THE COURT OF CRIMINAL APPEAL
Murray, J.
Herbert, J.
Moriarty, J.
[282CJA/12]
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 31st day of July, 2014 by Murray J.
(UNAPPROVED)
Conviction and Sentence
1.
The respondent to this application, the accused Anthony Lyons, was convicted on
28th 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 3rd 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 18th 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 28th June, 2012 and subsequently on the 9th, 12th and 30th 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 5½ 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
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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 29th 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 3rd 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
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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 11th November, 2012. He gave a written statement, prepared with the
assistance of his solicitor, to the gardai admitting that he had committed the assault.
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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 anticholesterol 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
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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 28th 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
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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
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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
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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.
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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.
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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 5½ 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 postrelease. 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.
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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
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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
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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.
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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
15
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
16
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
17
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.
18
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
19
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
20
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 selfevident 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
21
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.
22
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:
(i)
The period of time already served by the respondent in prison;
(ii)
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;
(iii)
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;
(iv)
Total destruction of his reputation and standing in the community;
(v)
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;
(vi)
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,
23
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.
24
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, 25th 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
25
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 I.R. 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
26
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.”
27
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 £4,000 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
28
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.
29