Director of Public Prosecutions v D.D.

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IECA 224
• Docket Number: Record Number: 34CJA/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

D.D.

Respondent

[2024] IECA 224

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 34CJA/22

THE COURT OF APPEAL

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

Facts: The respondent was the father of the complainants. Following conviction, he was sentenced in respect of 2 counts of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981, 4 counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, 3 counts of sexual exploitation contrary to s. 3 of the Child Trafficking and Pornography Act 1998, 6 counts of sexual assault contrary to s. 2 of the 1990 Act and 16 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 the sentence of 15 years imposed on the respondent for the offences of rape, s. 4 rape, sexual exploitation, sexual assault and child cruelty. The essence of the applicant’s argument concerned the pre-mitigation sentence identified for the offences of sexual exploitation, rape and s. 4 rape, that being a notional sentence of 16 years’ imprisonment. She argued that while the judge properly placed the offending within the top range, he erred in placing the gravity at the low end of the top range. It was said that, in that way, the applicant had discharged the burden required for the application. Moreover, it was submitted that when one considers that the sentence was, in effect, a global one, the ultimate sentence of 15 years did not reflect the overall gravity of the offending.

Held by the Court that there was a clear divergence between the sentence imposed and that which ought to have been imposed. The Court held that the trial judge properly identified that the offences fell within the top range, but he erred in placing the notional figure at the bottom end of that range, in light of the egregious nature of the respondent’s offending. Bearing in mind that consecutive sentences were not imposed, the Court was of the view that the headline sentence imposed was a substantial departure from the norm and that the ultimate sentence did not reflect the overall gravity of the offending. The Court proceeded to quash the sentences imposed for the rape and sexual exploitation offences and sentence the appellant de novo.

The Court held that the grave, systematic, prolonged and depraved abuse of 3 young and vulnerable children against a background of terrible neglect led it to believe that the only appropriate and just sentence in the case was one of life imprisonment. The Court was cognisant of the mitigation present, the respondent’s lack of previous convictions, to which very limited weight must be given due to the multiplicity of offences over a prolonged period. The Court was satisfied that the offending merited a sentence of life imprisonment to reflect the gravity of the overall offending conduct. Consequently, the Court imposed a sentence of life imprisonment on the s. 2 rape offences, the s. 4 rape offences and the offences of sexual exploitation. The Court left the sentences imposed on the balance of the offences 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 the respondent for offences of rape, s. 4 rape, sexual exploitation, sexual assault and child cruelty. The sexual offending concerned three of his children, the child cruelty offending related to five of his children.

2 . The respondent is the father of the complainants. Following conviction, he was sentenced in respect of 2 counts of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, as amended, 4 counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990, 3 counts of sexual exploitation contrary to s. 3 of the Child Trafficking and Pornography Act, 1998, as amended, 6 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act, 1990, as amended and 16 counts of child cruelty contrary to s. 246 of the Children Act, 2001. We have not used the respondent's or the victims' real initials in the interests of protecting the identity of the children.

Background

3 . The respondent has six children with his wife, his co-accused who we will call CC. We will refer to the children, the subject of the indictment as A, B, C, D, and E. The sexual offending concerns the respondent's sons; A and C and his daughter B. The child cruelty counts are common to the five children.

4 . The respondent was tried with six co-accused, two of whom were the subject of a directed acquittal. All of the offending 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.

5 . Headline sentences of 16 years' imprisonment were nominated by the judge for the rape and sexual exploitation offences, 6 years for the sexual assault offences, 5 years for the child neglect/administration of medication child cruelty offences and 6 ¹/₂ years for the child cruelty offences with a sexual dimension.

6 . The sentences were reduced to 15 years' imprisonment on the rape counts, the s. 4 rape counts and the sexual exploitation counts, 5 years' imprisonment on the sexual assault counts, 4 years' imprisonment on the counts concerning child cruelty by neglect/administration of medication and 5 years' imprisonment on the counts of child cruelty by allowing other persons to engage in sexual activity with the children. All sentences were imposed concurrently.

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

8 . Given the breadth of abuse in these cases, an unusual application was made by the Director to limit the details of the offending to protect the children. We will refer to only as much of the detail as is necessary to interrogate the within application.

9 . The sexual abuse concerned the inappropriate touching of the children by the respondent on numerous occasions, instructions to engage with others, for which he was present, the s. 2 rape of his daughter and the s. 4 rape of his sons. The respondent photographed his children in compromising positions. His daughter said that inappropriate photographs of her, the respondent and her uncle (to whom we have referred in a judgment on conviction as AA) were posted online.

10 . Evidence was given at trial in respect of the respondent's use of medication which was not prescribed for A, B and C in an effort to get them to go to sleep.

11 . The counts in respect of D and E relate to the neglect of those children.

Personal Circumstances of the Respondent

12 . The respondent was assessed as having an intellectual functioning between the low average of intelligence and mild intellectual disability ranges. He has some health issues and suffers from epilepsy.

Sentencing Remarks

13 . 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 and including the administration of medication to three of the children, the profound breach of trust by the respondent as a parent of these children and his failure in his duty to care for, nurture and protect his children, the repetition of the offences over time, the repeated access given by the respondent to others to commit sexual offences upon his children, his presence on some of these occasions, the young ages of the children and the appalling suffering and damage caused to them.

14 . The judge considered that the number of closely related adults involved in the abuse within the family deprived the children of a trusted adult figure within the family to whom they 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.

15 . He considered the mitigation to include the absence of previous convictions, that the respondent had not come to adverse garda notice while on bail or before these matters, his age, his health issues, his expression of concern and satisfaction that the children are now happy and receiving good care and his low intellectual functioning.

16 . The judge noted that rehabilitation was not an option that the court could pursue in the respondent's case as he rejected the verdicts of the jury.

Grounds of Application

17 . The Director relies, in essence, on two grounds; the appropriateness of the headline nominated for each count of sexual offending and that the sentence imposed does not reflect the overall gravity of...