Director of Public Prosecutions v G.S.D.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 09 June 2023 |
| Neutral Citation | [2023] IECA 152 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 23/2022 |
[2023] IECA 152
Edwards J.
Kennedy J.
Burns J.
Record Number: 23/2022
THE COURT OF APPEAL
Sentencing – Defilement of a child under fifteen years of age – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, on the 11th January 2022, was sentenced to five and a half years’ imprisonment with the final eighteen months suspended for one count of defilement of a child under fifteen years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006, as amended. The sentencing judge noted the aggravating factors as the significant age difference, that the appellant was fully aware of that age difference, the very young age of the injured party, premeditation, that the sexual act itself was of a gross and invasive nature and that it persisted for a significant period of time and involved the use of force and compulsion. The judge also had regard to the injured party’s victim impact statement and commented that the offence had a severe and negative psychological impact on her. The court took into account that the appellant was a juvenile at the time of the commission of the offence, and noting the aggravating factors, a headline sentence of seven years’ imprisonment was nominated. In terms of mitigation, the judge noted the appellant’s lack of previous convictions, that he had not come to adverse attention since the offence, his plea of guilty, that there was some level of cooperation with the investigation, that he displayed some remorse and shame for his actions, that he has a good record of employment and that he enjoyed very strong family support. In recognition of those mitigating circumstances, the headline sentence of seven years’ imprisonment was reduced to one of five and a half years’ imprisonment. Having regard to the young age of the appellant, the need for rehabilitation and in order to incentivise that rehabilitation, the court suspended the final eighteen months of the five-and-a-half-year sentence, leading to an effective sentence of four years’ imprisonment. The appellant appealed to the Court of Appeal against severity of sentence. Two issues of concern were raised at the hearing: firstly, that inadequate account was taken of the appellant’s age at the time of the offending in ameliorating his moral culpability as part of the nomination of the headline sentence; and secondly, that insufficient discount was afforded for mitigation.
Held by the Court that the aggravating factors were many; the age disparity, the tender years of the child, an element of pre-mediation, the coercive element and the persistence of the appellant in continuing with his actions despite the injured party’s protestations. The Court noted that the appellant was seventeen years old at the time and so the degree to which his moral culpability was reduced by virtue of his age was less than that which would be afforded to a younger person. The Court believed that the nominated headline sentence of seven years was at the outer margins of the judge’s discretion, but within the margin of appreciation afforded to the sentencing judge in light of the aggravating factors. The Court held that the coercive and persistent elements and the fact that the injured party was only twelve years old elevated the gravity of the offending. The Court held that the discount afforded for mitigation was significant, reducing the sentence from one of seven years to that of five-and-a-half years; the judge then suspended eighteen months in order to incentivise rehabilitation and enable attendance on various programs. Whilst the Court agreed the headline nominated was on the high side, when looking to the ultimate carceral portion of the sentence, that of four years’ imprisonment, the Court could not agree with the appellant that the sentence was too severe.
The Court found no error in principle and dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered ( ex tempore) on the 9 th day of June 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against severity of sentence. On the 11 th January 2022, the appellant was sentenced to five and a half years' imprisonment with the final eighteen months suspended for 1 count of defilement of a child under fifteen years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act, 2006, as amended.
. The offence occurred on the 10 th November 2017, on which date, the appellant was aged 17 and the injured party was aged 12. The injured party and a friend met with the appellant and his friend.
. The appellant told the injured party that he wished to speak with her alone. He took her by the hand and led her behind a container where he started to kiss her. The injured party pushed him away and told him to stop.
. The appellant then pulled his trousers down and the injured party once again told him to stop, stating that: “ this is so awkward…I'm in first year and you're in sixth year”, to which the appellant responded: “ so nobody needs to know.” The appellant proceeded to push the injured party to the ground and forced her to perform oral sex on him until he ejaculated onto her clothing. Throughout the incident, the injured party asked the appellant to stop. The injured party's jacket was forensically examined, and semen was found on the sleeve of same which matched the DNA of the appellant.
. The offending came to light after the injured party told a friend who repeated it to people at school. The injured party was questioned by the school and became upset.
. On the 20 th November 2017, the appellant attended the Garda Station with his father where he made a voluntary cautioned statement. He stated that he had kissed the injured party and that it was consensual.
. The appellant was arrested on the 5 th April 2018. In interview, the appellant denied knowing the age of the complainant or that she had asked him to stop. He suggested that the injured party had consensually touched him but that there had been no ejaculation. He later conceded that there had been ejaculation and that he had known the complainant to be in “ first or second year” and therefore “ around thirteen.”
. The appellant was 21 years of age at the time of sentencing. He has no previous convictions.
. The sentencing judge noted the aggravating factors as the significant age difference, that the appellant was fully aware of this age difference, the very young age of the injured party, premeditation, that the sexual act itself was of a gross and invasive nature and that it persisted for a significant period of time and involved the use of force and compulsion. The judge also had regard to the injured party's victim impact statement and commented that the offence had a severe and negative psychological impact on her.
. The court took into account that the appellant was a juvenile at the time of the commission of the offence, and noting the aggravating...
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