A man convicted of serious sexual assault of a young girl must be treated as having completed his four-year sentence, the Supreme Court has ruled.
Maurice Colbert (62), Coolbagh, Clashmore, Co Waterford, secured bail in 2013 after being convicted in July 2011 of 10 counts of sexual assault against the girl, referred to as Victim A, on dates between 1991 and 1995 when she was aged between seven and 12.
In her victim impact statement, his victim said she hated going to the place where the abuse occurred but believed, if she did not, her younger sisters would go “and I did not want the same thing to happen to them”.
Colbert was on bail pending trial for the Victim A offences when he went into custody in February 2010 as a result of his conviction of rape and other offences against a different girl, Victim B, on dates between 1994 and 1997.
He had denied offences against either girl.
After his Victim B conviction was overturned, Colbert was released on bail in 2013 pending the Supreme Court determination of important legal points concerning how his sentence in respect of Victim A should now be treated.
The points arose because, when Judge Yvonne Murphy imposed sentence on Colbert for the offences against Victim A, she took into account he was then serving an eight-year sentence arising from his conviction for offences against Victim B. She directed the Victim A sentence run concurrent to the Victim B one.
Overturned
The Victim B conviction and eight-year sentence was later overturned with a re-trial ordered, but the DPP did not proceed with a retrial, and instead entered a nolle prosequi, after Victim B said she could not face another trial, the Supreme Court noted.
In judgments on Monday, the five-judge Supreme Court ruled the four-year sentence for Colbert’s offences against Victim A, when imposed in 2011, was an appropriate sentence at that time for the serious offences against her.
The maximum penalty for such serious offences has since increased, Mr Justice Peter Charleton and Ms Justice Iseult O’Malley noted in their joint judgment.
Its judgment, along with a concurring judgment of Mr Justice Donal O’Donnell, considered the role of appeal courts in altering sentences when an offender’s circumstances have changed since the original sentence was imposed.
The Supreme Court ruled the appeal court could, as a matter of law, take into account time spent by Colbert in custody for the conviction which was later quashed. It also ruled the appeal court could, as a matter of law, take into account time spent on remand by him even where he was at the same time serving a sentence for the previous, later quashed, conviction.
When appealing his four-year sentence for the Victim A offences, Colbert argued the sentence should be backdated to February 5th, 2010, when he first went into custody on the eventually quashed counts. He also argued he should have been sentenced as a man with no previous convictions.
Prior conviction
The Supreme Court held the Victim B conviction was correctly taken into consideration by the trial judge when deciding his sentence for the Victim A offences because Colbert had at that time a “serious and directly relevant” prior conviction.
The situation was different when his appeal over the Victim A conviction was heard because the Victim B prior conviction was quashed by then, it said.
It would not interfere with the four-year sentence given the gravity of the offences and their marked impact on Victim A, the court ruled. However, the time spent in custody before trial could reasonably be regarded, due to the quashing of the Victim B conviction, as exclusively related to Victim A. Time in custody should as a result be backdated to February 2010, when Colbert surrendered his bail in relation to the Victim B conviction.
Given he was freed on bail in February 2013, and taking 25 per cent remission into account, the Supreme Court has “no option” but to deem his sentence served, the judges said.
