Life sentence for child rapist upheld

The appellant, Jimmy O’Neill, had been arrested in the immediate aftermath of the rapes, which occurred in a flat in which he was staying after he lured the two girls there by claiming there was another little girl there who wanted to play with them.

During his fifth interview, the appellant made full admissions, and outlined that he had been drinking since 7am that morning and had also taken Valium.

The appellant had no previous convictions for sexual offences, but was a serial offender of public order offences.

It emerged during his trial that he had alcohol and substance abuse issues, psychiatric problems, an unstable emotional and family life, and may have suffered brain damage as a young child.

It was also acknowledged that he had pled guilty from a very early stage, and had not required the children to give evidence, or required his legal representatives to view the taped interviews. This was a comfort to the victims’ families.

On appeal, counsel for the appellant argued that a life sentence was inappropriate due to the plea of guilty.

It was noted that s.29 of the Criminal Justice Act 1999 does not preclude the use of the maximum sentence when the court is satisfied that there are exceptional circumstances relating to the offence.

Also relevant is s.29(1) which provides that a court should take into account the stage at which a person indicated an intention to plead guilty and the circumstances in which any such indication was given. In this case, and somewhat unusually, the appellant pleaded guilty in the District Court and was sent forward for to the Central Criminal Court for sentence on signed pleas.

The Judge also noted DPP v. Z IECCA 13, which found that “While it may always be possible to envisage a worse case (abuse might have gone on for a longer period or involved more children or had different, and arguably more depraved, features), nonetheless, in order that it might be said that there are exceptional circumstances relating to the offence, it is not necessary that it be impossible to envisage an even more serious offence of the type concerned.”

The Judge noted that the Court had been given victim impact reports, prepared by the victims’ parents. He noted that they made “truly harrowing reading”.

It was also noted that the Trial Judge had sentenced the appellant on the same day as hearing the evidence, and had stated that:

“In the normal course, the accused would be entitled to a substantial discount for employing the signed plea procedure, which had up to now, fallen into desuetude in this Court. He would also be entitled to a substantial discount for his early plea of guilty and cooperation. Unfortunately, for the accused, this case is too serious for his expectations in this regard to be given effect…. I have examined the cases where life sentences mainly imposed by me in relation to children have been upheld, and I am satisfied that this case falls into that category.”

The appellant submitted that other cases where life sentences have been imposed, such as DPP v. Z IECCA 13 have involved prolonged abuse by persons in a position of trust and that what was in issue here was a single incident, albeit a very serious incident, which would not appear to have been premeditated but rather was opportunistic.

The point was also made that the period of time spent under a life sentence is now longer than it was in the past, and that a life sentence would mean that there was no incentive for individuals charged with serious offences to plead guilty.

Counsel for the appellant also criticized the Trial Judge’s remarks in relation to the accused’s background and drink and drug problems:

“In relation to the accused’s dysfunctional background, I have regard to the ruling of Geoghegan J., that this affords little if any mitigation. In relation to any question of drink or drugs, I have regard to the ruling of Murray C.J., as he then was, that this affords no defence or mitigation in one’s responsibility to society.”

The Judge noted that the reference to the views of Geoghegan J. is a reference to the case of DPP v. Stafford IECCA 15, and the reference to Murray C.J. is a reference to DPP v. Keane 3 I.R. 177.

He found, like the Court of Criminal Appeal in DPP v. Adam Fitzgibbon 2 I.L.R.M. 116, that the remarks of the Trial Judge fully reflected what was being said by either Murray C.J. or Geoghegan J.

However, in the present case, counsel was realistic enough to accept that such factors were unlikely to influence the outcome.

The Judge found that the issue for the appeal was whether the circumstances of the offences were exception to the extent of permitting, or indeed even requiring, the imposition of life sentences and, secondly, whether the early plea of guilty and the manner in which the appellant met the case meant that the imposition of an indeterminate life sentence was inappropriate.

He noted that it was “almost trite” to state that the offences were those of the utmost gravity.

While certainly a plea of guilty would almost always lead to a reduction in sentence, the Oireachtas has specifically identified that there may be cases where the imposition of the maximum penalty is appropriate.

While the case did not concern prolonged abuse or a position of trust, the facts, beginning as they do with the abduction of two young children, clearly placed the case into an exceptional category.

The Judge noted the case of DPP v. R.McC, who noted that lengthy concurrent but determinate sentences, could provide a more tangible mechanism for granting credit for a guilty plea and other mitigating factors in a form which is transparent and identifiable.

It was observed that the distinctive feature of the sentence of life imprisonment is that it is indeterminate. Unlike a prisoner serving a fixed term, the life sentence prisoner does not know when, if ever, he or she will be released. It is for this reason that even in very bad cases, the court will think first of a lengthy determinate sentence.

However, the Judge found that the Trial Judge was an experienced one, who had felt that the case was of one so exceptional as deserving a life sentence.

While the Trial Judge had been criticized for failing to set out in detail his reasons, it was observed that in such a case “the facts spoke for themselves…this was a conclusion which he was entitled to reach, and no error in principle has been disclosed”.

Accordingly, the appeal was dismissed.