The Court of Appeal found that suspending nine years of a father’s sentence for raping and indecently assaulting his daughter was unduly lenient, and invited the parties to submit updated material, including medical reports, before it imposes an appropriate sentence.
In a judgment delivered on 19 January 2015, President Ryan, with Sheehan and Mahon JJ, allowed the Director of Public Prosecutions’ review application to the extent that it found an error in principle in the sentencing approach. The court did not impose a new sentence in this judgment.
The respondent had pleaded guilty to eight sample counts of rape and eight sample counts of indecent assault, covering offending against his daughter between 1973 and 1982. The Central Criminal Court imposed 12 years for each rape count and three years for each indecent assault count, with all terms concurrent. It suspended the final nine years of the rape sentence, leaving three years to serve.
The Court of Appeal endorsed the trial judge’s assessment that the offending belonged in the most serious category. It noted the victim’s young age, the repeated abuse over nine years, the breach of trust and the lasting harm described in her impact statement. The respondent’s counsel had relied on his guilty pleas, remorse, health, age and good behaviour since the offences. The medical material before the sentencing judge consisted of letters from his general practitioner; prison nursing evidence was that his conditions could be treated in custody at a level comparable to community care.
The appeal court said illness and age can mitigate sentence, but do not automatically make imprisonment inappropriate. It accepted that the respondent had serious illnesses, pain and significant disabilities, and that the medical letters were relevant material the trial judge could consider. However, it said more detailed reports from specialists would have been preferable and did not endorse the sufficiency of that method of presenting serious medical evidence.
The court distinguished the case relied on by the sentencing judge, DPP v Kennedy, as involving exceptional circumstances and significant medical evidence. It concluded that the respondent’s condition did not make prison exceptionally oppressive or unjust, particularly given the evidence about care available in custody. The judge had therefore allowed excessive mitigation by suspending nine years.
The judgment left resentencing for a later stage. The court said both parties would have an opportunity to submit relevant, up-to-date material, particularly medical reports, before it determines the appropriate sentence under section 2 of the Criminal Justice Act 1993.