Judgment
Title: | Director of Public Prosecutions -v- Colbert |
Neutral Citation: | [2016] IESC 69 |
Supreme Court Record Number: | 348/2013 |
Court of Appeal Record Number: | CCA 2011 204 |
Court of Criminal Appeal Record Number: | CCA 2011 204 |
Date of Delivery: | 11/28/2016 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., O'Donnell Donal J., Clarke J., Charleton J., O'Malley J. |
Judgment by: | Charleton J. & O'Malley J. |
Status: | Approved |
Result: | Appeal allowed |
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| Judgments by | Link to Judgment | Concurring | O'Donnell Donal J. | | Denham C.J., Clarke J., Charleton J., O'Malley J. | Charleton J. & O'Malley J. | | Denham C.J., O'Donnell Donal J., Clarke J. | |
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An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: 2013 No 000348
Court of Criminal Appeal record number: 2011 No 204
Bill number: 1263A/07 Dublin Circuit Criminal Court
[2016] IESC 000
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
Appellant
Judgment of Mr Justice Peter Charleton and Ms Justice Iseult O’Malley, delivered on the 28th day of November 2016
1. By order dated 15th July 2013, 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, MacMenamin, de Valera and Hanna JJ, dismissed the appeal of Maurice Colbert against his 4 year sentence for 10 counts of sexual violence committed against a young girl, here called victim A. These sentences were to be served concurrently. In dismissing the appeal, that 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 this Court:
(1) Whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody by the appellant for a conviction subsequently quashed, and
(2) whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody on remand by the appellant even where he was at the same time serving a sentence for a previous conviction subsequently quashed.
2. In hearing this appeal, this Court is applying the powers contained in s. 3 of the Criminal Procedure Act 1993. This provision governs the jurisdiction of the Court of Criminal Appeal in relation to appeals. Under section 3(1), “On the hearing of an appeal against conviction of an offence the Court may” decide to “affirm the conviction”, or to quash it while making no further order or order a retrial, or, under s. 3(2), to “quash the sentence and in place of it impose such sentence or make such order as it considers appropriate”, which may be “a sentence or order which could have been imposed on the convicted person for the offence at the court of trial.” While the appeal of Maurice Colbert started out as one as against his conviction and sentence, by the time of the hearing in the Court of Criminal Appeal the conviction appeal had been abandoned. In general, the Court of Criminal Appeal, under section 34 of the Courts of Justice Act 1924 has these powers:
The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.
3. A brief summary of the facts should suffice to provide a context for the issues on this appeal. Maurice Colbert was initially convicted and sentenced in the Dublin Circuit Court by Judge Yvonne Murphy for a series of sexual assaults committed against victim A. At that time,, he possessed a prior conviction for rape and other offences committed against another young girl, victim B, and was serving 8 years imprisonment for this crime. He was sentenced by Judge Murphy on that basis. 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, that Court had quashed his conviction relating to victim B, thus rendering him a person with no prior convictions. Was the Court of Criminal Appeal obliged to take that change into account? To put it simply, 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. This is the real issue that arises from the questions certified. The Court of Criminal Appeal in their judgment on the sentence appeal of 15th July 2013 apparently felt bound by the state of affairs as of the date of the sentencing by Judge Murphy and ruled 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 does not consider it can interfere with the sentence”.
Chronology
4. The proper approach of an appellate court to the issue which arose is best seen in the context of a chronology concerned with the offences and the various steps in the criminal process that were taken.
• 23rd June 2005: victim A makes a statement to gardaí concerning the activities of Maurice Colbert and his sexual assault violence towards her as a child. Around this time another woman, victim B, makes similar complaints which also involved rape. Charges relating to victim B proceeded first, while the appellant was on bail in relation to the complaints by victim A.
• 5th February 2010: Maurice Colbert is convicted of a series of offences involving rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and sexual assault on victim B. The trial which resulted in those convictions was a retrial as a prior jury had failed to agree a verdict in April 2008. He was then sentenced to 8 years imprisonment. During those trials, he was on bail in respect of the offences relating to victim A. He immediately surrendered his bail on those charges and went into custody.
• 15th July 2011: Maurice Colbert is convicted of the 10 counts of sexual assault relevant to this appeal on victim A. This was the second trial, a prior jury having disagreed.
