclusion
82. In a case such as this where the offending is so serious it must normally attract a significant custodial sentence, notwithstanding any mitigating factors. Having regard to the gravity of the offence and the impact on the victim, which has been fully referred to earlier in this judgment, the Court is satisfied that the respondent should be returned to prison, notwithstanding that he has completed and been released for some time from the 6 month sentence which he received in the Circuit Court. Taking all the circumstances, which have been identified as relevant in this judgment, the Court is satisfied that the portion of a term of 6 years imprisonment which he should be directed to serve should be 2 years. The Court will, therefore, impose a sentence of 6 years, suspending the last 4 years. He is entitled to allowance for the sentence which he has already served. He must enter into a bond to keep the peace and be of good behaviour while in prison and for a period of 3 years following on his release. He should be supervised for a period of 12 months post-release. In addition, he will remain on the sex offenders register for a period of 10 years from the date of conviction.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IECCA/2014/C27.html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Lyons [2014] IECCA 27 (31 July 2014) URL: http://www.bailii.org/ie/cases/IECCA/2014/C27.html Cite as: [2014] IECCA 27

Irish Court of Criminal Appeal