Justice denied
SENTENCING criminals is not just a matter of mathematics: Three years for this offence, 10 years for that... and so on.
Yet there are times when mathematics can illuminate absurdity in both the structure and the application of our criminal justice system.
On Tuesday, Mr Justice Paul Carney suspended the last nine years of a 12-year sentence imposed on rapist Patrick O’Brien while, at the same time, categorising his conduct as one of the most serious cases of serial rape of a daughter.
O’Brien had pleaded guilty to abusing his daughter, Fiona Doyle, for 10 years. Fiona told the court that the abuse was as regular in the house “as having dinner”.
On the same day, in a separate case in Dublin, Judge Patricia Ryan jailed a former Irish Army soldier for three and a half years for the sexual abuse of two boys during the 1990s. None of it was suspended.
In sentencing, Judge Ryan stressed the maximum she could impose by law was five years. Maybe it should be more, but that was all she had to work with.
Public policy demanded that she take two mitigating factors into account — the man’s guilty plea and the absence of any previous convictions. There was also a compassionate element in that the perpetrator has a serious medical condition.
The result was that she gave the offender 70% of the total sentence possible. That seems fair and reasonable, given the context.
Again on the same day, at Balbriggan court, a man who followed a woman and slapped her on her bottom “to get a thrill” was jailed for eight months — again, none of it suspended. That represented 13.3% of the total possible, again not unreasonable, given the relatively mild nature of a first-time offence and the fact that any denial of liberty is a serious sentence.
If both these decisions can be understood as reasonable by the lay person, what of Judge Carney’s sentence? In 2007, Mr Justice Peter Charleton conducted a survey of sentences for rape in Ireland and Britain to draw together principles which have been generally followed since.
He conducted an analysis on sentencing after the outrage that followed the decision by a fellow judge to suspend the jail term of Adam Keane, who broke into a house in Ennis, Co Clare, and raped a mother in her bed.
The judge in question? Paul Carney.
Charleton’s review outlined four levels of severity, starting with cases where the victims urged leniency or where they had initially consented to sex and later changed their minds. These could include non-custodial sentences.
At the next level were cases of a rape committed on an adult where the jail terms generally started at five years, rising to eight where two or more men acted together, where there was a break-in or an abduction, or where it was committed by a person in a position of authority.
Perpetrators who had previous convictions, or where there was unusual violence, could expect terms of between nine and 15 years; where gang rapes or multiple victims were involved, the sentence could amount to life imprisonment. Child rapists were nearly always seen as meriting the most severe prison sentences.
A life sentence is rare, but it does happen, even when the perpetrator is elderly. In Oct 2010, a man who sexually abused three of his young children was sentenced to life imprisonment at the Central Criminal Court in Dublin.
Mr Justice George Birmingham said the depictions of the 73-year-old (now 75) as a “monster” who reigned in “the home from hell” were more than warranted.
That is something Fiona Doyle will recognise. Her father, now aged 72, raped her every night that her mother went out to play bingo. Her mother played bingo once a week so that represented around 520 rapes — each one a separate offence that can attract a sentence of life imprisonment.
A life sentence in Ireland usually means serving between 15 and 25 years. If we split the difference, that means that O’Brien will serve in the region of 13% of the sentence that could have been imposed. If he had been convicted of all the rapes separately, his time served will be less than 0.00003% of the total.
In the meantime, his daughter has suffered her life sentence, raped by her father since the age of seven and hounded and bullied by both parents for the past 23 years since she brought the horror to light.
Rape Crisis Network Ireland director Fiona Neary said anyone who cared about the sexual abuse of children would be very concerned at the sentence.
The chairwoman of the Dublin Rape Crisis Centre described the decision to suspend the majority of O’Brien’s sentence as “absolutely mystifying”. “It beggars belief,” said Ellen O’Malley-Dunlop, adding that it does not give a positive message to others who had courageously reported heinous crime.
It is hard to know whether Judge Carney will take those comments on board in future cases. During the course of O’Brien’s trial, he exhibited greater sensitivity towards his own public persona and the decorum of his court than the concerns of Fiona Doyle’s supporters.
At one stage, he declared: “If I impose a serious custodial sentence and suspend it, it will go out in sound-bites, as these things do, that in one of the most serious cases of serial rape of a daughter, the man walked. That is all the community will be told.
“On the other side, if I impose a heavy sentence unsuspended, I will be branded as a trial judge who substituted one injustice for another. I am trying to strike a balance.”