• 28th July 2011: a plea in mitigation is heard and Judge Yvonne Murphy sentences Maurice Colbert to 4 years imprisonment on each of the 10 counts against victim A, all to run concurrently. She refers to the prior conviction for the offences against victim B in her sentencing remarks. The sentence commences as of the day of conviction, the 15th July 2011.
• 20th October 2011: the Court of Criminal Appeal quashes the conviction on the rape and other offences against victim B for which Maurice Colbert was serving 8 years imprisonment.
• 28th August 2012: while a retrial for the offences against victim B was pending, that victim had written to the Director of Public Prosecutions stating that because of the trauma the two prior trials had inflicted on her and on her family she did not want to have to give evidence again. She says that the “previous trials have taken too much out of me physically and mentally and I now want to get on with my life with my partner and two children”.
• 15th October 2012: a nolle prosequi is thus entered in respect of all the charges related to victim B.
• 30th November 2012: whereas the appeal by Maurice Colbert in respect of the sexual assaults on victim A had been in respect of both conviction and sentence, his solicitors told the Court of Criminal Appeal that only a sentence appeal in respect of the 4 year sentence was now being pursued.
• 24th January 2013: a motion is issued on behalf of Maurice Colbert to admit new evidence before the Court of Criminal Appeal, which is the quashing of the conviction for the rape and other offences on victim B.
• 4th February 2013: a bail application is made by Maurice Colbert stating that if his sentence was to run from when he first went into custody for the quashed offences in respect of victim B, 5th February 2010, his sentence of 4 years in respect of victim A would expire on that day. The Court of Criminal Appeal grants him bail. This has persisted to date.
• 15th July 2013: the Court of Criminal Appeal finds no error in principle in the sentencing approach of Judge Yvonne Murphy in respect of victim A but certifies the questions set out above for an appeal to this Court.
6. In consequence, there are two issues which are most pertinent. The first concerns the degree to which, in sentencing, a court is required to take time already spent in custody into account in either measuring the sentence or deciding when it is to run from. The second concerns circumstances where there has been a radical change in the record of a person; here, from a situation where they had a serious and directly relevant prior conviction while being sentenced, to a situation where they have no such record on appeal.
The submissions
7. The Director of Public Prosecutions submits that, while the Court of Criminal Appeal can correct errors that arise in consequence of the later sentences of co-offenders being shown as disproportionate to the sentence under appeal, there is no basis in law for the submission that the quashing of a prior conviction between sentence and appeal necessarily renders that sentence wrong in principle. It is contended by them that it “would be inappropriate for either of the questions to be answered in the affirmative.” This is because, it is asserted, “the legislation appears to limit the jurisdiction of the Court of Criminal Appeal to dealing with errors in principle, which would suggest that the answer should be in the negative.” Hence, the assertion is that “the most appropriate answer would be to allow the matter be left to the discretion of the Court of Appeal, taking into consideration the circumstances of any particular case. Counsel has accepted that the Court of Criminal Appeal may have taken too narrow a view of its role in this case, and that it should at least have considered whether it was appropriate that the sentence should date from conviction or should have been backdated in the circumstances. It is pointed out that the question of backdating was not really an issue before the trial judge, since her decision not to make her sentence consecutive to that imposed in the Central Criminal Court meant that the four years would inevitably expire first. It is also accepted that the trial judge would probably have given the appellant credit for time served if she had believed that he had been in custody on these charges only.
8. For Maurice Colbert it was argued that it would be wrong in principle to ignore the prior time spent in custody, which was here a surrender of bail on the pending charges in respect of victim A immediately upon his conviction in respect of victim B. The period of time previously in custody must, it is contended, be taken into account. Where the prior sentence is set aside then, it is claimed, the quashing of a relevant conviction requires the position of the appellant to be treated on appeal “as he would or should have been treated when being sentenced originally where they had spent a period on remand in custody”. That time in pre-conviction detention is properly to be viewed as part of the overall punishment, it is said, rather than a mitigating factor. It is also argued that the Court of Criminal Appeal should have treated Maurice Colbert as a person with no previous convictions, in circumstances where the trial judge had considered the convictions in respect of victim B as significant. The appellant does not now make any argument that the four year sentence was itself excessive or otherwise wrong in principle.
