Director of Public Prosecutions v Hearne

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 13 May 2019
• Neutral Citation: [2019] IECA 137
• Docket Number: [179/17]
• Court: Court of Appeal (Ireland)
• Date: 13 May 2019

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

KEITH HEARNE

APPELLANT

[2019] IECA 137

Kennedy J.

Birmingham P.

Whelan J.

Kennedy J.

[179/17]

THE COURT OF APPEAL

Sentencing – Sexual offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Hearne, on the 19th June 2017, following a plea of guilty in respect of the counts on indictment, was sentenced in the Central Criminal Court to 12 years’ imprisonment in respect of the offences of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981, rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, false imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act 1997 and sexual assault contrary to s. 2 of the 1990 Act. The appellant appealed to the Court of Appeal against severity of sentence.

Held by the Court that the judge fell into error. The Court noted that whilst the judge acknowledged the appellant’s mental disorder, he did so in the context of assessing the gravity of the offending behaviour and he therefore only considered his mental difficulties in the context of considering whether such had the capacity to extenuate his moral culpability; he did not consider whether the appellant’s mental disorder had the capacity to mitigate his sentence, in the context of having the potential to impact adversely upon his capacity to serve a sentence of imprisonment. The Court noted that the absence of previous convictions is ordinarily a mitigating factor and that there are circumstances where the absence of convictions may not be treated as such, for example, where an accused has been engaged in sexual offending over a prolonged period but has not been brought to justice. The Court found that this was not one of those cases and it was therefore satisfied that the sentencing judge fell into error in failing to consider the absence of previous convictions as a mitigating factor. The Court was satisfied that whilst the judge fell into error, this did not result in an error of substance. The offending conduct on the part of the appellant was of a most serious character and even taking the mitigating elements into account, the Court was satisfied that the conduct merited a sentence of 12 years’ imprisonment.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 13th day of May 2019 by Ms. Justice Kennedy

Introduction

1 This is an appeal against severity of sentence. The sentence under appeal was imposed in the Central Criminal Court on the 19th June 2017, following a plea of guilty in respect of the counts on indictment.

2 The appellant was sentenced to 12 years” imprisonment in respect of the offences of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981; rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act, 1990; false imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act, 1997; and sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990.

Background

3 The incident in question occurred on the 4th of July 2015 in the Crowne Plaza Hotel in Blanchardstown. The injured party was volunteering at a convention being held in the hotel. She was in the midst of setting up an audio-visual display in one of the hotel rooms when the appellant, who was an attendee of the convention, locked her into the room and proceeded to throw her on the ground. A scuffle ensued and the complainant was thrown into a row of chairs and tackled to the ground where the appellant sat astride her. He put his hand over her mouth to muffle her screams and licked her cheek, saying “any girl would love this”. He told her he could break her neck there and then and asked her if she would prefer that. He asked her was she going to be a good girl and he then removed her clothing and used a neck tie to bind her hands. He then digitally penetrated her. The injured party described this as being extremely painful and that he was very rough. She screamed throughout and he then leant over her and threatened her, stating ‘I have a knife in my bag. If you don't shut up, I'll use it.’ He attempted to vaginally penetrate the complainant with his penis but could not maintain an erection. He masturbated and then, pulling the complainant's legs over her head, he vaginally penetrated her. She described this as incredibly painful. He grabbed her by the hair and pulled her to her knees. She managed to extract one hand from the binding, at which point he struck her and then grabbed her by the back of the head and put his penis into her mouth, gagging her due to the force he used.

4 The offending ended when a third party heard the commotion and managed to enter the room and tackle the appellant, leading to the appellant's arrest. The appellant's bag was seized and was found to contain a prop knife purchased at the convention, handcuffs, condoms and sadomasochistic items including a studded collar, leather gloves and a leather mask.

5 During the course of interviews with the Gardaí, the appellant made admissions as to the offences in question, stating that he had a mental disorder and had not been taking his medication in the weeks leading up to the offence.

Personal circumstances

6 The appellant was born on the 12th of July, 1988, and is from Tallaght, Co. Dublin. The appellant has no previous convictions. Evidence was given by the appellant's mother detailing the appellant's psychiatric history which include diagnoses of ADHD, autism spectrum disorder, bipolar disorder and schizoaffective disorder. The appellant received treatment as an in-patient in St Patricks Institution when he was 15 years old. A number of reports were compiled for sentencing purposes and these provide details of the appellant's variable use of psychiatric medications and place the appellant at a moderate to high risk of reoffending. Specifically, the judge received a psychiatric report from Dr. Monks, Consultant Forensic Psychiatrist, dated the 27th January 2017. The judge requested a pre-sentence psychiatric report, which report was also prepared by Dr Monks and is dated the 12th June 2017.

The sentence

7 The trial judge identified a headline sentence of 15 years” imprisonment in respect of the two counts of rape and allowed a discount of 3 years for the mitigating factor, being that of the plea of guilty. Concurrent sentences of twelve years and six years were imposed in respect of the counts of false imprisonment and sexual assault. In his sentencing remarks, the judge acknowledged the need to permit of the potential for rehabilitation. A period of five years” post-release supervision was imposed.

8 In the course of sentencing, the trial judge referred to the victim impact report and the devastating impact suffered by the complainant as a result of the appellant's offending. The trial judge also referred to the reports prepared in respect of the appellant, noting that the reports make clear that the appellant was of sound mind at the time of offending. The reports also indicated that there was a moderate to high risk of sexual reoffending and the trial judge indicated that the mitigating factor of a low risk of recidivism was not present in this case.

9 Following a careful consideration of the offences, the trial judge outlined the headline sentence as follows: -

‘Having regard -- I must look of course at the individual offender for these crimes. It is not a question of looking at some notional or theoretical person. I must look at the accused who is before me and I must have regard to the totality of the evidence pertaining to this offence and this accused which extends and includes of course to the adverse effects on the victim. The Sex Offenders Act provides that the adverse effects on a victim should be taken into account in sentencing. To my mind, that Act did not consolidate the common law but made provision explicitly for the imposition of a higher sentence, commensurate with the risk or at least with the adverse effects on an accused -- or a victim of crime. So, in all of the circumstances before applying any mitigating factor it seems to me that the appropriate sentence in respect of those are the offences which carry the most serious penalties, that is imprisonment for life, in particular the rape contrary to common law and the offence of rape contrary to section 4, the sexual offences which carry that penalty, it seems to me that the appropriate penalty is one of 15 years' imprisonment.’

In terms of mitigation, the judge stated as follows: -

‘Now, I must take into account the mitigating factors. There is only one mitigating factor as far as I'm concerned and that mitigating factor is the plea of guilty, which I accept was at an early stage and which I accept was preceded by written communication with the Director of Public Prosecutions or his or her solicitors. However, since the accused was found in flagrante in respect of this matter, the mitigation to be afforded in respect of the plea of guilty must be modest and accordingly I will reduce the penalty, or impose a sentence of 12 years affording a relatively modest period of three years approximately by way of reduction to recognise the fact of the plea.’

Grounds of appeal

10 The appellant puts forth the following grounds of appeal, as outlined in written submissions: -

(i) Having identified where on the spectrum of the offending behaviour the incident offence lay and having articulated it as falling at the top bracket of the offending and warranting a term of imprisonment of 15 years” imprisonment, the learned sentencing Judge specifically stated that the only sole mitigating factor present was the plea of guilty as offered by the defendant and suspended a period of three years to reflect same;

(ii) The learned...