Director of Public Prosecutions v P.P.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 09 June 2023
• Neutral Citation: [2023] IECA 169
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 48/2022

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

P.P.

Appellant

[2023] IECA 169

Edwards J.

Kennedy J.

Burns J.

Record No: 48/2022

THE COURT OF APPEAL

Sentencing – Sexual offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant appealed to the Court of Appeal against the severity of the sentence imposed on him by the Central Criminal Court on the 11th of February 2022. That sentence, amounting to an effective and global custodial sentence of 5 years and 6 months, comprised: consecutive custodial sentences of 3 years and 6 months imposed on count 1, which was a count of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981, and 3 years on count 5, which count was a count of indecent assault on a female contrary to Common Law and as provided for by s. 10 of the 1981 Act; and concurrent custodial sentences of 3 years on count 7, a count of s. 10 indecent assault, 2 years on counts 3 and 4, which were counts of indecent assault contrary to s. 6 of the Criminal Law (Amendment) Act 1935, and count 11, a count of s. 10 indecent assault, and 15 months on count 10, which was a count of s. 10 indecent assault. The remaining counts on the indictment were taken into consideration by the court below when imposing sentence. Those remaining counts comprised two counts (counts 2 and 9) of s. 6 indecent assault, and two counts (counts 6 and 8) of s. 10 indecent assault. The final 12 months of the global custodial sentence of 6 years and 6 months was suspended on certain conditions. The appellant advanced the following arguments in support of his application: first, that the sentencing judge erred in structuring the sentence to incorporate a consecutive element in the circumstances of the case and/or to the extent that he did so; and second, that the sentences imposed did not adequately reflect the mitigation which the appellant was entitled to have taken into account (most particularly, the appellant’s mental ability/capacity, his age at the time of offending, his genuine remorse, and the fact that he came to no adverse attention following the commission of the offences).

Held by the Court that it found no error of principle in the approach of the sentencing judge. The Court regarded the sentencing judge’s remarks as well-explained and well-referenced. The Court found that he was conscientious in how he approached the case and assiduous in attempting to be fair to the appellant. The Court found that the case was very serious and the gravity of the offending was considerable. The Court held that due account was taken of the personal circumstances of the offender but this was not a case in which a custodial sentence could have been avoided; nor was the case one in which consecutive sentencing could properly have been avoided. The Court was satisfied that the sentences actually imposed were appropriate and that the overall sentencing package was structured in a careful and considered manner that was entirely within the sentencing judge’s discretion. The Court did not criticise it in any way.

The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 9th of June 2023.

Introduction

1 Before this Court is an appeal brought by P.P (i.e. “the appellant”) against the severity of the sentence imposed on him by the Central Criminal Court on the 11th of February 2022. This sentence, amounting to an effective and global custodial sentence of 5 years and 6 months, comprised:

• • Consecutive custodial sentences of 3 years and 6 months imposed on count no. 1, which was a count of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 (i.e. “the Act of 1981”), and; 3 years on count no. 5, which count was a count of indecent assault on a female contrary to Common Law and as provided for by s. 10 of the Act of 1981;

• • Concurrent custodial sentences of 3 years on count no. 7, a count of s. 10 indecent assault; 2 years on count nos. 3 and 4, which were counts of indecent assault contrary to s. 6 of the Criminal Law (Amendment) Act 1935 (i.e. “the Act of 1935”), and count no. 11, a count of s. 10 indecent assault, and; 15 months on count no. 10, which was a count of s. 10 indecent assault.

2 The remaining counts on the indictment were taken into consideration by the court below when imposing sentence. These remaining counts comprised two counts (count nos. 2 and 9) of s. 6 indecent assault, and two counts (count nos. 6 and 8) of s. 10 indecent assault.

3 The final 12 months of the global custodial sentence of 6 years and 6 months was suspended on certain conditions, namely:

“1. that he submit himself for assessment in respect of any programme directed towards addressing his offending as may be considered suitable by the Probation Service.

2. that he does not approach or have any contact with any of the complaints (sic) in the case or their families either himself or through a third parties (sic) by telephone, letter, social media or otherwise

3. that he not be in the company of any child under the age of eighteen years unless in the company of another adult

4. that he comply with the directions of the Probation Service.

5. that he attend all appointments with his Probation Officer.

6. that he keep the Probation Service informed of any change in his place of address and he will keep the peace and be of good behaviour towards all the people of Ireland during his periods of imprisonment and for the said period of 3 years from the date of his release.

And further that he will come up if called upon to do so at any time during the said period of 3 years to serve the portion of the sentence of the Court this day imposed but suspended on his entering into this recognizance. […]”

4 The arguments the appellant advances in support of his application can essentially be distilled into two distinct grounds: First, that the sentencing judge erred in structuring the sentence to incorporate a consecutive element in the circumstances of the case and/or to the extent that he did so, and; second, that the sentences imposed did not adequately reflect the mitigation which the appellant was entitled to have taken into account (most particularly, the appellant's mental ability/capacity, his age at the time of offending, his genuine remorse, and the fact that he came to no adverse attention following the commission of the offences).

Factual Background

5 At the sentencing hearing of the 7th of February 2022, a Detective Garda Colin Fitzpatrick (otherwise “D/Garda Fitzpatrick”) gave evidence in relation to the factual background to the appellant's offending, which was perpetrated against five complainants, who were children at the time the various offences were committed, and which occurred in and around the vicinity of the appellant's family home which was situated in a housing estate in the County of Dublin. The complainants are sisters. For the purposes of this section of the present judgment, setting out the evidence before the court below, these complainants shall be referred to respectively as complainant A, B, C, and so forth.

Complainant A

6 The counts which relate to complainant A were count nos. 5, 6, and 7, three counts of s. 10 indecent assault, and they occurred in or around the year 1985 when she was approximately 8 years old. Complainant A was good friends with, and neighbour to, a half-sister of the appellant (referred to for the purposes of the present judgment as “H.S.”) and lived with him in the family home. One day, in and around the time that complainant A had made her first confession and her first communion, the complainant was in the back garden of the appellant's family home playing hide and seek with H.S. when she was invited by the appellant to come into one of the make-shift shacks or sheds he had built for the purpose of housing rabbits. In the small confines of this dark shed, the appellant anally raped her. She recalled how she felt sore around her bottom following the event, and that she did not know what to do when it happened, so much so that she “ froze” and did not scream as the incident unfolded. This event forms the basis of count no. 5. The appellant was aged between 16 and 17 years at the time of offending.

7 The next event occurred in the context of a sleepover with H.S. at the appellant's home. While asleep in H.S.'s bedroom, which H.S. shared with another sister of the appellant, the appellant came into the bedroom and, having called complainant A, brought her out onto the landing whereupon he told her to get down on all fours, and then proceeded to anally rape her. Immediately following this incident he told complainant A, “ Better not to tell anybody”, which she complied with for many years. This event forms the basis of count no. 6. The appellant was aged between 17 and 19 years at the time of offending.

8 Count no. 7 involved an incident of oral rape committed by the appellant which took place in the confines of the front sitting room of the appellant's home. While this occurred, the complainant was seated and the appellant was standing, all the while looking out the front window in case his mother and her male friend would come back. Complainant A recalled in her statement to gardaí that she was “ very scared and afraid”, that she did not understand what was happening, but that she knew it was wrong and that she was afraid to tell anyone. The appellant was aged between 17 and 19 years at the time of offending.

9 Following these incidents, complainant A managed to avoid any of the appellant's invitations to be alone with him. She considered that these events affected her, inasmuch as she became nervous and shy around men. While she...