Director of Public Prosecutions -v- Murray [2017] IECA 292 (03 November 2017)

Court of Appeal Composition of Court: Birmingham J., Mahon J., Edwards J. Judgment by: Birmingham J. Status: Approved Result: Allow and vary THE COURT OF APPEAL Birmingham J. Mahon J. Edwards J. No. [240/2013] The People at the Suit of the Director of Public Prosecutions Appellant V Michael Murray Respondent JUDGMENT of the Court delivered on the 3rd day of November 2017 by Mr. Justice Birmingham 1. This is an application brought by the Director of Public Prosecutions seeking to review on grounds of undue leniency sentences that were imposed on the respondent, Michael Murray, on 21st October, 2013 in the Central Criminal Court. The sentences in question were sentences of 15 years imprisonment on each of two counts of rape and lesser concurrent sentences backdated to 15th February, 2010. The sentences were imposed after a lengthy trial which lasted 24 days which resulted in convictions on counts of rape, s. 4 rape, sexual assault, false imprisonment and child abduction. The appellant appealed against his conviction and this Court, in a judgment delivered on 3rd March, 2017, dismissed that appeal. The Director of Public Prosecutions acknowledges that cases where it would seek to review a sentence of 15 years on the grounds of undue leniency are likely to be few and far between but submits that the facts of this case are singular and the combination of those facts and what she refers to as the complete lack of mitigating factors mean that the sentence was indeed unduly lenient. 2. The background to the case emerges in some detail from the judgment of this Court on the conviction appeal and the Court will not repeat what it said on that occasion. However, in summary it should be recalled that the trial and the convictions that resulted related to a period of approximately 13 hours spanning the afternoon of 12th February, 2010 into the early hours of the morning of 13th February, 2010. On that occasion, the complainant, a young Chinese mother who has been living in Ireland since 2001, was walking with her four year old son from his playschool in the Smithfield area of the city some time after 4 p.m. when she was lured into an apartment by the respondent on the pretext that there was a lady inside who was sick and needed help. Thereafter, the respondent locked the complainant and her son into the apartment and subjected her to an escalating and relentless ordeal of rape, attempted rape, sexual degradation and violence, drugging her, binding and gagging her and threatening to kill both her and her young son. The ordeal lasted through the night and until he left the apartment shortly before 5.30 a.m. on 13th February, leaving her tied up in the bath. 3. At an earlier stage, the respondent had left the apartment for a period in order to take the complainant’s child to the Smithfield area by car and then deposit him alone on the street. This happened between 10 p.m. and 10.30 p.m. The complainant was left bound and gagged in the bath of the apartment while this was being done. 4. The case was fully contested and indeed the respondent put forward the defence that far from the complainant being unknown to him, that she was a prostitute who had been employed by him in an agency that he ran. However, he was convicted on all counts on the indictment by a unanimous jury. 5. The DPP contends that this was a case of particular, indeed singular gravity involving acts of abduction, not just against the victim of the sexual offences that followed but also a 4 year old child who was forced to witness some of the treatment that his mother was subjected to and was then abandoned in the city centre alone and unable to communicate. The period of abduction and false imprisonment was a lengthy one. The victim in the case was raped and assaulted in various ways on a continuous basis over a period of hours, violence was used and the assaults were accompanied by acts of sexual perversion. The appellant points to the drugging of the complainant and the threats to kill her child, as matters which are very unusual and mean that the case is one of very particular seriousness. 6. The respondent to this application, however, says that this request for a review is brought in the teeth of precedent and authority. He says that a sentence of 15 years imprisonment without any portion suspended is a very significant sentence. It is said that it is not a sentence that could be considered to be lenient, let alone is it one that could be viewed as a substantial departure from the norm or to be “unduly” lenient. It is submitted that even if the sentence is considered to be lenient, and the respondent strongly denies that it is such, it is clearly not unduly lenient and that there was no error in principle by the sentencing judge. The respondent argues that by any standards the sentence has to be seen as one that falls within the appropriate range of sentencing options. 