DPP v Maher: Court rules on sentencing rules for historical cases of sexual offences

Prisoner+in+jail+cell+prison1Here, the Supreme Court allowed the DPP’s appeal against the High Court’s and Court of Appeal’s interpretation of the sentencing rules for historical cases of sexual assault (1981-1991). The Court held that, subsequent to S(M) v Ireland & Ors (No.2) [2007] 4 IR 369, which declared that s 61 of the  Offences against the Person Act 1861 (sentencing limit for sexual assault against a male) was unconstitutional, the courts’ common law power to sentence offenders (male or female) for sexual assault against a male was unlimited except to the maximum sentence permitted by statute, at the time, for the same offence against a female.

Legal History

  • The Offences against the Person Act 1861 (s 61) limited the term of imprisonment for the common law offence of indecent assault against a male to ten years.
  • The Criminal Law Amendment Act 1935 limited the term of imprisonment for indecent assault against a female to two years (first offence).
  • The Criminal Law (Rape) Act 1981 raised the limit on the term of imprisonment for indecent assault against a female to 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 Court of Appeal 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 argued that the High Court and the Court of Appeal had misinterpreted the decision in DPP v SM: the declaration of unconstitutionality was relative, not absolute. That the courts’ unlimited common law power to sentence was restricted to two years only while the two year statutory limit on sentencing for the same offence against a female remained in place; once that statutory limit was increased to ten years so too did the courts’ power to sentence for sexual assault against a male increase to ten years.

The Court took guidance from Tom O’Malley, Sexual Offences, 2nd Ed (Dublin, 2013) 4.04:

At this point it may be convenient to summarise the maximum sentences that have attached to indecent assault offences from 1861 onwards. From that date until 1935, the maximum sentence for indecent assault upon a male and indecent assault upon a female, were respectively, 10 years’ and two years’ imprisonment. (Any reference to penal servitude in older statutes may now be ignored, as the Criminal Law Act 1997 transformed all remaining terms of penal servitude into terms of imprisonment). From 1935 to 1981, the maximum sentence for indecent assault on a female was two years’ imprisonment on a first conviction and five years on a second or subsequent conviction. By virtue of the High Court decision in M. (S.) v Ireland, the maximum sentence for indecent assault on a male committed during this period must be treated as the same as that for indecent assault on a female even if, on paper, it remained at 10 years’ imprisonment. On the entry into force in June 1981 of the s.10 of the Criminal Law (Rape) Act 1981, the maximum sentence for indecent assault on a female was raised to 10 years’ imprisonment, and, for the reasons indicated earlier, it may be assumed that an indecent assault upon a male committed between that date and January 1991, when the Criminal Law (Rape) (Amendment) Act 1990 entered into force, could also attract 10 years’ imprisonment. The Act of 1990 (s.2) renamed the two former indecent assault offences as sexual assault, a gender-neutral offence, with a maximum sentence of five years’ imprisonment.

O’Donnell J, writing for a unanimous six judge panel (Hardiman J also sat on the panel which heard this case), agreed with the DPP’s argument and allowed the appeal. In fact, he stated that to follow the Court of Appeal’s interpretation would raise interesting issues of the effect of time on issues of constitutionality: although s 61 of the 1861 Act was declared unconstitutional prior to sentencing in this case, it was not an argument that Maher could have raised as there was no inequality in statutory sentencing guidelines at the time he committed his offences [13].

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