Change of circumstances between sentence and appeal
9. What occurred in this case between the sentence hearing and the appeal hearing was a change in the record. Colloquially, people often talk of a person who has been convicted of a crime as “having a record” or, in worse examples, as “having a bad record”. This expression reflects the idea that, upon conviction, a record is drawn up of the court which establishes a public recording of the offences concerned and the sentence imposed. That record is relevant to any further conviction which an accused gets. It will be pertinent to any sentencing judge to consider certain factors as a matter of principle: whether the person before him or her has led a blameless life, whether they have previously been involved in crime or, in the worst cases, where they are a career criminal. That situation is generally established by the record of the various courts that have previously dealt with the person to be sentenced. While there are formalities in the reception of the record of an accused’s prior convictions into evidence (most generally a computer print out will be produced) only a challenge to a particular conviction will require the production of the court record.
10. Taking the above into account, this case could not be considered as one where the Court of Criminal Appeal was reviewing new evidence. Instead, the plea before the appellate court was for a reduction in sentence based upon a relevant change in the record which had occurred between sentence and appeal. As a matter of undoubted principle, the nature of any record which a person to be sentenced has is among the central considerations in determining how he or she is to be punished. For a sentencing judge to ignore the record would be an error in principle, unless that record was demonstrated as being so far in the past or so trivial as to be irrelevant. For an appellate court, in considering whether the sentencing court had made an error in principle, to fail to consider a relevant change in the record would be incorrect.
11. In The People (DPP) v Cunningham [2002] 2 IR 712, this Court was required to consider an individual instance of a situation which had arisen whereby testimonials, evincing good conduct and educational pursuits undertaken while in custody in the interval between sentence and appeal, were sought to be pleaded before the Court of Criminal Appeal as being relevant. The effective result of allowing that practice was that the accused received two sentence hearings, at the option of the accused, one before the sentencing court and the other before the appellate court. Hardiman J, in the majority judgment, distinguished between the executive function and the judicial function in determining length of sentence. The executive exercises clemency depending upon good behaviour or health considerations relevant to a person in custody and whether such behaviour or other relevant considerations should result in either remission of sentence or temporary release. The judicial function, by contrast, decides upon appropriate punishment in the context of the factors relevant to the commission of the crime and the situation of the convicted person. He admitted, however, at page 739, that circumstances might arise which, citing the judgment of Winneke P in R v WEF [1998] 2 VR 385, are “relevant, not so much per se, but because they throw a different light in circumstances which existed at the time of the sentence”.
12. The overriding principle is as stated at page 741 of that judgment, which rules out the reception of certificates regarding behaviour in custody between sentence and appeal:
It appears to me, in light of the principles summarised above, that the accused is attempting to introduce, at the "error in principle" stage of the appeal, material which would be relevant (if at all) only at the "appropriate sentence" stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time.… Since the material in question was wholly directed at evoking the mercy or leniency of the Court of Criminal Appeal, it could not be said to have any bearing whatever on the question of whether the learned trial judge's sentence was erroneous in principle. Since that was the only issue before the Court of Criminal Appeal, it follows that that court was entirely correct to reject the evidence since it failed to meet the first and most basic test of admissibility, which is relevance to the matter in issue.
