Director of Public Prosecutions v C.C.

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IECA 223
• Docket Number: Record Number: 33CJA/22
• Court: Court of Appeal (Ireland)

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

C.C.

Respondent

[2024] IECA 223

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 33CJA/22

THE COURT OF APPEAL

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

Facts: The respondent, the mother of the complainants, was convicted and sentenced in respect of 8 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, 4 counts of sexual exploitation contrary to s. 3 of the Child Trafficking and Pornography Act 1998 and 13 counts of child cruelty contrary to s. 246 of the Children Act 2001. 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 a sentence of 9 years imposed for the sexual exploitation offences and sentences of 4 years and 5 years imposed for the sexual assault offences. The applicant contended that the headline sentence nominated on the sexual exploitation counts should have been within the top range and that the ultimate sentence of 9 years’ imprisonment did not reflect the gravity of the overall offending.

Held by the Court that the judge was correct in identifying the range of sentence for the sexual exploitation offending as between 10 and 15 years’ imprisonment. However, the Court departed from his view thereafter, when he considered that 12 years was the appropriate place on the scale for those counts. In the Court’s view, the conduct of the respondent, whether acting alone or with others was, as the judge indicated, very serious, but the Court believed that the culpability of the respondent placed her at the very top end of that range; indeed, were it not for the view of the judge that the dynamic of the offending was not primarily driven by the respondent, when the Court viewed it in terms of her moral culpability, it would consider, absent that extenuation of her culpability, that the applicant was correct and that her culpability would merit a sentence in the very top range. However, given that the judge, who was in the best position after a lengthy trial to determine her role, found that it was somewhat less than her co-offenders, the Court was of the view that the range was that of 10-15 years, but the very top end of that range. In those circumstances, the Court believed there to be an error in principle. The Court quashed the sentence imposed and proceeded to sentence de novo on a consideration of all the evidence and materials.

The Court considered the aggravating factors and the respondent’s somewhat lesser role. The Court held that the appropriate headline sentence for the sexual exploitation counts was that of 15 years’ imprisonment. The Court held that, as identified by the trial judge, the inevitable consequence of the respondent’s approach at trial in resiling from her admissions was that the substantial mitigation for a plea of guilty and genuine remorse and regret was simply not available. Taking the permissible mitigating factors into account, the Court reduced the sentence of 15 years on the sexual exploitation counts by 20% and so reduced the sentence to one of 12 years’ imprisonment. The Court held that the sentences imposed by the judge on the balance of the counts would remain as imposed. The Court held that post-release supervision of 3 years would remain also on the same conditions 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 9 years imposed for offences of sexual exploitation and sentences of 4 years and 5 years imposed for sexual assault offences.

2 . The respondent, who we refer to as CC, is the mother of the complainants and was convicted and sentenced in respect of 8 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, 4 counts of sexual exploitation contrary to s. 3 of the Child Trafficking and Pornography Act, 1998, as amended, and 13 counts of child cruelty contrary to s. 246 of the Children Act, 2001.

3 . We have not used the respondent's or the victims' real initials in the interests of protecting the identity of the children. The Director contends that the headline sentence nominated on the sexual exploitation counts should have been within the top range and that the ultimate sentence of 9 years' imprisonment does not reflect the gravity of the overall offending.

Background

4 . CC met her husband, her co-accused DD, the father of her children, when she was 17 years of age. She has six children by her marriage. The indictment concerns five of the children. This review concerns the sentences imposed for the sexual offending.

5 . The respondent was tried with six co-accused, two of whom were the subject of a directed acquittal by the trial judge. The offences occurred between the 18 ^th August 2014 and the 28 ^th April 2016. Between those dates, A was aged between 7 years and 9 years, B was aged between 6 years and 7 years, C was aged between 5 years and 6 years, D was aged between 3 years and 4 years and E was aged between 1 year and 3 years. The sexual offending concerned the children A, B and C.

6 . The children were initially removed from the care of their parents on the basis of neglect. Subsequently, the children made disclosures of sexual abuse against their parents and other family members.

7 . The respondent made admissions concerning certain allegations which formed the sole evidence on those counts. She later resiled from those admissions.

8 . The Director seeks limitations on the expression of the details of the nature of the offending and so we do not intend to detail the nature of the sexual activity, insofar as this is possible.

9 . The respondent inappropriately touched A, B and C in a variety of depraved ways constituting the sexual assault offences. In respect of one child, the child was compelled to touch the respondent.

10 . Insofar as the sexual exploitation is concerned, this respondent together with the children's father and uncle by marriage, (whom we shall call AA) instructed A to engage with others. Moreover, this respondent was present when AA demonstrated sexual acts to A.

11 . The respondent also posted photographs online of B while being sexually assaulted by AA. The nature of the sexual assaults particularly concerning A were of a serious order.

12 . The sexual exploitation counts were committed either on her own or with two of her co-accused. Those counts are particularly egregious and for which the judge nominated a headline sentence of 16 years in respect of the co-accused. The trial judge was satisfied that there were some elements in the evidence which suggested that the dynamic of the sexual offending was not primarily driven by this respondent. A headline sentence of 12 years was nominated for the sexual exploitation counts which was reduced to that of 9 years' imprisonment.

13 . The counts concerning the two younger children were those of neglect.

Personal Circumstances of the Respondent

14 . The respondent is said to have had a difficult upbringing in a home in which violence was commonplace. A report prepared prior to the offending becoming known places her at a low intellectual level. She achieved low scores in virtually all of the psychological assessments made of her when compared with most other persons. She has no previous convictions and had not come to adverse garda attention prior to these offences or while on bail.

Sentencing Remarks

15 . The sentencing judge considered the aggravating features of the respondent's offending to include the prolonged nature of the child neglect, the form of the neglect, extending into every facet of each child's life, the manipulation involved, in that the abuse continued after involvement by Tusla and other agencies, the profound breach of trust by the respondent as a parent of these children and her failure in her duty to care for, nurture and protect her children, the repetition of the offences over time, the repeated access given by the respondent to others to commit sexual offences upon her children, her presence on some of these occasions, the young ages of the children and the appalling suffering and damage caused to them.

16 . The judge considered that the number of closely related adults involved in the abuse within the family meant that the children had no adult figure within the family to whom they could turn given that virtually all of the adults in their lives were the source of the abuse. He stated that the isolation, abuse and control of these children by the adults in the course of the neglect or sexual abuse is total.

17 . The judge nominated headline sentences of 6 years in respect of the sexual assault offences, 12 years in respect of the sexual exploitation offences, 6 years in respect of the child cruelty offences with a sexual dimension and 5 years in respect of the child cruelty by neglect offences.

18 . He considered the mitigation to include inter alia the respondent's lack of previous convictions, her difficult early family life and that she became pregnant at 17. He emphasised, in respect of her admissions, that the credit available for such assistance to gardaí was hugely undermined by her resiling from those admissions.

19 . He also noted that male sexual offenders benefit from segregation from non-sexual offenders whereas that is not available to the respondent in a women's prison but that the operation and good...