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  1. DPP -v- McC & D.

Case number: SC3

 

Case title: D.P.P. -v- McC & D.

 

Date: October 25th, 2007.

 

Neutral Citation: [2007] IESC 47. 

 

Judgment: Kearns J. 

 

Composition of the Court: Murray C.J., Denham J., Geoghegan J., Kearns J., Finnegan J. 

 

Keywords: Section 29 of the Courts of Justice Act 1924 – Sentence – section 29 of the Criminal Justice Act 1999 – Plea of guilty –

 

Summary: The first appellant pleaded guilty in the Central Criminal Court to 20 counts involving sexual offences against two of his daughters and four of his nieces. There were eight counts of rape, one count of attempted rape, four counts of sexual assault and seven counts of indecent assault. The trial judge certified the appellant as a sex offender and imposed concurrent life sentences in respect of the rape offences and sentences of four years in respect of the indecent and sexual assault offences, the same to be served consecutively in respect of each victim though concurrently with each other. This was appealed to the Court of Criminal Appeal, which appeal was unsuccessful.

 

The second appellant pleaded guilty to ten sample charges of rape and to two sample charges of sexual assault, all offences which were committed against four of his daughters over a period of 20 years. The trial judge imposed sentences of life imprisonment on all of the rape counts, together with sentences of five years imprisonment in respect of any sexual assault count. This was appealed to the Court of Criminal Appeal, which appeal was unsuccessful.

 

In both cases, the trial judge had indicated that the imposition of a life sentence was of some benefit to the appellants in that it allowed them the possibility of access to the Parole Board, which access would have been denied if concurrent fixed-term sentences had been imposed.

 

The Court of Criminal Appeal certified a point of law in both cases as to whether it was an error of principle for a judge, in determining sentence, to fail to take into account such mitigating factors as an early plea of guilty, previous good character, expressions of remorse and sustained attempts at rehabilitation.

 

The Supreme Court held it would always be an error of principle for a judge to fail to take into account factors in mitigation of sentence, be it an early plea of guilty, previous good character, expressions of remorse or sustained attempts at rehabilitation but that this would not always lead to a reduction in sentence.

 

The Court considered the effect of the introduction of s. 29 of the Criminal Justice Act 1999. The Court held that s. 29 does not repeal the well-established Irish jurisprudence on sentencing. s. 29 does not require courts to depart from normal sentencing procedures, which include the granting of a reduction for a timely plea of guilty.

 

A court is entitled, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. A court is nonetheless still under an obligation to consider all mitigating factors and to give them due weight. However, having done so, the court is not precluded from passing such maximum sentence. It would, however, be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those exceptional circumstances in such a way that would make it absolutely clear why the maximum sentence is warranted when there had been mitigating factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.

 

There are particular problems associated with the imposition of a life sentence. In practice, any decision as to the length of time a person sentenced to life imprisonment actually serves rests with the executive branch of government rather than with the judiciary. However, this fact in turn creates difficulty from the point of view of a sentencing court tasked with the imposition of a proportionate sentence. It can only be seen as unsatisfactory that a court exercising independent judicial powers is left in a situation of not actually knowing the period which will be served by a person on whom such a sentence is imposed. This problem does not arise in the case of a determinate sentence, a fact which constitutes a strong incentive for the court to opt for the latter type of sentence.

 

In the absence of a statutory Parole Board acting under defined terms of reference and applying settled criteria whose decisions would be accepted, except for stated reasons, by the Government, any sentence of life imprisonment remains one of uncertain duration. The trial judge may accordingly have taken into account the mitigating factors suggested in imposing a life sentence on the appellants.

 

However, to the extent that the trial judge may have considered the workings of the Parole Board as of benefit to the appellants by, paradoxically, almost certainly allowing one or both of them to obtain early release, the Court held that this approach would be an incorrect way of giving credit for a guilty plea. There must inevitably be a considerable element of uncertainty attendant upon such an approach in the sense that no one can predict future legislative or policy changes. There are also likely to be considerable negative implications for pending cases if the imposition of a non-mandatory life sentence becomes a norm in circumstances where there has been a plea and co-operation by an accused person.

 

It was the Court’s view that lengthy concurrent but determinate sentences may be seen as providing a more tangible mechanism for granting credit for a guilty plea and other mitigating factors in a form which is transparent and identifiable.

 

The offences here could be categorised as being in the very worst category, particularly having regard to the fact that the victims were daughters of the offenders and, in the case of the first applicant, his nieces also. Quite clearly, the maximum sentence should be reserved for the worst variant of the offence in question. The Court accordingly held there were those exceptional circumstances common to both cases such as to permit the imposition of life sentences despite the mitigating circumstance of the plea of guilty present in both.

 

http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7ca3c1bb866978e78025737f0055c6c3?OpenDocument