Supreme Court: Man convicted of abusing young girls in the 1990s walks free with 3 years served

About this case:

• Judgment:
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The man brought an appeal against the four-year sentence after his prior conviction for rape and other serious offences against another young girl was quashed.

Given that on appeal the man now had no prior convictions, and that the man had served three years’ imprisonment, the Supreme Court ruled it had “no option but to deem that sentence as having been served”.

Background

In July 2011, Mr Maurice Colbert was convicted and sentenced in the Dublin Circuit Court for a series of sexual assaults committed against a young girl (Victim A) in relation to whom he was in a position of authority between 1991 and 1995 when the girl was between the ages of 7 and 12. The relevant maximum sentence for sexual assault at this time was 5-years imprisonment, and Mr Colbert was sentenced to 4-years.

At the time of his sentencing for assault against Victim A, Mr Colbert possessed a prior conviction for rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and other offences committed against another young girl (Victim B), and was serving 8-years imprisonment for this crime.

By the time the appeal against his 4-year sentence for this series of predatory sexual abuse crimes on Victim A came up for hearing before the Court of Criminal Appeal in 2013, that Court had quashed his conviction relating to Victim B, thus rendering him a person with no prior convictions.

In delivering their judgment of the Supreme Court, Mr Justice Peter Charleton and Ms Justice Iseult O’Malley said that “the Court of Criminal Appeal apparently felt bound by the state of affairs as of the date of the sentencing in 2011” in ruling that there was no error in principle and that the trial judge was acting within the area of discretion in acting in the manner which she did and accordingly the Court did not consider it proper to interfere with the sentence.

Under section 29 of the Courts of Justice Act 1924 as substituted by section 22 of the Criminal Justice Act 2006, the Court of Criminal Appeal dismissed the appeal of Mr Colbert against his 4-year sentence for 10 counts of sexual violence committed against Victim A.

Exceptional public importance

In dismissing the appeal, Court certified the following as points of law of exceptional public importance that it would be desirable in the public interest to be taken as an appeal to the Supreme Court:

Justices Charleton and O’Malley summarised “the real issue” arising from the questions as “when he was sentenced, he had a serious record of offending directly relevant to determining the appropriate sentence whereas on appeal, he had no prior conviction” – therefor was the Court of Criminal Appeal obliged to take that change into account?

The Supreme Court

The Court emphasised that these were very serious offences which blighted the life of a young schoolgirl over a period of around 4 years, and that this was clearly a series of offences which could and should have attracted a penalty at the upper end of the sentencing band and where a maximum sentence would not have been wrong in principle in the context of the order made by the sentencing judge that all sentences were to be served concurrently.

Since the time of the relevant offences, the sentencing bands have been increased through legislative intervention and most recently, s. 37 of the Sex Offenders Act 2001 amends s.2(2) of the Criminal Law (Rape) (Amendment) Act 1990 and makes a potential sentence for the offence of sexual assault on a child 14-years imprisonment.

That being said, it was significant that in this instance, the time spent in custody was directly referable to this case and “when the offences in respect of victim B were later quashed, it would have been appropriate to have regard to the time spent in custody on the surrender of bail as being exclusively referable to these offences committed against victim A”.

In considering an appropriate sentence, the Supreme Court found that due to the gravity of the series of offences, notwithstanding the alteration in the record, “no error in principle” could be found in the sentence actually imposed.

At that time, the accused had a serious and directly relevant prior conviction. The situation in the Court of Criminal Appeal was different; by that point the prior rape conviction had been quashed.

Despite the fact that the conviction on prior offences had been removed from the record between the time of sentence and appeal, the Supreme Court ruled that it “would not propose to interfere with that sentence given the gravity of these offences and the marked impact which the chain of abuse had on the life of the victim”.

The Supreme Court ordered that commencement of custody should be backdated to the date of surrender of bail on the conviction once recorded in respect of victim B, which was 5th February 2010.

Having regard to the fact that Mr Colbert was released on bail 3 years later in February 2013, and taking into account the 25% standard remission for prisoners of good behaviour, the Supreme Court found that it had “no option but to deem that sentence as having been served” and therefore allowed Mr Colbert’s appeal.