Director of Public Prosecutions -v- PD (Criminal Assault on Child)

• Judge: Halpin J.
• Judgment Date: 10 January 2013
• Neutral Citation: [2013] IEDC 1
• Case Outcome: Approved
• Court: District Court (Ireland)

[2013] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GC)

PROSECUTION

-V-

PD

DEFENDANT

CHILDREN ACT, 2001— SECTION 246

10 January 2013

1. This is a prosec ution brought by Garda GC against the defendant for an offe nce c ontrary to sect ion 246 of the Children Act, 2001.

The DPP has c onsented f or this case to be de alt with summarily before this court. The solicit or for the Defendant has entered a plea

of guilty for his c lient in respect of the off ence: namely to ass aulting a four-month-old child cont rary to sec tion 246 of the Children

Act 2001 which provides that:

‘[i]t shall be an offenc e for any person who has the c ustody, charge or ca re of a c hild wilfully to assa ult, ill-treat,

neglect, abandon or expose the c hild, or cause or procure or allow the c hild to be as saulted, ill-treated, neglected,

abandoned or exposed, in a manner likely to cause unnecessary suf fering or injury to t he child’s health or seriously

to aff ect his or her wellbeing.’

2. At t he time of the offence, the defe ndant had charge, c ustody, and care of the c hild in question and was therefore responsible for

the c are, protec tion, and welfare of the c hild on the day and at the time of t he occ urrence of t he offenc e. The sec urity for the

person is among the first conditions of civilised life. The law, t herefore, protec ts us, not only against ac tual hurt and violence , but

mandates those in c harge of children without equivoca tion to exercise such powers as to ensure t hat those in their care are not

subject t o such physical or emotional transgressions.

3. As a result of the off ence, the injuries sustained by the c hild will have long-term affects upon their development, as articulated by

the Consultant Rheumatologist. The child’s injuries included skull fractures, ischemic brain injury, and retinal haemorrhages. The

injuries are quite significant having regard that they were inflicted upon a f our month old child. There c an be no excuse or justificat ion

in respect of such injuries and in the absenc e of explanation assault, ill-t reatment, and cruelty, like every other vice, requires no

motive outside of itself; it only requires opportunity.

4. Sect ion 246 of the Children Act, 2001 concerns c ruelty to children. Assault is not def ined by the Ac t but it must be assumed that

assault must have as its meaning what ordinary persons of reasonable intelligence think it to mean. Therefore, t he definition must

include a slap, which would rank as an off ence on the minor sc ale of assault, right up to injuries such as skull-fract ures, which would

rank as an offenc e on the highest level of the s cale of a ssault.

5. In the instant case which included injuries of skull fract ures, brain injury, and haemorrhages of the eyes , it is c orrect t o say that

they are of the grievous kind contemplated within the meaning of sec tion 246. This is so bec ause section 246 bundles together in a

generic cont ext conduc t of assault, ill-treat ment, neglect, and a bandonment and c learly to appreciat e the t rue extent of such

offence s such as assault as understood by the s ection and having regard to the defenc elessness of the infant w ho sustained the

injuries the gravity of the offence must be at t he highest level envisaged by t he legislature.

6. The c ourt has bee n informed that the defendant has previous convic tions and of significanc e is a c onviction for sexual assault a nd

a previous convict ion for physical assa ult. Moreover, the c ourt has been informed that the defe ndant has, in the pas t, shown an

inability or unac cepta ble level of impulse cont rol. Furthermore, it has bee n noted that , again in the past , the defendant has displayed

little remorse or victim empathy for his behaviour.

7. A fac tor which the court also has to take into ac count in the instant case is t hat, on presenting the c hild to the hospital, he

misinformed medical staff in relation to the ev ents c oncerning the c hild’s injuries and their occurrence.

8. No abuse to a child is acc eptable, in fact I w ill go further and say, that before you reprimand a c hild, be sure you, yourself, are not

the c ause of t he behaviour being reprimanded. The medical reports in this case show that a c hild of 4 months has bee n subjected t o

a brutal, vicious, and v iolent assault and having regard to t he tender age of the infant the vulnerability and exposure of the infant

was disproportionately present and predominant in that t he infant c ould neither defend himself nor flee the situation and as suc h

these fa ctors a re of consideration in measuring the penalty appropriate to t he offenc e to be imposed.

9. The c hild in this case is now past his sec ond birthday and will, at t he age of majority, have a cc ess to all medical reports and t he

court f ile in respect of t hese matters a nd rightly so and therefore will be able to judge for himself whether justice was done in this

case having regard to all matt ers before this c ourt. The gravity of t he offenc e before this c ourt, as I have already said, is one at the

highest level of seve rity. Notwithsta nding this, a plea of guilty resulting in the ec onomies of marshalling witnesses, court time, and

exposure of witnesses t o cross-examination usually results in a discount ed penalty being an appropriate sanc tion to be imposed. Also,

because of the prudential and et hical considerations motivating the grant o f a discount ed penalty for a guilty plea, it follows that the

maximum sentence should never be imposed in response to a guilty plea unless t he circumstanc es are exceptional.

10. Invariably, but not always, it would be rare for the c ircumstances of a c ase to be exceptional in the District Court given that the

offence may proceed on indictment which mandates t he highest law off icer in criminal law to c onsider whether to proceed on

indictment or not and in the inst ant c ase the DPP proc eeded by way of summary disposal.

11. Although the Defendant has previous convict ions for sexual assault and physical assa ult, that is not ordinarily a relevant fact or in

assessing the gravity of the offence . Furthermore, judges must exercise great caution in imposing maximum sentence s following a

guilty plea because o f the ef fect it might have on defendant s’ admission of guilt at an early stage and in t urn the affec t this would or

could have on vic tims within the criminal process.

12. I genuinely believe that in this c ase, regrett ably but absolutely, t here exists except ional circumstances whic h warrant the