7 judge Court will hear argument re correct sentence for indecent assault against a male (1981-1991)

Inside the Supreme CourtOn Tuesday, 2nd February, a seven judge panel will hear argument in the DPP’s appeal against the Court of Appeal’s decision in DPP v Maher (here). The DPP is appealing against the COA’s legal reasoning that led it to conclude that two years imprisonment was the maximum sentence permissible for the offence of indecent assault against a male between the years 1981 and 1991. At the time, a term of up to ten years was permitted for the offence of indecent assault against a female.

Legal History

  • The Offences against the Person Act 1861 (s 61) provided for imprisonment not exceeding ten years for indecent assault against a male.
  • The Criminal Law Amendment Act 1935 provided for imprisonment not exceeding two years for indecent assault against a female (first offence).
  • The Criminal Law (Rape) Act 1981 raised the penalty for indecent assault against a female to a term not exceeding ten years.
  • The Criminal Law (Rape) (Amendment) Act 1990 replaced the offence of indecent assault with one of sexual assault (male of female) and provided for a term of imprisonment not exceeding five years.
  • In DPP v SM (No 2) [2007] 4 IR 369 (High Court) Laffoy J held that s 61 0f the 1861 Act did not survive the enactment of the Constitution in 1937 because of the disparity between the penalty for indecent assault against a male and the penalty for the same offence against a female. She held that it offended against the guarantee of equality provided under Article 40.1 of the Constitution. The Defendant in that case was charged with numerous counts of indecent assault against young males committed between 1966 and 1976. Laffoy J held that, if he was convicted, he should not receive a sentence greater than if the offences were committed against females (two years, at that time).

Background

In 2012, Maher pleaded guilty to 19 counts of indecent assault against young males between 1982 and 1984. At the time, the maximum term of imprisonment for indecent assault against a female had been increased to ten years. However, the trial judge held that (following DPP v SM) the maximum sentence permitted for indecent assault against a male was two years. The trial judge sentenced Maher to two years for each offence to run concurrently. The DPP appealed the leniency of that sentence to the COA.

Court of Appeal

The COA reasoned that, following DPP v SM, from the time of the enactment of the 1937 Constitution the maximum term permissible for indecent assault against a male was two years (same as against a female). Although the Criminal Law (Rape) Act 1981 increased the maximum permissible term to ten years for an offence committed against a female, it did not increase the maximum term for indecent assault committed against a male. Amending the sentence that a one year term for one of the offences would run consecutively (increasing the overall term to three years), it upheld the High Court finding that two years was the maximum permissible sentence for the offence against a male.

Supreme Court

The DPP sought an order from the Supreme Court certifying that the case raised an issue of general public importance justifying an appeal to the Supreme Court. The DPP argued in her submission that the Court of Appeal misapplied DPP v SM. The decision in that case did not limit the penalty for indecent assault against a male to a maximum term of two years, it provided that sentencing was subject to common law guidelines but  limited to the maximum statutory term that could be imposed for indecent assault against a female. Therefore, subsequent to the 1981 Act, the imposition of a penalty for indecent assault against a male was subject to common law guidelines but could not exceed the statutory maximum term of ten years applicable for indecent assault against a female.

In its determination (here), the Court held that, as the issued raised would likely arise in other cases concerning offences committed between 1981 and 1991, the DPP had satisfied the requirements of Article 34 of the Constitution and granted an order allowing an appeal relating to the correct sentencing guidelines for the offence of indecent assault committed against a male between June 1981 and January 1991.

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