Director of Public Prosecutions v Haig
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 31 October 2023 |
| Neutral Citation | [2023] IECA 299 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 31CJA/23 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2023] IECA 299
The President.
McCarthy J.
Kennedy J.
Record Number: 31CJA/23
THE COURT OF APPEAL
Sentencing – Sexual assault – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Haig, on the 17th June 2022, pleaded guilty to one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. On the 12th January 2023, he was sentenced to a period of 18 months’ imprisonment which was wholly suspended. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review of sentence on grounds of undue leniency. The three grounds of application were as follows: (1) that the sentence imposed was unduly lenient in all the circumstances of the case; (2) that the sentencing Judge failed to have regard for the aggravating factors in the case, including that the offence was perpetrated while the victim was asleep and that a knife or other object was used to cut off her clothes and underwear so as to gain access to her private parts; and (3) that the sentence was not in keeping with sentences for those type of offences as dealt with by sentencing courts and the Court of Appeal. It was the applicant’s view that the sentence imposed was unduly lenient, the headline sentence was insufficient to mark the gravity of the offending, and notwithstanding the mitigation available this was a case where a fully suspended sentence was inappropriate.
Held by the Court that the sentence imposed was unduly lenient and the applicant had shown that it was a substantial departure from the norm. The Court held that the sexual assault fell within the mid-range of gravity for the reasons identified by counsel for the applicant. The most significant feature in the Court’s view was that of the cutting of the complainant’s undergarments with a sharp object while she lay asleep. The Court held that this, contrary to the respondent’s suggestion, showed premeditation on the part of the respondent. The Court found that it may well be that he took the opportunity which he felt was there, but this did not remove the element of premeditation; finding and using a sharp object to cut away her tights and undergarments to enable him to gain access to her body. The Court found it significant that the injured party was asleep; this elevated the gravity of the offence and the respondent could not have removed her undergarments in the manner he did without her being unaware of his actions. The Court held that those factors brought the matter into the mid-range of gravity, thus rendering the sentence imposed unduly lenient and a substantial departure from the norm, justifying the Court’s intervention. Moreover, the Court was satisfied that the custody threshold was passed in the case and that in itself amounted to an error in principle justifying intervention. Consequently, the Court quashed the sentence imposed and proceeded to re-sentence de novo on a consideration of the evidence adduced at hearing and on foot of the submissions received by the Court.
The Court considered that the appropriate headline sentence could not be anything less than 5 years’ imprisonment. Applying the appropriate reduction for all mitigation, the Court reduced the headline sentence to one of 3 ½ years imprisonment. In order to foster and incentivise the respondent’s rehabilitation and to assist him in reintegrating into society upon his release, the Court suspended the final 12 months of his sentence for a period of 2 years on the condition that he remain under probation supervision for that period and comply with all directions from the Probation Service, that he attend the Safer Lives Programme or some other nominated program if considered suitable on assessment by the Probation Service, that he abstain from alcohol, and that he provide his address to the Probation Service and remain at that address.
Appeal allowed.
JUDGMENT of the Court delivered ( ex tempore) on the 31 st day of October 2023 by Ms. Justice Isobel Kennedy.
. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency.
. On the 17 th June 2022, the respondent pleaded guilty to one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990. On the 12 th January 2023, he was sentenced to a period of 18 months' imprisonment which was wholly suspended.
. The injured party was a non-national working in this country. At the sentencing hearing, the applicant outlined the background of the offending as follows; in the early hours of the 10 th March 2019, the injured party had been socialising with the respondent and his partner. They later returned to the couple's house. After some drinking and dancing in the house, the injured party fell asleep on the couch fully clothed. At approximately 6am, she awoke to find that her clothes had been removed and the respondent was lying naked on top of her. The injured party pushed the respondent away and told him that if he touched her again, she would kill him. She attempted to replace her underwear and tights which she had found on the floor of the kitchen but was unable to do so as she found that her tights and underwear had been cut off while she was asleep. Subsequent forensic examination confirmed that those items of clothing were cut with a sharp object like a knife or scissors.
. The injured party ran from the respondent's house to her friend's house who contacted the gardaí, she then attended a SATU for examination and later made a statement.
. At the sentencing hearing, the court heard that the injured party had returned home. She attended counselling but indicated that she did not wish to make a victim impact statement.
. The respondent was arrested by appointment, detained and interviewed. During the course of interview, he indicated that he had performed consensual oral sex on the injured party. However, he ultimately pleaded guilty on a full facts basis.
. The respondent gave a different version of events to the probation officer and to a psychologist, he explained that it took him a long time to deal with the situation, that he was ashamed and only after counselling did he realise the gravity of his actions.
. The garda stated during cross-examination that it was the respondent's recollection that he apologised three times to the injured party upon her waking to find him sexually assaulting her. The respondent also read his own letter of apology to the court wherein he stated that he felt utterly ashamed of his actions.
. The respondent was 39 years of age at the time of sentencing. He has no relevant previous convictions but has several convictions under the road traffic legislation. The court heard evidence of his family situation and personal circumstances.
. The psychologist's report states that the respondent's father was absent in his early years, that the respondent left school early and entered the navy. Dr Lambe states that the respondent started problematic drinking around the time of his father's death.
. The Probation Report inter alia outlines that the respondent informed the service that he has experienced periods of low mood, has a history of self-harm and suicidal ideation following the breakdown of a previous relationship.
. The sentencing judge considered as aggravating factors that the injured party was a guest in the accused and his partner's home, the effect on her, and the cutting of the underwear and tights.
. In mitigation, the judge took account of the respondent's age, plea of guilty, the absence of...
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