Director of Public Prosecutions v A.A.

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IECA 225
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 35CJA/22

In the Matter of Section 2 of the Criminal Justice Act 1993

Between/

The People at the Suit of the Director of Public Prosecutions

Applicant

and

A.A.

Respondent

[2024] IECA 225

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 35CJA/22

THE COURT OF APPEAL

Sentencing – Sexual offences – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent was an uncle by marriage of the complainants, and was convicted of 4 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, 3 counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998, 2 counts of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981 and 1 count of rape contrary to s. 4 of the 1990 Act. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of the sentence of 15 years imposed on the counts of rape, s. 4 rape and sexual exploitation and 4 years imposed on the counts of sexual assault. The applicant contended that the judge was correct in identifying that the offences fell within the top range but erred in placing the notional figure at the bottom end of that range. It was said that while the culpability of the children’s father was at a higher level, the respondent’s culpability was only marginally lower, due in part to his deceitful and manipulative conduct in his dealings with the social workers and the fact that he played a central role in the abuse.

Held by the Court that the nomination of a headline sentence of 16 years was too low and that the ultimate sentence did not adequately reflect the overall gravity of the offending. The Court noted that the respondent abused three children over a prolonged period in a most egregious manner; he preyed upon the children who were trapped within a family of abusers. The Court noted that the children were very young, the nature of the activity was very serious and the breach of trust was gross. The Court noted that the children should have felt protected in the family environment; instead the extended family were involved in the abuse, in which the respondent was a central figure. The Court noted that this was against the background of severe neglect of which the respondent was fully aware. The Court noted that he participated in meetings with the social workers who were attempting to assist the children insofar as the neglect was concerned prior to the sexual abuse becoming known; he sexually abused the children while putting himself forward as an advocate for the family. In the circumstances, the Court found that the sentence constituted a substantial departure from that which ought to have been imposed and proceeded to re-sentence de novo.

The Court held that the respondent’s moral culpability was not quite at the same level as that of the father. Therefore, the Court did not consider that a life sentence was justified. The Court believed the appropriate headline sentence to be that of 20 years’ imprisonment. In terms of mitigation, the Court noted that the respondent was a man with no previous convictions, however, much lesser weight, if indeed any at all, was given to that factor given the prolonged offending. The Court considered that a sentence of 18 ½ years was warranted on the rape offences, the s. 4 rape offences and the sexual exploitation offences; this sentence reflected the overall gravity of the offending. The Court left the remaining sentences as imposed by the trial judge; post-release supervision also remained as imposed by the trial judge.

Appeal allowed.

JUDGMENT of the Court delivered on the 30 ^th day of July 2024 by Ms. Justice Isobel Kennedy.

1 . This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency of a sentence of 15 years imposed on counts of rape, s. 4 rape and sexual exploitation and 4 years imposed on counts of sexual assault.

2 . The respondent is an uncle by marriage of the complainants, and was convicted of 4 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, 3 counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act, 1998, as amended, 2 counts of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, as amended and 1 count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990. We have not used the respondent's or the victims' real initials in the interests of protecting the identity of the children. A and C are the respondent's nephews and B is the respondent's niece. He is married to their maternal aunt.

Background

3 . The respondent was tried with six co-accused, five of whom were convicted of various sexual offending in respect of these children. Those convicted included the children's parents, this respondent and a maternal uncle. Undue leniency applications regarding the parents are before the Court. The maternal uncle appeals the severity of his sentence.

4 . In respect of this respondent, a headline sentence of 16 years' imprisonment was nominated on the rape, s. 4 rape and sexual exploitation offences. A headline sentence of five years was nominated for the sexual assault offences. The sentences were reduced for mitigation to 15 years and 4 years, to run concurrently.

5 . The offending occurred between the 18 ^th August 2014 and the 28 ^th April 2016 when A was aged between 7 years and 9 years, B was aged between 6 years and 7 years and C was aged between 5 years and 6 years.

6 . The children were taken into care due to neglect, and subsequently made disclosures of sexual abuse against their parents and other family members.

7 . Given the breadth of abuse in these cases, the Director made an unusual application to limit the details of the offending to protect the children and therefore we do not intend, insofar as it is possible, to set out in detail the nature of the abuse perpetrated on each of the three children.

8 . The respondent was convicted of the sexual assault and sexual exploitation of A, the rape and sexual assault of B and the s. 4 rape, sexual exploitation and sexual assault of C.

9 . In general terms, this respondent inappropriately touched the children, compelled and instructed them to engage with each other and other persons, raped child B and committed s. 4 rape on child C. All children were young and vulnerable.

Personal Circumstances of the Respondent

10 . The respondent was 49 years of age at the time of sentencing. He has no previous convictions.

Sentencing Remarks

11 . The sentencing judge listed the aggravating features of the respondent's offending as the gross betrayal of trust, the very young age of the children and the damage and suffering inflicted upon them which is continuing.

12 . The judge considered that the number of inter-related adults involved in the offending resulted in there being no adult figure within the family to whom the children could turn. He stated that the isolation, abuse and control of these children by the adults in the course of the neglect or sexual abuse was total.

13 . In mitigation, inter alia, the judge took into account the respondent's lack of previous convictions, his constructive involvement in the community, his history of ill mental health and hospitalisation.

Grounds of Application

14 . The Director relies, in essence, on two grounds; that the...