M, R v

Factual and Procedural Background

An appeal was brought against sentences imposed by His Honour Judge Markey QC on 28 June 2002 at Belfast Crown Court. The appellant received three consecutive terms of 21 months' imprisonment each, resulting in an effective sentence of five years and three months. The appellant was charged on five counts, pleading guilty to the first three: inciting a child to commit an act of gross indecency and committing acts of gross indecency with the same child on various dates. The remaining two counts of indecent assault were ordered to lie on file.

The offences involved the appellant engaging in sexual acts with a nine-year-old child, the daughter of his partner. The appellant attempted to offer money to the child for sexual acts, was discovered by the child’s mother, fled the jurisdiction briefly, and then surrendered to police. The appellant admitted some acts but denied others, including the extent and nature of the abuse. A victim impact report detailed the profound psychological and emotional trauma suffered by the child. Pre-sentence reports described the appellant’s disturbed childhood and a history of sexual abuse, alongside concerns about his lack of remorse and high risk of reoffending.

The sentencing judge expressed frustration at the statutory maximum sentence of two years for the offences, describing it as grossly inadequate and a public scandal. He imposed consecutive sentences to reflect the seriousness of the conduct and declined to impose a custody probation order, opting instead for an order under Article 26 of the Criminal Justice (Northern Ireland) Order 1996.

Legal Issues Presented

1. Whether the sentencing judge was justified in ordering the sentences to run consecutively rather than concurrently.
2. Whether a custody probation order should have been imposed instead of consecutive custodial sentences.
3. Whether the total sentence was manifestly excessive.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge erred in making the sentences consecutive rather than concurrent.
• The judge should have imposed a custody probation order rather than consecutive custodial sentences.
• One ground of appeal, though not pursued in argument, was that the total sentence was manifestly excessive.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Magill [1989] 4 NIJB 81	Concurrent sentences should be imposed where offences occur within a relatively short space of time; inadequacy of sentencing powers does not justify consecutive sentences.	The court distinguished the present case from Magill, holding that the offences spanned several months and constituted a course of conduct, justifying consecutive sentences despite the inadequacy of sentencing powers.
Attorney General's Reference (No 1 of 2002) [2002] NIJB 187	Custody probation orders are not inherently less of a sanction than custodial sentences.	The court held that the sentencing judge’s preference for an Article 26 order over a custody probation order was justified, though the reason given was not sustainable.
R v McGowan [2000] NIJB 305	Article 26 orders should be preferred over custody probation orders in sexual offence cases where statutory conditions are met.	The court affirmed that an Article 26 order was appropriate given the continuing danger posed by the appellant.

Court's Reasoning and Analysis

The court acknowledged the inadequacy of the statutory maximum sentence of two years for gross indecency offences and shared the sentencing judge’s frustration. While the sentencing judge relied primarily on this inadequacy to justify consecutive sentences, the court clarified that this alone does not constitute exceptional circumstances warranting consecutive terms, as held in R v Magill. However, the court found that the offences spanned several months and thus represented a course of conduct rather than a single transaction, providing an independent and sufficient basis for consecutive sentences.

Regarding the choice between an Article 26 order and a custody probation order, the court recognized that the sentencing judge’s rationale (concern about public perception of a soft option) was not legally sustainable. Nonetheless, the court agreed that an Article 26 order was appropriate in this sexual offence case due to the ongoing risk posed by the appellant and consistent with recent authority.

The court was concerned that the discount for the appellant’s early guilty plea and remorse was minimal. It emphasized the importance of maintaining a meaningful reduction to encourage early pleas and save victims from testifying. The court concluded a six-month reduction per count was appropriate, reducing each sentence to 18 months, to run consecutively.

Holding and Implications

The appeal was ALLOWED IN PART. The court substituted the sentences of 21 months on each count with 18 months to run consecutively, resulting in an effective sentence of four and a half years. All other orders made by the sentencing judge were confirmed.

The decision underscores the court’s recognition of the inadequacy of current statutory maximum sentences for gross indecency offences involving children and reiterates the need for legislative reform. The court urged the legislature to amend the maximum term of imprisonment under section 22 of the Children and Young Persons Act (Northern Ireland) 1968 as a matter of urgency. No new legal precedent was established beyond applying existing principles to the facts of this case.