7. The DPP refers to the seminal case of DPP v. Tiernan [1988] 1 I. R. 250. She points out that in that case the sentence of 21 years imposed by the trial court was reduced to 18 years but it was reduced in a situation where the accused had made immediate admissions to Gardaí and had then pleaded guilty upon arraignment. She notes that in the course of his judgment, Finlay C. J. had commented that he would have had little hesitation in upholding a sentence of 21 years on the facts of that case, had the appellant put the victim through a trial and the ordeal of giving evidence. The Director accepts that the present case, unlike Tiernan , was not a gang rape but says that it involved acts of abduction against not only the victim but also a 4 year old child along with the other facts highlighted. If all of the circumstances of the present case are considered, it is submitted by the Director that it is in truth graver even that was the situation in Tiernan . She points to the fact that the significant mitigating factors which were recognised as present in Tiernan are wholly absent here. The Director is prepared to contemplate that a case involving facts as serious as the present case might result in a sentence as low as 15 years if there were really powerful mitigating factors present but she says, in a situation where there were no such factors present, that the sentence of 15 years was clearly inadequate. 8. In the course of written and oral submissions, the Director has referred to cases where very substantial sentences of the order of 20 or 21 years were imposed or were in contemplation. She highlighted the case of DPP v. Barry (Unreported, Court of Criminal Appeal, 16th October, 2006) where a sentence of 21 years imprisonment, the final year of which was suspended, was upheld by the Court of Criminal Appeal in an ex tempore judgment and the case of DPP v. Simon Maguire and Patrick McDonagh [1989] 3 Frewen 265 where appeals against sentences of 14 years imprisonment were dismissed. In that case, the applicants had broken into a licensed premises after closing time, threatened and ultimately raped and buggered their victim. Walsh J. referred to the observations of the Supreme Court in Tiernan and commented:- “If these people had been found guilty by a jury of these offences after a plea of not guilty, a sentence of 20 years would not have been regarded by this Court as being unduly severe. The fact that they had either good advice or the good sense to plead guilty in these cases, probably saved them six to seven years of imprisonment.” 9. The submissions on behalf of the Director have also referred to a number of cases where discretionary life sentences were imposed with particular reference to the case of DPP v. Jimmy O’Neill [2015] IECA 327 where a life sentence, after a guilty plea was upheld in what was a one-off offence of rape of two young child victims. 10. In this case, the sentencing judge referred to the existence of a maximum sentence of life imprisonment and the fact that such sentences had been imposed on occasions but he quickly dismissed it from further consideration. In the Court’s view, while not expressing any concluded view on how it would have approached matters, it was within the judge’s discretion to look towards a lengthy determinative sentence rather than an indeterminate life sentence. 11. As has been set out by the Court of Criminal Appeal and by this Court in many cases, in order for this Court to make a finding of undue leniency the sentence imposed must fall outside the available range. 12. As is to be expected, the evidence before the sentencing court was that this incident has had a very serious impact on the complainant but also on her son. In the aftermath of the incident, the complainant and her family felt it necessary to move from Dublin and the result of this was that her son was cut off from the company of Chinese friends. In his new location he had no such friends. The complainant’s victim impact report stated that since the incident she was very protective of her son and her new baby. Her son was then seven years of age but still slept with her because she would not want to let him out of her sight. 13. In terms of the accused’s background and circumstances, he was born on 14th December, 1970. The sentencing court heard that he had 20 previous convictions summarised as follows:- (i) The most recent had been on 20th July, 2011 at Mullingar Circuit Court for burglary when he received a three year prison sentence. (ii) On 18th February, 2010 at Cork City Circuit Court he was sentenced to 2 years for s. 4 theft. (iii) Again at Cork City Circuit Court on 21st October, 2003 under s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, he was sentenced to seven years with two suspended. (iv) On 20th October, 2003, once more at Cork Circuit Court, for carrying a firearm with criminal intent he was sentenced to three years imprisonment. (v) On 28th October, 2003 in Cork in relation to a robbery he was sentenced to seven years with two suspended. (vi) On 11th June, 1999 in Cork City Circuit Court he was sentenced to eight years in respect of assault with intent to rob, possession of an imitation firearm and robbery. (vii) On 20th June, 1995 at Dublin Circuit Court he was sentenced to two years in respect of an assault. (viii) On 10th February, 1993, Cork Circuit Court, on two counts of robberies and firearms matters sentenced to ten years. (ix) On 7th December, 1992 he was sentenced to one year and 11 months in respect of two counts of burglary and four counts of larceny. (x) On 14th March, 1989 in Limerick he was sentenced to 2 years for burglary and again in Limerick on 16th February, 1989 sentenced to 11 months in respect of burglary. (xi) On 12th February, 1988 at Limerick Circuit Criminal Court in relation to the offence of aggravated burglary he received a sentence of five years. 