Director of Public Prosecutions v B.O'S
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 27 March 2023 |
| Neutral Citation | [2023] IECA 84 |
| Docket Number | Record No: 57/2022 |
| Court | Court of Appeal (Ireland) |
In the Matter of an Application Pursuant to Section 2 of the Criminal Justice Act 1993
and
In the Matter of Bill LHDP0007/2021
[2023] IECA 84
Edwards J.
McCarthy J.
Donnelly J.
Record No: 57/2022
THE COURT OF APPEAL
Sentencing – Sexual assault – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent appeared before the Circuit Criminal Court for the Eastern Circuit and County of Louth on the 8th of October 2021, on which date he was arraigned and subsequently pleaded guilty to a count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. On the 24th of February 2022, he was sentenced to 4 years’ imprisonment, which custodial sentence was suspended in its entirety for a period of 4 years, subject to certain probation conditions, namely, to keep the peace and be of good behaviour for the length of his probation period, to engage with Probation Services and comply with all their instructions, and to engage with addiction services. On the 16th of March 2022, the applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for review of the sentence imposed upon the respondent on the grounds that it was unduly lenient. The applicant advanced the following grounds: (1) that the sentencing judge erred in law and fact in failing to have appropriate regard to the range of sentences applicable to the offence of sexual assault; (2) that the judge imposed a disproportionate sentence that did not give sufficient weight to aggravating factors/did give excessive weight to mitigating factors; (3) that the judge erred in wholly suspending the sentence, having regard to the seriousness of the offence; and (4) that the judge did not act in the public interest by wholly suspending the sentence, inasmuch as the whole suspension would not have served the sentencing principle of deterrence, having regard to the maximum sentence set down by the Oireachtas.
Held by the Court that such was the gravity of the offence that a punishment involving the hard treatment that goes with actual deprivation of liberty was required, and was deserved. The Court held that while the assault was not a penetrative one, it was one that had profound and long-lasting consequences for the victim; moreover, the circumstances in which it was perpetrated were highly aggravated and that was relevant to disposition. The Court accepted that what occurred may have been aberrational, but even if that was so the circumstances of it were such that it required not simply to be deprecated but punished, both for the effect that would have on the offender himself but also for its general deterrent effect, as had been urged upon the Court by counsel for the applicant. The Court held that the respondent was entitled to a substantial discount from the nominated headline sentence to reflect the mitigating circumstances in his case, but it was wrong, and an error of principle, to go so far as to descend below the custodial threshold. The Court held that a custodial sentence was required in the case and to have suspended the headline sentence in its entirety represented an error of principle; it exceeded the sentencing judge’s legitimate margin of appreciation having regard to the circumstances of the case and the result was a sentence that represented a substantial departure from the norm. The Court quashed the sentence imposed by the court below and proceeded to a resentencing of the respondent.
The Court nominated a headline sentence of 4 years’ imprisonment. From this the Court discounted by 2 years to reflect the substantial mitigating circumstances in the case. To take account of the fact that there had been some delay in bringing the application before the court, and to incentivise the respondent’s work towards addressing his alcohol and substance abuse issues, the Court suspended 6 months of sentence. The Court held that the conditions of the suspension were to be the same as were imposed by the court below and the sentence was to date from the 10th of April 2023.
Appeal allowed.
JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 27th of March 2023.
The present application before the Court has been brought by the Director of Public Prosecutions (i.e. “the applicant” or “the Director”), she having formed the view that the sentence imposed upon B.O'S (i.e. “the respondent”) by the Circuit Criminal Court for the Eastern Circuit and County of Louth on the 24th of February 2022 was unduly lenient.
The respondent had appeared before the said Circuit Criminal Court on the 8th of October 2021, on which date he was arraigned and subsequently pleaded guilty to count no. 1 on the indictment (LHDP0007/2021), specifically a count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001. A further charge of causing a child to watch sexual activity contrary to s. 6(1) of the Criminal Law (Sexual Offences) Act 2017 was also preferred against the respondent on the same indictment, but that count was abandoned following a nolle prosequi which was entered into by the prosecution on the day of sentencing for the sexual assault count.
Having pleaded guilty to the foregoing count, which plea proved satisfactory to the Director, the matter was adjourned until the 11th of January 2022, on which date the sentencing hearing was listed for the 24th of February 2022. On that date, the respondent was sentenced to 4 years' imprisonment on count no. 1, which custodial sentence was suspended in its entirety for a period of 4 years, subject to certain probation conditions, namely, to keep the peace and be of good behaviour for the length of his probation period, to engage with Probation Services and comply with all their instructions, and to engage with addiction services.
At the sentencing hearing of the 24th of February 2022, a Detective Garda Sharon Meredith gave evidence in relation to the factual background of the respondent's offending. The particulars of the complaint outlined by Garda Meredith were described with reference to a statement arising from a video-recorded interview of the complainant conducted by members of An Garda Síochána in accordance with s. 16(1)(b) of the Criminal Evidence Act 1992.
Garda Meredith identified the relevant time period as spanning the night of the 5th of October 2019 into the morning of the 6th of October 2019. On these dates, the complainant, who was born in 2007 (approximately aged 12 years at the time of the offending), was enjoying a sleepover at a dwelling-house in a named town. This residential property was the home of the complainant's aunt and her partner, the respondent.
That night, the complainant, her parents, and her sibling attended at this dwelling-house, the idea being that the adults would enjoy a games night and that the children assembled there would enjoy a sleepover. Among the adults assembled there that night included the complainant's parents, her aunt and the respondent, and other relations. The children in attendance included the complainant, her sibling, a child of the respondent, and two other cousins. The children ranged in age from approximately 8 to 12 years.
On the night of the 5th of October 2019, the children had fallen asleep in the sitting room on the ground floor of the dwelling-house, scattered between couches and the floor. The contents of the complainant's videorecorded statement detailed how the complainant was on the sofa in the sitting room of the dwelling-house with the other children watching films when she fell asleep while using her mobile phone. The respondent came into the sitting room in an intoxicated state (he had been drinking vodka) and smelling of cigarettes and sat on the edge of the sofa. He initially attempted to show her some lewd material, but his focus turned to touching the complainant, as the complainant put, he touched “ like down here between my legs and then up here beside my chest and all”. He had started by touching her over her clothes, and she awoke to the cold touch of his left hand slipping underneath both her pyjama trousers and underwear and touching the top of her vagina. The complainant averred that she had asked the respondent to desist from this touching, slapping his hand away and saying, “ please don't”. The respondent tried to put his fingers near her vaginal area, between her legs and rubbed her upper thighs. The complainant described that she had fallen back asleep briefly but awoke once more to the respondent trying to put a hand up her pyjama top to touch what she described as “ the boob area”, and she pointed to her breast area on her own person in the interview.
In cross-examination, it was confirmed by Garda Meredith that no digital penetration of the complainant's vagina occurred.
The complainant further averred that the respondent had tried “ to unbuckle his trousers and zip it down and tried to you know, taken down like his boxers and all, but before he did, I asked him please not to”. The respondent, who in unbuckling his trousers had his underwear in hand also, pulled back up his trousers. He was standing at a right angle to the complainant who was lying down on the sofa at this point, and he was “ hovering over the sofa a wee bit”. The complainant recalled the respondent saying into her ear, “ promise you won't tell anyone about this”., “The complainant agreed to do so, saying “ okay”, but privately thought to herself that she was going to tell her uncle, who she knew was a “ counsellor” by profession. The respondent tendered €20 for her silence, saying “ take this” and insisting...
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