Director of Public Prosecutions v N.B.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 22 June 2023 |
| Neutral Citation | [2023] IECA 201 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 153CJA/2022 |
In the Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993
[2023] IECA 201
Edwards J.
McCarthy J.
Kennedy J.
Record No: 153CJA/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 22 nd of June 2023.
. Before this Court is an application brought by the Director (i.e. “the applicant”) pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed on N.B. (i.e. “the respondent”) on the basis that it was unduly lenient.
. On the 15 th of July 2022, and following a guilty plea entered by the respondent on the 18 th of May 2022 (which was entered on an agreed basis that the full facts of all four counts on the indictment would be provided to the sentencing court), the Eastern Circuit Criminal Court sitting in Bray, Co. Wicklow sentenced the respondent to 2 years' imprisonment, suspended in its entirety, in respect of one count (count no. 3 on the indictment Bill No. WWDP0039/2019) of sexual assault contrary to Common Law and as provided for by s. 37 of Sex Offenders Act 2001. It should be stated that three further charges (count nos. 1, 2, and 4) of sexual assault were preferred against the respondent, but that in respect of each one a nolle prosequi was entered into in accordance with s. 12 of the Criminal Justice (Administration) Act 1924.
. The terms of the respondent's suspended sentence were set out in the Rule of Court:
“[…] the conditions being that he will keep the peace and be of good behaviour towards all the people of Ireland for a period of 3 years from this date and with conditions as set out in the Probation Report of 12 th of July 2022, said conditions being he be placed under Probation Supervision, he attends all appointments with his supervising Probation Officer, he attends for assessment and treatment in any Sex Offender Treatment Programme as deemed suitable by the Probation Service and that he follows all lawful directions by his Probation Office, particularly in relation to risk management in the community. Further conditions that he stay away from the victim and her family and there be no contact in any way shape or form with the victim, in person or electronically AND FURTHER that he will come up if called on to do so to serve the sentence imposed, but suspended on him entering into this Recognisance.”
. The factual background to the respondent's offending is set out herein with reference to the evidence tendered to the sentencing court by a Garda Leanne Kirwan (otherwise “Garda Kirwan”) as detailed in a transcript of those proceedings provided to this Court. As a preliminary observation, it should be stated at this juncture that there was a single complainant in this case. To preserve her anonymity, she shall be simply referred to as “the complainant”.
. As indicated in the respective particulars of the various counts on the indictment, the offending complained of occurred over a period stretching from late spring 2016 to early autumn 2017. During this period, the complainant was aged approximately between 12 and 14 years. She made the complaint when she was aged 13 years and was interviewed by specialist child interviews on account of her age. It would appear from a reading of the transcript of 15 th of July 2022 that the respondent was in a relationship with the complainant's mother at the time of offending, and that he was father to one of the complainant's younger siblings. In cross-examination, it was revealed that this relationship had been ongoing since 2014 but the date of the relationship's end was unclear – the Probation Report stating it ended in March 2018 but Garda Kirwan stating in evidence that it ended around the time of the complaint. Most of the offending complained of occurred within the confines of the complainant's family home, situated in a village in Leinster.
. Garda Kirwan described the various incidents complained of. In total there numbered four incidents, which are now summarised below:
. The first incident described by Garda Kirwan occurred in the family home of the complainant. The complainant was about to go for a shower in the ensuite of her mother's bedroom. The respondent pulled her onto the bed and there put his hands up her top. Garda Kirwan averred that the respondent did not let the complainant go until he heard the sound of a stairgate open at the bottom of the stairs and, believing that someone was coming, he released her from his grasp.
. The second incident described by Garda Kirwan also occurred in the family home of the complainant, specifically in the sitting room thereof. The complainant was seated on a couch when the respondent came into the room. He put his arms around her and proceeded to sit on her, placing his two legs on top of her, and there kissed her.
. The third incident described by Garda Kirwan occurred at an unknown location but took place within the confines of the driver's cabin of the respondent's articulated lorry. The respondent was seated in the driver's seat, the complainant seated behind him in the rear compartment of the vehicle where she was told by him to go to sleep. The respondent continued to drive, but with his left arm he reached behind and rubbed the complainant on her legs, up and down inside her legs, up to her knee and onto her private parts. The touching occurred on the exterior of the complainant's clothing.
. The fourth and final incident described by Garda Kirwan occurred at the complainant's family home and in the context of a family barbeque. It was said that the respondent gave the complainant alcohol, and that after she had complained of being sunburnt, he rubbed after-sun lotion onto her back and then proceeded to rub it underneath her top and on her breast area.
. The complainant reported the appellant's misconduct to her mother not long after the offending occurred. From the transcript, it would appear that this disclosure occurred in the context of a conversation between the complainant's mother and the complainant regarding an explicit photograph her mother had found on her phone which was sent by the respondent along with an accompanying caption “ national no panties day”. The respondent had claimed that he had sent it to the complainant in mistake, and that it was actually intended for the complainant's mother.
. On the 21 st of July 2017, the complainant's mother contacted gardaí in relation to the complainant's disclosures and following the making of the complaint an investigation commenced. The respondent was arrested on the 5 th of February 2018 and was interviewed in relation to the allegations made against him. At the sentencing hearing, Garda Kirwan stated that nothing of probative value emerged from this questioning. The Probation Report tendered to the sentencing court stated that gardaí interviewed the respondent on two occasions. It was said that he was co-operative inasmuch as he had attended these interviews, but that on both occasions he made no admissions in relation to the allegations made against him.
. The respondent was returned for trial on the 18 th of September 2019, and the matter was adjourned on several occasions before finally being listed for trial on the 18 th of May 2022, on which date the respondent entered a guilty plea in respect of count no. 3 on the indictment on a full-facts basis. The matter was subsequently sent forward for sentencing on the 15 th of July 2022 on which date the Circuit Criminal Court heard evidence in relation to the offending and ultimately imposed sentence on the respondent.
. The complainant tendered a poignant victim impact statement to the sentencing court which was read into evidence by counsel on behalf of the prosecution. On account of its length, we do not intend to reproduce it in full here. Instead a summary is now provided.
. The complainant spoke of how once the respondent entered her family's life, she did not feel comfortable in her body or home. She described how during this time her relationship with her mother “ suffered badly”, and that both her and her mother lived in fear of the respondent. The complainant explained that the respondent was a “ father figure” but that he had abused this trust. The trauma the complainant experienced as a consequence of the respondent's misconduct adversely affected her schooling; gave rise to anxiety and fear in her, such as to necessitate the prescribing of medication, and; prevented her from leaving her home and communicating with others, to the detriment of her friendships that she had hitherto maintained. She averred that her biggest fear arising from the respondent's misconduct is that her younger brother, the respondent's biological son, might someday discover who is father truly is and what he had perpetrated against her, his older sister. She further stated that “ never in a million years” would she have thought that she would have had to deal with “ something so serious”, and that she had made the disclosures for the purposes of saving herself and her family.
. The respondent was aged approximately 25 to 26 years at the time of the offences the subject matter of the indictment. At sentencing, he was approximately 29 years of age.
. The respondent's conviction history was described by Garda Kirwan in evidence. He had two previous convictions recorded, both in relation to the same type of offence, breach of safety orders. The recipients of these safety orders were two different women, including the complainant's mother. The first conviction was dated the 17 th of...
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