Supreme Court: Appeal court failed to consider totality principle when re-sentencing man for historic sexual abuse
The Supreme Court has allowed an appeal brought by an accused who claimed that the Court of Appeal failed to consider the totality principle in his case. The man had successfully argued in the Court of Appeal that the trial judge had erred in sentencing him for several indecent assault offences, but the court held that only “limited intervention” was necessary to redress the error.
About this case:
- Citation: IESC 50
- Court:Supreme Court
- Judge:Ms Justice Iseult O'Malley
Delivering judgment in the case, Ms Justice Iseult O’Malley provided a general overview of the approach to be taken when re-sentencing an accused in a successful appeal against sentence. The court held that the Court of Appeal did not clearly deal with the totality principle when considering the overall sentence of eight years and nine months and this was an error of law.
The accused was convicted in October 2018 for a number of indecent assaults committed in 1978. The victim was 11 years old at the time and was staying with the accused’s family during the summer. The accused was approximately 10 years older that the victim.
During his stay with the accused and his family, the victim was groomed and abused by the accused. The abuse included fondling, making the victim masturbate the accused and giving oral sex.
The accused was sentenced in February 2019. He was 61 years old at the time and had no previous convictions. The accused maintained his innocence of the charges and a Probation Service report indicated that he was at a low risk of reoffending.
A victim impact statement outlined the severe long-term effects that the offending had on the complainant. The victim began drinking shortly after the abuse. He later developed a drug addiction and mental health issues, which led to various criminal convictions and lengthy treatment. His long-term relationships failed.
The accused had to be sentenced by reference to the appropriate sentences at the time of the offending. In this case, the maximum sentence was two years imprisonment for indecent assault.
The trial judge placed the offences at the high end of the scale and identified a headline sentence of 21 months on each count of indecent assault. The court did not lower the headline sentence on the basis that there were limited mitigating factors in the case. The court noted that remorse was not in question and the lack of previous convictions was discounted as being relevant.
The court concluded that the accused was to be sentenced to 21 months in prison for each offence and the sentences were to run consecutively. Since there were five charges of indecent assault, the total sentence was eight years and nine months. The final 21 months were suspended for a period of three years.
The accused appealed the sentence to the Court of Appeal. The court upheld the trial judge’s ruling on the headline sentence for each offence and the consecutive sentences which were applied in the case. However, the court held that there were mitigating factors in the case, including the young age of the accused at the time and the lack of reoffending in the previous 40 years.
As such, the court engaged in a “limited intervention” with the sentence. The court imposed five consecutive sentences of 21 months each with the final 33 months suspended. The accused appealed to the Supreme Court.
In the appeal, the accused and the DPP agreed on the general principles applicable to sentencing appeals. The parties agreed that the starting point for an appellate court was to examine whether an error occurred in the sentencing process. If an error in principle is found, then the necessity for re-sentencing arose.
It was also agreed that re-sentencing should be conducted on an ab initio basis and not by using the erroneous sentence as a starting point. The parties outlined that the overall approach for a sentence appeal included the following steps: 1) identifying the error in principle, 2) quashing the conviction, 3) considering whether further submissions were required before re-sentencing, 4) identifying the correct headline sentence and 5) imposing the correct sentence having considering any mitigating factors.
The accused argued that the Court of Appeal ought to have comprehensively re-sentenced him rather than beginning from a starting point of 21 months which was identified as the appropriate headline sentence. It was also argued that the Court of Appeal failed to consider the principle that consecutive sentences should be used sparingly.
Delivering judgment, Ms Justice O’Malley noted that sentencing for historic sexual abuse cases differed from other cases due to the passage of time and the clear effects that the abuse had on the victim’s life. Further, sentencing parameters had altered over the years and this could give rise to “a degree of tension” between older statutory provisions and a modern understanding of the harms caused by sexual abuse.
It was a fundamental principle that a court must take account of the nature of the crime and the personal circumstances of the accused (see People (DPP) v. M.  3 I.R. 306). An error in the headline sentence would normally require an appellate court to reassess the entirety of a sentence, the court said.
In this case, while the crimes did not involve violence, the offending included aggravating factors such as the age and vulnerability of the victim. The offending also included a classic pattern of grooming which culminated in serious incidents of sexual abuse.
In assessing personal circumstances, the court held that the absence of criminal convictions was “always a very significant relevant personal circumstance.” The court noted the judgment in People (DPP) v. P.H.  IEHC 335 which outlined that a substantial discount could be appropriate if an offender had conducted themselves well in society in the years after a crime.
Considering the issue of consecutive sentencing, Ms Justice O’Malley noted that modern judges might take a different view of sexual offending against children than judges from 40 years ago based on the relevant legal regimes. As such, it was not illogical for a judge who, dealing with offences of increasing seriousness, applied a headline sentence close to the maximum for the less serious offences.
The court held that consecutive sentences should be applied sparingly but this did not mean rarely or exceptionally. It was not necessarily an error of principle to impose consecutive sentences where a trial judge did not think that concurrent sentences would reflect the gravity of the offending.
Importantly, there was an obligation to adhere to the totality principle (People (DPP) v Farrell  IECCA 68). The court held that it could not identify that the Court of Appeal had regard to the totality principle in its judgment.
The court noted that the sentence of eight years and nine months was one that equated to rape or buggery cases in the Central Criminal Court. While cases involving multiple indecent assaults could compare to such cases, it “would require some explanation and rationalisation in light of the totality principle”.
The court held that the absence of a consideration of the totality principle by the Court of Appeal meant that the accused had to be re-sentenced. It was held that the Supreme Court would re-sentence the accused, with judgment to be delivered at a later date (see People (DPP) v. F.E.  IESC 5).
The People (at the suit of the Director of Public Prosecutions) v. M.J.  IESC 50