Court of Appeal: Convicted rapist who sexually assaulted girlfriend’s children has sentence reduced

Four CourtsA man who was imprisoned for rape in 1995, and who went on to sexually assault the four daughters of a woman he entered into a relationship with after his release, has had his sentence of 12 years reduced to 9 on appeal.

Mr Justice Hedigan found that the sentencing judge had erred in principle when finding that three of the counts would attract headline sentences of four years.

Background

The Court heard that the four victims are sisters and were minors at the time of the offences, which occurred while the appellant, MF, was in a relationship with their mother and lived with them from 2002 to 2004.

The first three counts related to the eldest victim (“A”) having occurred on a daily basis when she was 12 to 13.

Counts 11, 12, and 13 related to victims B, C, and D; and occurred when they were aged 12, 11, and 7 respectively

After MF moved out of the house victim A confided in a teacher and a complaint was made to the Gardaí in early 2005.

Thereafter victims B, C and D made their allegations known.

MF was arrested and interviewed in 2005, but prior to charge he left the jurisdiction.

He was arrested in the UK in 2013, and extradited in 2015.

In July 2016, after a jury had been empanelled, MF entered a guilty plea in the Central Criminal Court to six counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended.

In October 2016, MF was sentenced to a cumulative sentence of twelve years. This was backdated to 1st July 2013 to account for the time MF spent in custody in the UK.

MF’s previous convictions

The Court heard that MF had 21 previous convictions.

The most significant of which was for s. 4 rape in 1995 – MF received a nine year sentence and was released in 2001.

The other convictions were for bringing an article into prison in the UK, road traffic offences, burglary, malicious damage, arson, trespassing, larceny, and escape from custody.

Sentence

The aggravating factors identified were the nature of the offending, the multiplicity of victims, their tender years, the abuse of a position of trust, the threats he made, the abuse of all four victims during the same time period, the prolonged offending and his previous convictions.

The mitigating factors were his guilty pleas, but they were late, his remorse in court and apology, again at a late stage, his addiction difficulties and efforts to address them and his willingness to engage in programmes to gain insight into his conduct.

The appellant submitted that:

  • The sentencing judge failed to give adequate weight to the mitigating factors
  • The guilty pleas were of significant assistance to the prosecution and spared the victims the ordeal of giving evidence (The People (DPP) v. O’Sullivan considered)
  • The consecutive nature of the sentences imposed was disproportionate (The People (AG) v. O’Driscoll [1972] 1 Frewen 351 considered)
  • The sentence should reflect the personal circumstances of the criminal and the gravity of the offence (The People (DPP) v. McCormack [2000] 4 I.R. 356 considered)
  • The judged erred in imposing consecutive sentences as between the victims and in the level of sentence imposed as regards the offending behaviour toward each victim, particularly with reference to victim A.
  • It was considerably significant that the behaviour towards the other three victims were once off offences. It was not reasonable to suggest these offences reached the mid-level of this offending, and that commencing at four years for each was an error of principle.
  • Consecutive sentences were disproportionate and no exceptional circumstances were outlined to ground their imposition (The People (DPP) v. J.S. [2015] IECA 254 considered)
  • The sentence structure means that there was ostensibly no regard for the objective of incentivising rehabilitation.

The DPP submitted that the pleas were entered and remorse expressed after the jury had been empanelled – therefore little comfort was given to the victims, and their ordeal ended at the latest possible time. Considering s. 29(1) of the Criminal Justice Act 1999, the sentencing judge was entitled to take into account the late stage at which the plea was entered.

Furthermore, the DPP submitted that:

  • The headline sentences were reduced in consideration and acceptance of mitigating factors
  • The sentences reflected the significant aggravating factors of the victims’ ages and the relationship of trust protracted and serious offending against victim A.
  • MF had a history of previous convictions – most significantly a conviction for s. 4 rape.
  • The victim impact statements reflected how deeply affected the lives of all four victims had been.
  • The sentencing judge was entitled to exercise her discretion and impose consecutive sentences to reflect the offending against each victim. (The People (DPP) v. F. [2010] IECCA 68 considered)
  • The post release supervision period specifically catered for rehabilitation.

Court of Appeal

Justice Hedigan stated that The People (DPP) v. Byrne [2017] IECA 97 set out the process which should be undertaken by a court when sentencing.

In all the circumstances, Justice Hedigan stated that the sentencing judge “clearly approached the task of sentencing in this matter in a careful, methodical and meticulous manner… Appropriate account was taken of the gravity of the offences, their nature being sexual assaults on very young girls, in his charge, in loco parentis, the multiplicity of victims who were sisters, their abuse during the same time period and the threats he made to each”.

Double counting of the aggravating factors

Counts 11, 12 and 13, albeit very serious assaults, were one-off events – Justice Hedigan stated that these were very different in nature to the offences reflected in counts 4, 6 and 9 which involved assault on a daily basis.

According to Justice Hedigan, the same egregious factors taken into account in sentencing counts 4, 6 and 9 were also taken into account in relation to counts 11, 12 and 13 – as such, this reflected an element of double counting of the aggravating factors.

Further, Justice Hedigan stated that the offences involved in counts 11, 12 and 13 would not normally attract a headline sentence of four years – therefore this represented an error in principle.

Resentencing for counts 11, 12 and 13

Being of a similar nature, the Court held that counts 11 and 13, should attract sentences of one year each.

Because of its more serious nature, the Court held that count 12 should attract a sentence of one year and six months.

Finding that the three sentences should be consecutive – the cumulative sentence imposed was nine years and six months.

  • by Seosamh Gráinséir for Irish Legal News