13. Later cases affirmed that limitation on the function of an appellate court. But, as a principle, appellate review limited to the state of the evidence at sentencing stage is one which must be considered within its limits. Between the sentencing stage and the appeal stage, factors can occur which may render the approach of the sentencing judge open to review. It may be the case that the sentencing judge, on the material before the court at that time, was faultless in their approach to reaching the appropriate sentence, but that circumstances have altered so much as to require the appellate court to review the sentence as if there had been an error in principle. An instance of that occurred in The People (DPP) v Duffy and O’Toole [2003] 2 IR 192. There, the defendants had pleaded guilty to several counts of possession of firearms and false imprisonment and received a sentence before the Special Criminal Court. Subsequently, another person who participated in the crime received a much lesser sentence, the disparity being that the original defendants had received nine years and seven years imprisonment respectively while, due to the suspension of four years of a six-year sentence, the latter convicted person was only being required to serve two years. Keane CJ at page 201 took the opportunity on behalf of the Court of Criminal Appeal to emphasise the desirability of those participating in a crime to be sentenced, “if at all possible, at the same time and, in any event, by the same judge.” He also affirmed the necessity for the Court of Criminal Appeal to consider the state of evidence as it existed before the sentencing judge but allowed for the possibility that alterations in the subsequent record could render the original approach of the sentencing judge subject to review as being wrong in principle:
As the court has already noted, the judgment of the Supreme Court in The People (Director of Public Prosecutions) v. Cunningham [2002] 2 I.R. 712 makes it clear that the Court of Criminal Appeal in general cannot interfere with a sentence until it has been demonstrated that there was an error in principle by the trial judge. It is clear, however, from the judgments in that case that the issue with which the court was concerned was whether this court could entertain evidence relating to matters such as the present state of health of the applicant or his prospects of rehabilitation which had not been before the court of trial for the purpose of determining whether, in the light of that evidence, the sentence should be regarded as excessive. It is clear from the judgment of Hardiman J., that an important factor was that the court, in acting on such evidence, would be assuming the role of the executive in deciding that a convicted person should be released at an earlier stage than the trial judge had envisaged because of evidence as to his present state of health or similar matters. The court is satisfied that no such considerations arise in this case and that to have regard to the disparity in sentence would not be inconsistent with that decision but would be consistent with the approach adopted in The People (D.P.P.) v. Conroy (No. 2) [1989] I.R. 160.
14. That case could be regarded as an example of an error in principle by the sentencing judge being made manifest by the record of the court. The disparity emerges from the way in which subsequent co-offenders were treated, in that this rendered the original and later sentencing records in respect of the offences which all the offenders had perpetrated so inconsistent with each other as to amount to an error in principle.
15. It therefore follows that the prior convictions of Maurice Colbert in respect of the rape and other serious offences of victim B were relevant as a matter of principle when the trial judge came to sentence him in respect of the sexual violence perpetrated on victim A. Consequently, the subsequent alteration in the record by the quashing by the Court of Criminal Appeal of the convictions for the offences on victim B rendered Maurice Colbert at the time of his appeal as a person who should have been sentenced on the basis of having no prior relevant criminal offence. That alteration was not, to any extent, the fault of the trial judge and nor could it have been considered by her since, at the time of the initial sentencing, it did not exist. But it was a change in the record relevant to sentencing which was outside the remit of mercy or clemency exercised by the executive in allowing early release, and which instead directly impacted on the appropriate sentence. The presence or absence of a prior conviction is a matter which is relevant in sentencing; see for instance The People (DPP) v V (Court of Criminal Appeal, 16th of January 1996, unreported) and The People (DPP) v Kelly [2005] 2 IR 321.
Prior time in custody
16. Counsel for Maurice Colbert have correctly accepted that “there would be very considerable difficulties in the concept of a person having a reserve of time spent in custody which they could seek to apply to future sentences”. While, however, it is right that a person cannot as of right have time in custody on other charges previous to sentence taken into account on that offence, the argument is made that any time spent in custody on a charge prior to sentence on that charge is always to be taken into account by the sentencing judge.
17. To attempt to give rigid answers to the two questions posed by the Court of Criminal Appeal would unnecessarily trammel sentencing discretion. There are a huge number of varied circumstances which can arise in sentencing in relation to prior time in custody and, on appeal, this Court is only dealing with the particular instance now arising. Prior time in custody on an offence should be considered by a sentencing judge when sentencing for that offence. Such time as an accused has spent in custody prior to conviction should be put before the trial judge as part of the prosecution presentation of its case on sentencing. That information should be revealed before the judge decides on the appropriate sentence. The judge should not just be told after pronouncing sentence by way of an application for a sentence to be backdated. Where it is relevant, the sentencing judge should consider what effect on sentence results from time already spent in custody for an offence which an accused is found guilty of or pleads guilty to. As Denham J said in her minority judgment in Cunningham at page 726, sentencing “includes the concept of justice” as what is involved is “considering all the facts of a case with a view to determining a just sentence”.. The issue is always what sentence is appropriate to the particular offence and the particular offender. Where time has already been spent in custody on a charge, that should be considered in fixing an appropriate sentence.
