Director of Public Prosecutions v D.H.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 06 July 2023
• Neutral Citation: [2023] IECA 203
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 233/2021

Between/

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

Respondent

and

D.H.

Appellant

[2023] IECA 203

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Record No: 233/2021

THE COURT OF APPEAL

Sentencing – Sexual assault – 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 Dublin Circuit Criminal Court on the 13th of December 2021. The appellant had been convicted on the 5th of October 2021, following a jury trial, of one 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. He was subsequently sentenced to 3 years and 6 months’ imprisonment, with the final 6 months thereof suspended on express conditions. The core complaint advanced by counsel on behalf of the appellant in the context of the severity of sentence appeal was that the sentencing judge erred in her assessment of the gravity of the offending, with the consequence being that she nominated a headline sentence that was excessive.

Held by the Court of Appeal that it agreed with counsel for the appellant that the headline sentence nominated by the court below was too high. The Court held that this was an error of principle, and accordingly quashed the sentence imposed by the court below and proceeded to re-sentence the appellant. In re-sentencing the appellant the Court intended to do so without reference to the fact that he was proceeded against initially in the District Court. The Court found that there may have been many reasons why the respondent, the Director of Public Prosecutions, may have been disposed to acquiesce in that, and it did not follow that her reasons would necessarily have been confined to the Court’s view of the gravity of the case. The Court held that the fact that the case was ultimately prosecuted on indictment in the Circuit Court was because the appellant opted for trial on indictment in the Circuit Court; one consequence of doing so was that he faced a higher range of potential penalties in the event of being convicted. The point was made to counsel in the course of the appeal hearing that the Court of Appeal hears very many sexual assault and indecent assault cases. Based on the Court’s extensive experience in that regard it concluded that the appropriate headline sentence in the case was more properly one of 2 years and 6 months’ imprisonment.

The Court held that the most substantial potential mitigating factor to be discounted from the headline sentence was not available to the appellant in circumstances where he contested his trial and did not plead guilty; however, as the sentencing judge at first instance pointed out he had no previous convictions, and had otherwise lead a prosocial life. The Court noted that he had worked in various employments and had suffered a number of adversities in life, including being homeless for some periods. The Court held that he was also entitled to have taken into account the fact that he would be on the Sex Offenders Register in consequence of his conviction. To take account of those factors, the Court discounted from the headline sentence by 6 months, leaving a net sentence to be served of 2 years’ imprisonment. In circumstances where the appellant did not accept the verdict of the jury, and perhaps consistent with that had not indicated a willingness to engage with the Probation Service for the purposes of undergoing a sex offenders rehabilitation programme, the Court did not think it was appropriate to suspend any portion of the sentence it had imposed to incentivise rehabilitation.

Appeal allowed.

JUDGMENT of the Court ( ex tempore) delivered by Mr. Justice Edwards on the 6 ^th of July 2023.

Introduction

1 . Before this Court is an appeal brought by D.H. (i.e. “the appellant”) against the severity of the sentence imposed on him by Dublin Circuit Criminal Court on the 13 ^th of December 2021. The appellant had been convicted on the 5 ^th of October 2021, following a jury trial, of one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (i.e. “the Act of 1990”), as amended by s. 37 of the Sex Offenders Act 2001. He was subsequently sentenced to 3 years and 6 months' imprisonment, with the final 6 months thereof suspended on express conditions:

“ 1. that he will keep the peace and be of good behaviour towards all the People of Ireland from this date for the period of his imprisonment and for a further period of 6 months from the date of his release from custody on this sentence and 2. That he will engage in sexual offenders rehabilitation treatment as directed; AND FURTHER that he will come up if called on to do so at any time to serve the balance of the sentence imposed, such balance suspended on him entering into this Recognisance.”

2 . The core complaint advanced by counsel on behalf of the appellant in the context of the herein severity of sentence appeal is that the sentencing judge erred in her assessment of the gravity of the offending, with the consequence being that she nominated a headline sentence that was excessive.

Factual Background

3 . The Court has already summarised the facts of this case in its earlier judgment dismissing D.H.'s appeal against conviction – see The People (DPP) v. D.H. [2023] IECA 170 – and this judgment may be read in conjunction with that judgment, and with this in mind it should be stated that the sentencing judge had also presided over the trial of the appellant. For the purposes of the present judgment, this section will provide a precis of the evidence of Detective Garda David Smith (otherwise “D/Garda Smith”) tendered to the sentencing court on the 13 ^th of December 2021.

4 . At the time of offending (on a date in or around late 2013), the appellant was residing with his then partner and her daughter, the complainant, at their house in a village in Leinster and was in effect in loco parentis to the complainant. The complainant was approximately 12 years of age, the appellant was aged 44 years. The complainant and the appellant were alone in the living room area of the dwelling at a time between 15:00 and 16:00. The complainant was home after school, and her mother and younger sibling had left the house to go to the shops. She was seated on a sofa against the wall of the living room and the appellant was seated on a sofa near the fireplace. The complainant went to sit beside him and asked for a foot massage, placing her calves on his lap. The appellant began by massaging her feet, before proceeding to move his hands up over her trousers to touch her vagina, then under her trousers and over her underwear, and then under her underwear where he rubbed her vagina. The complainant described how she did not move or say anything and tried to think of an excuse to move: “ She froze and looked at the clock. She used the excuse of homework and ran to her room.” She recalled that she was crying, and that the appellant followed her to her room where he hugged her and asked, “ Did I touch your forky parts?”, which she took to mean her vagina.

5 . The complainant did not make her complaint until approximately a year later in 2014. At this point, she was in her first year of secondary schooling. Following lessons in sexual education in which she was taught about sexual abuse, she realised that what had happened to her was wrong. When asked why she had waited a year before making the complaint, she responded by stating that she was “ scared” that nobody would believe her. There was further a suggestion that she had a difficult relationship with her mother and that the complaint was motivated by her desire to live with her father. The complainant accepted that her relationship with her mother was difficult but denied that there was any such motivation behind the making of the complaint.

6 . She initially made disclosures to two of her schoolfriends (referred to in the judgment in relation to the appeal against conviction as “W” and “S”, respectively), which schoolfriends gave evidence at trial. The complainant also made disclosures to her school chaplain, following which the school notified her mother who came to collect her. Afterwards, the complainant recalled a confrontation between her mother and the appellant during which she overheard, while she was in the room next door, the appellant state that he “ didn't F-ing do it”. She averred that following this confrontation the appellant came into the room where she was, that he was angry, and that he grabbed her by the arm and pushed or pulled her across the room.

7 . The complainant's paternal grandfather also gave evidence at trial. He recalled having been contacted by the complainant's mother at the time of the disclosure and he described how the complainant was dropped off outside his house alone, “ left on the road” with a suitcase and black bags of belongings. The complainant moved in with her grandfather. Five days after this, the complainant's grandfather contacted his son, the complainant's father, who lived in London, regarding the disclosures. Following this revelation, her father flew home to Ireland and brought the complainant to a Garda station in November 2014 for the purpose of making a complaint. Ultimately, the complainant moved to London to live with her father, and at the time of sentencing it was said that she continues to reside with him.

8 . In a Probation Report dated the 8 ^th of December 2016 (i.e. “the 2016 Probation Report”), it is stated that D/Garda Smith informed the probation officer that the appellant was not co-operative at interview. At trial, the appellant gave evidence in his defence, denying that the sexual assault occurred.

Victim Impact Statement

9 . The complainant prepared a poignant victim impact...