Director of Public Prosecutions v S.H.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 11 July 2023 |
| Neutral Citation | [2023] IECA 206 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 236/2022 |
[2023] IECA 206
The President.
McCarthy J.
Kennedy J.
Record Number: 236/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) on the 11th day of July 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against severity of sentence. On the 17th November 2022, the appellant was sentenced to an effective sentence of six and a half years' imprisonment for the sexual offending of her son.
. The offending can be divided into two tranches, the first tranche between 1984 and 1987; indecent assaults when the injured party was aged between zero and 3 years and the second between 1992 and 1995; sexual assaults, when he was aged between 7 and 11 years approximately.
. The appellant pleaded guilty to count 1 (indecent assault) on the arraignment date and entered further pleas subsequently to the indecent assault offences relating to the first time period. A trial date was fixed for the 20th June 2022 and on that date, further pleas were entered to the sexual assault offences relating to the second period. A sentence of six years' imprisonment was imposed on count 1, to reflect that period of offending and a sentence of two years' imprisonment was imposed on count 14, to reflect that period of offending. The sentence of 2 years was imposed on a consecutive basis. Twelve counts of indecent assault and three counts of sexual assault were taken into consideration. 18 months of the sentence was suspended.
. The latter period of offending became known when the injured party attended at a Garda Station in late 2017 and made a formal statement of complaint.
. The injured party recalled an incident occurring when he was lying in his mother's bed under the covers with her where she used his arm for sexual gratification. He was about 7 years old. This type of conduct continued for several years with a frequency of three times a month. The offending including using his body, arms or leg for the purposes of self-gratification.
. The injured party also disclosed matters to his family. The appellant expressed shock and denied the allegations flatly. Her husband continued to ask the appellant about the injured party's complaint and she admitted the offending to him. It transpired also that her sister in and around 2000 had complained to the Gardaí that she had seen the appellant touching the injured party inappropriately when he was a baby. When asked about this at that time by the Gardaí, she denied such conduct and no prosecution was initiated due to the absence of independent evidence. When questioned by her husband following her son's allegations, she made admissions to him regarding her earlier misconduct.
. The appellant then attended One in Four in November 2017 and made admissions. Information was exchanged between One in Four, Tusla and An Garda Síochána and the admissions made during the course of the programme, the admissions to her husband and to the Gardaí formed the basis for the charges in respect of the early period of the injured party's life. It was accepted in evidence in the court below that without those admissions, it would not have been possible to proceed with the prosecution of the earlier periods of offending.
. She attended the Garda Station voluntarily in December 2018 following her son's complaint regarding the offending between 1992 and 1995 and it seems that she was extremely distressed and she was confused in terms of the timeframe. This was explained at the appeal hearing by Mr Kennedy SC for the appellant, in that the appellant felt the inappropriate incidents had occurred at an earlier time; namely when the injured party was a baby. She was again interviewed by the Gardaí in March 2019, and she ultimately made certain admissions.
. The impact on the injured party is understandably severe and long lasting. He read a moving victim impact report in the court below.
. The judge observed that the appellant used her son over these periods for her own gratification and that the abuse was persistent and prolonged. The judge went on to remark that what was involved was a “ huge betrayal” on the appellant's part in relation to her son, who was entitled to unconditional love and protection from his mother. He stated that the appellant had a high degree of moral culpability and we entirely agree with this assessment.
. The judge acknowledged the pleas of guilty; the appellant's co-operation, admissions, and absence of previous convictions; her long work history and contributions to her community, her own personal history and circumstances as a person who was, herself, previously sexually abused. The sentencing judge further took note of the rehabilitative steps the appellant had taken to address the underlying causes of her misbehaviour. He noted the appellant's numerous attendances with therapists and experts in this area, her undergoing of multiple sessions of treatment and therapy to deal with her underlying problems. He also acknowledged the testimonials and references handed in to the court below.
. The first tranche of offences carries a maximum penalty of 10 years' imprisonment and the maximum sentence for the second tranche is one of 5 years' imprisonment. In respect of count 1, the indecent assault, the sentencing court imposed a custodial term of 6 years, taking into account all of the offences involved in the first tranche. In respect of counts 14, 15, 16, and 18 (sexual assaults), a custodial disposal of 2 years was imposed, the remaining counts taken into consideration. The sentencing judge further ordered that these sentences were to run consecutively, and that the final 18 months of the aggregate 8 year custodial sentence were to be suspended to aid the appellant's rehabilitation and reform.
. Accordingly, the appellant was sentenced to a global sentence of 8 years' imprisonment, the final 18 months thereof suspended on express terms that she be of good behaviour while in custody and for the period of 18 months post-release, and that for a period of 1 year post release she places herself under the supervision of the Probation Service and abides by that service's instructions and directions.
. The appellant appeals the severity of her sentence on the following six grounds:-
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“(i) The learned sentencing Judge erred in principle in failing to set a headline sentence in respect of the offending behaviour.
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(ii) The learned sentencing Judge erred in principle in attaching any or insufficient weight to the antiquity of the offences.
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(iii) The learned sentencing Judge erred in principle in failing to attach any or significant weight to the Appellant's extensive efforts to rehabilitate herself in the time between the commission of the offences and the sentence date.
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(iv) The overall sentence imposed by the learned sentencing Judge was excessive in all the circumstances and failed to have adequate or sufficient regard to the principles of proportionality and totality.
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(v) The learned sentencing Judge erred in principle in failing to take proper and/or adequate account of the mitigating factors in determining what reduction ought to be applied to the appropriate sentence on taking such mitigating facts into account.
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(vi) The learned sentencing Judge failed to have any or any adequate regard to the psychological report and testimonials that were before the Court.”
. The appellant submits that it is unclear how the court arrived at the sentence imposed as the sentencing judge failed to identify a headline sentence based on an assessment of the seriousness of the offences taking into account aggravating factors before applying mitigation.
. Reliance is placed on the following excerpt from People (DPP) v Farrell [2010] IECCA 116:-
“A sentencing court must first establish the range of penalties available for the type of offence and then the gravity of the particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be imposed in principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within that ambit that the mitigating factors fall to be considered.”
. People (DPP) v Kiely [2016] IECA 252 is also cited, as are the Supreme Court authorities in People (DPP) v Molloy [2021] IESC 44 and People (DPP) v MJ [2022] IESC 50.
. In essence, it is said that it is unclear how the court arrived at the sentence imposed and the allowance for mitigation.
. The respondent says it is abundantly clear that the ultimate sentence imposed reflected not only the gravity of the offending but also the mitigation in the case. It is submitted that in imposing sentence, the judge summarised the mitigating factors and emphasised that he “ must” take them into account.
. It is said that there is a reluctance to rigidly insist upon the adoption of such a procedure in every case. Reliance is placed on People (DPP) v O'Byrne [2013] IECCA 93 as follows:-
“This Court does not consider that sentencing should be approached in an overly punctilious or pedantic way. The formulaic repetition of a checklist is not necessarily the sign of a proper sentence. The function served by having standard steps and criteria which are expected in any sentence is in the first place to remind the sentencer of the factors which need to be addressed, secondly to explain to interested parties and the public at large the reasoning process by reference to which the particular sentence is arrived at, and thirdly thereby to facilitate review in an appropriate case....
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