Supreme Court clarifies sentencing rules in historic sexual assault cases

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James Maher had pled guilty in 2012 to 5 counts of indecent assault contrary to common law in relation to a boy, and to a further 14 counts of indecent assault on another boy, all of which occurred between 1982 and 1984.

At the time relevant to the offences the maximum penalty was 10 years’ imprisonment by virtue of section 62 of the Offences Against the Person Act 1861.

However, the prosecution argued that the Circuit Court was erroneously informed by the prosecution that the effect of S(M) v. Ireland & Ors (No.2) 4 I.R. 369 was that the offence attracted a maximum penalty of two years on each count.

The Circuit Court sentenced the respondent to two years’ imprisonment on all counts, to run concurrently.

The prosecution applied to the Court of Appeal under section 2 of the Criminal Justice Act 1993, for a review of the sentences on the grounds that they were unduly lenient.

The Court of Appeal held that the Circuit Court judge had not been in error but that the sentence was unduly lenient and that some element of consecutive sentences should have been applied. It therefore altered the sentence on Count 27 to one year consecutive on the expiry of the two year concurrent sentences on the other counts so that the total sentence became three years.

The prosecution remained unsatisfied with this result and was granted leave to appeal on the grounds that the case involved a point of law of general public importance.

The Supreme Court first considered the statutory provisions. It was explained that under the 1861 Act, indecent assaults upon a male would attract a sentence of up to ten years’ imprisonment whereas indecent assaults upon females would attract a sentence of two years.

It appeared that the heavier sentence for indecent assault upon a male reflected the Victorian condemnation of both indecent assault, and male homosexuality.

The apparent inconsistency between the punishment for indecent assault upon a female and that upon a male, was sought to be addressed by the Criminal Law (Rape) Act 1981, which equalized the penalties.

However, it did so by separate legislation, meaning that the legal provisions were separate but equal.

In 1990, the Criminal Law (Rape) (Amendment) Act renamed the offence of indecent assault as sexual assault. It is clear however that the underlying offence remained in existence. The penalty was reduced from ten to five years, however the Sex Offenders Act 2001 reinstated the general sentence of ten years.

Thus, between 1861 and 1981, a differential penalty applied. The Supreme Court noted that this had had implications for the recent phenomenon of the discovery and prosecution of historical sex abuse claims.

The issue was considered in the S(M) (No.2), when Laffoy J held that the differentiation in penalties breached Article 40.1 of the Constitution.

Laffoy J concluded that a court could not, consistent with the constitutional guarantee of equality, impose a sentence for indecent assault upon a male, greater than that which had applied at the relevant time in respect of indecent assault committed on a female.

The Supreme Court found that it could be said that in the light of the declaration made by Laffoy J, that the common law power of sentencing for the common law offence of indecent assault, when carried out upon a male person, was limited by the maximum sentence for the equivalent sentence “available at the time of the offence for indecent assault upon a female”.

The fundamental question for the Supreme Court related to offences alleged to have occurred after 1981, when the sentence for sexual assault upon a female had been increased to 10 years’ imprisonment.

Both the text and logic of the decision in S(M) (No.2) might suggest that in such circumstances the maximum penalty which could be imposed at common law, would have been 10 years— since that was the statutory limit imposed in respect of sexual assault upon a female and the principle of equality pursuant to Article 40.1 required that the offence of indecent assault upon a male be treated in the same fashion.

The prosecution contended that since the unconstitutionality was relative rather than absolute: it followed, that once the maximum sentence for sexual assault upon a female became 10 years’ imprisonment, the same sentence could be given in respect of the remaining common law offence of sexual assault upon a male.

The respondent contended that the Circuit Court and the Court of Appeal, were right to conclude that the maximum sentence for indecent assaults committed in males between 1981 and 1990 remained at two years as that was fixed by the decision in S(M) (No.2) and could not be altered by the coming into force of a separate statutory provision dealing with assaults on females.

Delivering the judgment, O’Donnell J observed that he did “not see any reason why the Constitution must be deployed as a bludgeon when it is capable of being used as a scalpel.”

The logic of the declaration made by the High Court in S(M) (No.2) was that the power of sentence for a common law offence of indecent assault was unlimited, but the constitutional guarantee of equality meant that an indecent assault upon a male could not attract a higher sentence of common law, than the maximum available by statute, for indecent assault committed on a female.

Thus, when the penalty for such assault upon a female was increased in 1981, considerations of equality did not, and arguably could not, require that the maximum penalty for indecent assault upon a male remain at two years’ imprisonment.

The Supreme Court therefore reversed the decision of the Court of Appeal in this regard.

In relation to specific sentences, the Court found that the question of the appropriate sentence for any indecent assault or sexual assault in any particular case, is a matter for sentencing courts, which may be reviewed if appropriate by the Court of Appeal.

In the present case, nothing in the facts suggested that justice required the Court to proceed to impose its own sentence upon the respondent. That aspect of the appeal was therefore dismissed.