Sentencing Aged Offenders

On Monday of this week, Patrick O’Brien, Old Court Avenue, Bray, Co. Wicklow, was sentenced to twelve years imprisonment for raping and sexually assaulting his daughter over the course of ten years of her childhood. He can be named here, and in the media, because the victim of his abominable crimes, his own daughter, Fiona Doyle, bravely waived her right to anonymity in order to expose him and his actions to the public. She also braved the glare of public and media interest to highlight the fact that this man, who had finally admitted his crimes and pleaded guilty, walked free from the sentencing court. Although Carney J. in the Central Criminal Court found that the crimes committed by Ms Doyle’s father warranted a sentence of twelve years imprisonment, he suspended nine of those years, leaving a custodial sentence of three years. Carney J., however, considered that there might be an appeal to the Court of Criminal Appeal by the convicted man against the severity of this sentence and, pending that appeal, he released Mr O’Brien on bail.

Writing in today’s Irish Times, Tom O’Malley BL, an expert on sentencing law, gives statistics from his study of 100 child sexual abuse cases in which sentences were passed in the past seven years or so. The study notes the prison sentence which the offenders were actually required to serve (less one quarter remission) and does not include any suspended time. 50% of sentences were for seven years or less, 45% were from eight years to life imprisonment, with 20% of the total receiving sentences of twelve or more years. In 5% of cases, however, the sentences were fully suspended.

Several issues arise for the courts in relation to sexual offences committed against children which are prosecuted through the courts when those children have become adults, and finally feel able to bring the matter to the criminal justice system. Delays in the prosecution of the crime, although often resulting from very understandable factors, create difficulties for the system. Important evidence, such as forensic evidence, will have been lost; witnesses of note may have passed away or may by now be incapacitated; and, the memories of witnesses who are in attendance may not be as clear as those in cases of more recent incident. As much as possible though, the courts aim to proceed with trials for historic sexual abuse. The only concern is whether a fair trial can still occur in light of the passage of time and its attendant evidential difficulties.

None of these difficulties presented in this week’s case, however, as the offender pleaded guilty and no trial on the evidence was required. A further question raised by many such cases did present itself, however: should aged offenders in ill health be sentenced in the same way as they might have been at the time of the commission of the offence, or be treated differently?

The Irish courts have always operated on the basis that a sentence should be appropriate not only to the offence committed, and the circumstances in which it was committed, but also to the offender himself. Aggravating and mitigating circumstances are taken into account by the courts in issuing sentences. In sexual offence cases, in particular, for example, an early guilty plea will mitigate in favour of the offender in terms of the sentence applied, as such a plea will have saved the victim from the emotional pain of testifying as to the relevant events and from the fear of the offender’s acquittal. If two twenty year old men, for example, were accused of rape, A pleads guilty and expresses remorse for his actions while B pleads not guilty and expresses no remorse, differing sentences are likely to be imposed.

What effect the age and health of an offender should have on sentence seems a more difficult question to answer. On the one hand, the fact that an offender, such as Mr O’Brien, has gotten away with his crimes for over thirty years should not mitigate in his favour or result in a sentence more lenient than that which would have been applied had he been prosecuted at that time. On the other hand, the argument goes that imprisonment of a man in his seventies for a period of twelve years, or longer, may be seen as an injustice in itself.

This latter approach seems to be the view adopted by the Court of Criminal Appeal in DPP v James Kennedy [2008] IECCA 52, and Carney J. in this week’s case seems to have been influenced by that decision.

In Kennedy, in a rather short judgment, Kearns J. (with Birmingham and Edwards JJ.) suspended in the entirety of sentences of six months, and nine months (to run concurrently), which had been handed down by Carney J. in the Central Criminal Court, due to the applicant’s age (84) and severe ill-health (wasted left leg and arm, urinary incontinence, occasional faecal incontinence, angina, asthma, high blood pressure, depression, skin problems, dizzy spells, had been treated for skin cancer, had heart attack). The Court of Criminal Appeal had held that in the “undoubtedly exceptional circumstances of this case” it was appropriate to suspend the sentences in their entirety. It held that Carney J. had given “insufficient weight to the illnesses and declining health of this very old man” and this had amounted to an error of principle in terms of sentencing.

Differences in the ill-health of Mr O’Brien and Mr Kennedy might be drawn, but I am unqualified to do so. What I can do, though, is to point to the most significant differences between the offences committed in the two cases. Kennedy was convicted of two counts of indecent assault relating to two specific incidents: one where he exposed himself to his nine year old niece, and one where he fondled her genital area. These are serious crimes and their likely effect on the victim cannot and should not be minimised. However, they are distinctly different from the systematic rape and abuse that Mr O’Brien admits to having perpetrated on his daughter from the age of seven to seventeen. It may be appropriate to take age and ill-health into account in reaching a proportionate sentence, but they should not override other factors, including the nature of the offences committed.

As of now, the custodial element of the sentence imposed on Mr O’Brien by Carney J. is three years. He has not suspended that. He has, however, released Mr O’Brien on bail pending an appeal to the Court of Criminal Appeal. The better course of action might have been to refuse bail pending appeal, but the case might not then have received the wave of attention it is now receiving and the Court of Criminal Appeal might not have been under pressure to examine further its policy on elderly offenders. Perhaps this is what Carney J. was thinking; though it is of little comfort to Ms Doyle today.

In Kennedy, the Court of Criminal Appeal looked to precedents including People (DPP) v POC (Unreported, ex tempore, Court of Criminal Appeal, Hardiman J., 28th May, 2003) and OB v DPP (Unreported, ex tempore, Supreme Court, 5th February, 2007).

In POC, the somewhat confusing view was taken by Hardiman J. that a sentence imposed on a man in his seventies would occupy a more significant portion of his life than a sentence imposed in circumstances where the offences had been reported immediately. The logic behind this statement is difficult to follow. It is arguable, for example, that serving a three year sentence between the ages of 20 and 23 would be more “significant” than doing so between 70 and 73. Serving the sentence in one’s youth is likely to have a detrimental impact on one’s future career prospects, one’s personal life, one’s educational prospects etc. An appeal to the Court of Criminal Appeal from this week’s decision may present an opportunity for that court to clarify its reasoning in cases of this nature, and to tease out its views on the issues in more detail.

In OB, Hardiman J. (again), in the Supreme Court, described the issue to be decided as “a strong case in what you might call visceral justice” and stated that the Court must be alert not to replace one injustice with another. This phraseology seems to have played on Carney J.’s mind this week and to have influenced his decision. The public response, however, suggests that the concept of “visceral justice” is subjective, and the courts’ view of its impact on the sentencing of aged offenders is not necessarily universal.

It is to be hoped that any appeal in this case is heard expeditiously, as the issues are important and pressing. Patrick O’Brien’s age may mean that imprisonment occupies a “significant portion of his life”, but his own admitted actions may yet result in that imprisonment. His daughter bears no responsibility for what he did to her in the most significant part of her life, her childhood.

Sentencing Aged Offenders

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