18. What is therefore clear is that part of the factual matrix which should be considered by the trial judge in determining sentence is whether an accused person had spent time in custody with reference to the charge in respect of which a sentence is to be considered. Part of that exercise by the sentencing judge, in arriving at a just sentence, must necessarily involve a consideration of when the relevant custody commenced, whether it coincided with serving a prison sentence or remand in respect of other offences or whether it is related only to the offence for which a sentence is to be imposed, and thus relevant to imposing a sentence which is proportionate to the crime committed, the participation of the convicted person in the crime and any relevant mitigating factors. Prior time in custody solely referable to an offence for which a person is convicted is therefore relevant. It would be impossible to answer the questions posed by the Court of Criminal Appeal beyond offering that guidance.
These offences
19. Maurice Colbert was charged with 12 counts of sexual assaults on a young girl, victim A, in relation to whom he was in a position of authority between March 1991 and September 1995. She was then between the ages of 7 and 12. The abuse presumably stopped as she went into secondary school. On 28th July, the victim made a statement following on the conviction of Maurice Colbert on the 10 counts found proven by the jury. There had previously been a trial where a jury had disagreed. She detailed the offences, which exploited what otherwise should have been a life-enhancing relationship, and her description of what happened to her as a child demonstrates how serious these crimes were. She said:
While in primary school I kept to myself and had very few friends. As a result, I ended up being bullied. I felt different from everyone else. As I got older, I knew it was not normal. I hated [going to where the offences occurred], knowing what was going to happen, but I went as I knew that if I did not go one or other of my two younger sisters would go instead of me and I did not want the same thing to happen to them. When I used to come back home from [the place where the abuse was perpetrated] I used to lock myself into the bathroom and cry… Prior to going for counselling, I felt that I was to blame for the abuse and that I had said or done something for Maurice Colbert to choose to abuse me.
20. The relevant maximum sentence for sexual assault at this time was 5 years imprisonment. That sentence has since been revised upwards to reflect the gravity of this kind of corruption of children. These offences continued over years and it is clear that the sentencing judge took that matter into consideration. As of that time, the sentence imposed could not be regarded as wrong in principle. This was not a case where the sentencing judge had available to her a set of precedents which judicially set out categories of gravity of crime as in The People (DPP) v WD [2007] IEHC 310, [2008] 1 IR 308, which concerned sentencing in rape.
21. These were very serious offences which blighted the life of a young schoolgirl over a period of around 4 years. She was used as an object of sexual gratification by Maurice Colbert who was, at that time, a person to whom she was entitled to look for protection and nurturing. One of the difficulties relating to arriving at a proper series of sentencing bands for sexual assault has been the various recalibration of the maximum sentence through legislation over the past decades. This was clearly a series of offences, however, 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 then the sentencing bands have been increased through legislative intervention. Most recently, s. 37 of the Sex Offenders Act 2001 amends s.2(2) of the 1990 Act and makes a potential sentence for the offence of sexual assault on a child 14 years imprisonment.
22. In this instance, the time spent in custody was directly referable to this case. The accused surrendered his bail because he had been convicted of a different set of offences committed against a different victim. By the time, however, the matter came for reconsideration by the Court of Criminal Appeal, the record had altered so that this surrender of liberty was entirely referable to the offence for which he was later convicted. That changed matters. This was not a case where the accused simply surrendered his bail because of a term of imprisonment for a different matter. That is what, in terms of the record, occurred on 5th February 2010, when on conviction in respect of the rape and other offences against victim B, the accused surrendered his bail in respect of these charges as against the victim A. 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. Thereafter, it is a matter of constructing an appropriate sentence. Because of the gravity of these series of offences, however, notwithstanding the alteration in the record, no error in principle can be found in the sentence actually imposed.
Result
23. The convictions for rape and other serious offences against another victim were correctly taken into consideration by the trial judge when arriving at a proper determination of the sentence in this case. 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, this Court 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. As already noted, no case has been made that a sentence of this length was wrong in principle according to the maximum term for these offences as it stood at that time. It is also the case, however, that the time spent in custody prior to trial may reasonably be regarded, due to the quashing of the offences against victim B, as exclusively referable to this offence against this victim, victim A. The commencement of custody should therefore 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 the appellant was released on bail 3 years later on 4th February 2013, and taking into account the 25% standard remission for prisoners of good behaviour, the Court has no option but to deem that sentence as having been served.