When Ms Doyle finished reading out her victim impact statement, there was a short round of applause from a large number of supporters in court. Mr Justice Carney immediately asked those who had applauded to leave the court, and a number of people left.
He later said he didn’t like what he described as an “orchestrated situation of cheerleaders being brought into court at the appropriate time”. He said if there was any more cheerleading it would be treated as contempt of court.
Had that happened, he could have immediately imprisoned any of those responsible. Any judge who considers someone has committed contempt of court can order that person’s internment without trial for an indefinite period.
Some of Carney’s pronouncements have been fascinating, to say the least. Before delivering his sentence, he demanded to know whether the office of the DPP would “stand over” a custodial sentence of O’Brien. And he claimed he had been horrified when a previous DPP “went behind my back” in another case to express indifference about whether a custodial sentence be served or not.
Carney sought to explain his sentencing decision as follows:
nO’Brien is in poor health and needs constant monitoring.
It is hard to image many institutions other than prison where you find 24-7 monitoring. During the course of the trial, Frances Nangle, director of nursing services with the Irish Prison Service, said the service had managed patients with similar conditions and that the level of care available would be as good as that in the general community.
nO’Brien has been “of good behaviour”.
Maybe he hasn’t nicked any cars or robbed any banks, but try explaining that to his daughter.
nO’Brien’s age.
Not a barrier, as Mr Justice George Birmingham concluded in sentencing a 73-year-old to life imprisonment, as noted above.
It seems that, every now and then, there is a public outcry over what is perceived as an unduly light sentence imposed on a rapist. That cannot — and is not — down to one judge. Others have done likewise, which raises the question of why we do not have a proper, reliable guide for the judiciary to follow in such circumstances.
The powers-that-be could do worse than peruse a survey on rape sentencing conducted in 2008. Most of those surveyed felt convicted rapists should spend at least six years in jail. The Irish Examiner/ Red C poll also revealed almost two-fifths (39%) of respondents feel a life sentence is the most appropriate punishment for a rapist.
However, as Conor Ryan reported, less than half agreed with the sentencing framework laid out by Mr Justice Charleton, and 38% considered a six- to 10-year term should be handed down. In every age category, men demanded stricter punishments than women.
Ireland has one of Europe’s highest rates for rape cases collapsing, according to the Dublin Rape Crisis Centre, and they say that one of the main reasons for this high fallout rate is because complainants decide not to put themselves through what they regard as a “revictimising experience”.
In February last year, a pregnant woman who alleged that she was gang-raped was arrested and temporarily imprisoned after refusing to give evidence against the three men accused of assaulting her. The woman, from eastern Europe, was told by Mr Justice Carney to stand directly in front of the accused and point out her alleged assailants.
When she failed to appear in court the next day, Carney issued a warrant for her arrest, indicating that there could be a retrial. He said: “If she has to spend a long time in prison herself waiting for a retrial that’s her fault.”
His sentence in the O’Brien case and his decision to grant him bail pending an appeal adds further to Fiona Doyle’s immeasurable pain.
Outside the courthouse, she said: “He raped me for 10 years and he walks out of her today. I feel like the system has done it to me, too.”
Who could blame her for feeling that way? The man who raped you more than 500 times gets a sentence that, in percentage terms, is the same as a bottom-slapper.
Where is the fairness in that? He then gets to walk out the door, on continuing bail, pending an appeal that could take years.
Where is the justice in that?
CIARA CONWAY
“I find it hard to reconcile the statements of the judge when he said he never came across such a disturbing case of abuse but then gave such a lenient sentence,” says Ciara Conway, Labour TD for Waterford.
“Patrick O’Brien admitted guilt and then walked away and that is the thing that people just can’t understand. The judge talked about his age. But what about how young this girl was when she was abused? I don’t think the perpetrator’s age should be an issue when such heinous crimes are committed against a child.
“Sentencing needs to take into account the far reaching implications of sex crimes on the lives of the victims. Crimes of this nature affect every development path of the victim in terms of the whole quality of their life.
“Fiona Doyle was such a brave woman to bring this case. There are so many cases in this country that never make it to court, never reach outside somebody’s sitting room, or outside the duty office of a social worker.
“Of course, as the Taoiseach says, we hope the sentence won’t prevent people from coming forward. But we know that it will and we have to be realistic about that.”
— Mary Regan
SENATOR AVERIL POWER
“I was disgusted to see him walk free from the court after having admitted to raping his daughter for 10 years,” said Senator Averil Power. “It was not just a shocking injustice to Fiona herself, but an indictment of our system for dealing with sexual offences.