14. It will be immediately apparent that the respondent has an appalling record, having served many substantial sentences in respect of serious offences, many involving violence. It is, however, the case that none of his recorded convictions are for sexual offences as such. 15. It is simply to state the obvious to say that this was an offence of the utmost seriousness and an offence that clearly falls within the most serious category of rape cases, involving multiple aggravating factors. These include, but are not limited to:- a) The fact that the respondent, by deception, lured the complainant into an apartment where she was falsely imprisoned for more than 13 hours. b) The abduction occurred at a time when she was looking after her four year old son, walking him home from play school. c) The assaults on the complainant were sustained over the full course of the 13 hours, the only exception being the relatively brief period when the defendant left the apartment to take the complainant’s young son and abandon him in the Smithfield area. The removal of the complainant’s four year old son and then abandoning him in the city centre naturally caused the complainant considerable anguish when she realised what had happened. d) The respondent not only threatened to take the life of the complainant but also threatened to kill her young son if she did not engage in sexual relations with him. Naturally, given the behaviour of the respondent these threats were taken very seriously indeed by the complainant. e) A number of ties and restraints were used by the respondent on the complainant. f) Significant violence was directed against the complainant in this incident as a result of which she sustained injuries. g) During the incident the complainant was forced to take drugs which made her drowsy. h) The respondent forced the complainant to engage in humiliating and degrading treatment including forcing her to dress in different clothing and a number of objects were used to penetrate the complainant’s vagina and anus. i) At the end of this ordeal, the respondent left the complainant bound and gagged in the apartment from which she eventually freed herself. 16. The cases referred to earlier in the course of this judgment, including the case of Tiernan , indicate that a sentence in the range of 20 to 21 years is appropriate absent mitigation. The Court agrees with the assessment of the trial judge that there was absolutely no mitigation here. A sentence of 15 years imprisonment is obviously a significant sentence but in the Court’s view, the combination of the appalling nature of the offence, the accused’s very significant prior record and the complete absence of mitigation meant that the sentence was inadequate and inadequate to a significant extent. In the Court’s view, a sentence of 20 or 21 years would have been the appropriate one. On quite a number of occasions when intervening in relation to sentence following requests to review on grounds of undue leniency, the Court has indicated that it would impose a sentence less than it would have been minded to do if sentencing at first instance. This is to give effect to what is sometimes referred to elsewhere in the common law world as “double jeopardy”, the recognition of the fact that to be sentenced a second time and to have the sentence that one was serving increased must be difficult. Frequently, the Court is being asked to resentence at a time when a significant portion of the sentence has already been served and the initial release date is in sight. Cases where the respondents to the undue leniency review application have been released from custody can prove particularly difficult. These issues do not arise to the same extent in the present case as this respondent remains in custody. 17. The written submissions on behalf of the respondent have twice referred to the significant passage of time since the sentence hearing in the Central Criminal Court. The time that has passed is not at all the fault of the Director of Public Prosecutions whose notice of application is dated 13th November, 2013. Moreover, the DPP has been pressing to get the application on, even urging that the Court would depart from its normal practice and hear the application for review of sentence before dealing with the appeal against conviction. The Court therefore feels that the passage of time and the fact that a sentence is being increased is not a particularly significant issue in this case. Nevertheless, the Court will give some limited recognition to the issue and will do so by imposing a sentence marginally less than it would have imposed had it been sentencing at first instance. 18. Had this Court been sentencing at first instance, the sentence would have been 20 years or perhaps 21 years. The Court will deal with the matter today by setting aside the sentence of the Central Criminal Court and substituting a sentence of 19 years imprisonment for the sentence of 15 years to date from the same day as the sentence in the court below being 15th February, 2010. 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