“We already have one of the lowest conviction rates in the EU for sex crimes, and this sends out a bad message to other victims.
“I was surprised when I saw the comments from Justice Carney that imposing a heavy sentence would be seen as replacing one injustice with another. I can’t agree with that.
“In this case, Patrick O’Brien showed no regard for his daughter’s age when he raped her.
“I know the Court of Criminal Appeal overturned Justice Carney’s sentence in an earlier case because he had not taken age into account.
“If that is an issue, then we need to look at guidelines and see what weight should be given to the age of the perpetrator when handing out sentences.
“Personally, I think we should have a minimum sentence for sexual crimes and we should bring groups like the Rape Crisis Network into an Oireachtas committee to hear their views on this.
“We should also look at laws to prevent sex abusers from paying compensation instead of serving a custodial sentence. There were two cases in the last six months where sexual attackers were able to pay their way out of court. This might be appropriate for something like theft, but is not appropriate for sexual crimes.”
— Mary Regan
NORAH CASEY
Norah Casey says she could comment on the ruling in the Fiona Doyle case as a publisher, broadcaster, or woman, but her view would be exactly the same: “I am almost ashamed of things that we do in this country on these issues.”
The Newstalk Breakfast and RTÉ Today presenter said she had monitored the “heinous case” as it passed through the courts and was aghast at the decision of Mr Justice Paul Carney.
On Fiona Doyle, the victim, she said she had shown “courage and bravery” in coming forward and waiving her anonymity, coming as it did after two suicide attempts, a broken marriage, and plastic surgery, which she told the court was an attempt at self-mutilation.
“This case is not unusual but it is unusual that she spoke out,” said Ms Casey. “Then to see how justice was done to her... The message it sends out loud and clear was this was an unduly lenient sentence.”
She raised the previous custodial sentence handed down to the importer of garlic, as well as the case in which a man had most of his sentence suspended and ordered to pay €75,000 compensation to the victim.
“I think the justice system here needs to be overhauled,” she said. “We are still sending the message out that it’s not quite that it’s OK, but if you are sorry and ill you deserve leniency.”
She also queried whether judges now live in an environment “so far removed” from many victims of crime that they do not see the wider impact on society of their sentencing.
— Noel Baker
MARY O’ROURKE
As a former minister in a number of portfolios, Mary O’Rourke said she was reluctant to pass comment on the actions of judges who, after all, are an arm of the State.
But on this occasion, she said, she does have a personal opinion.
“Normally I would never comment on judges’ decisions but I am quite horrified,” she said. “I understand that age and health are two of the sort of clauses under which a judge can look at a case, but I am very horrified that that young person came forward, gave up her anonymity, spoke up, and this is the result.
“I certainly feel that many people who have mentioned the matter to me today are puzzled and distraught.
“They are expressing great puzzlement and upset at the way it has turned out.”
As a former minister for health, education, and public enterprise, Ms O’Rourke has seen much over the years and more recently has published her autobiography and even turned her hand at being an “agony aunt”.
However, she admitted the decision by Mr Justice Paul Carney had taken her aback, even though she said she did not want to discuss the “minutiae” of the case and the reasons as to why Patrick O’Brien received the length of sentence he did, or what factors were at play in the decision to grant him bail. But she said: “When I saw it on the nine o’clock news, I was stunned.”
— Noel Baker
ANDREW MADDEN
Abuse victim Andrew Madden said Monday’s court ruling was “one of a long list of cases, especially in areas of sexual violence, where the sentences seem to be on the lower side”.
“The first issue is that, of the 12 years [Patrick O’Brien] was sentenced to, the last nine were suspended — that is quite extraordinary. On top of that, he was given bail.
“Really, people are sick and tired of listening to excuses, of judges passing sentences because they are mindful of what the Court of Criminal Appeal might do.
“Very few people get a trial and get a conviction, so [Fiona Doyle] is already in a small minority and, after being that successful, the man walks free.
“There are worrying consequences for people reporting abuse and pursuing cases.”
He said while Mr Justice Paul Carney is high-profile due to the number of cases he rules on, other judges have passed sentences many believed to be too low and said either the judiciary needed “upskilling” or legislation needed to be firmer.
Mr Madden said the Prison Service had said it had no issue in catering for a prisoner of O’Brien’s age, but the judge placed “undue weight on the man’s age and health”.
“[Mr Justice Carney] is obliged to take account of previous rulings [by the Court of Criminal Appeal] but there is something to be said for judges making their own determinations,” he said.
— Noel Baker
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