Director of Public Prosecutions -v- Lyons, [2014] IECCA 27 (2014)

Docket Number:282CJA/12
Party Name:Director of Public Prosecutions, Lyons
Judge:Murray J.
 
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THE COURT OF CRIMINAL APPEALMurray, J. [282CJA/12]Moriarty, J.Herbert, J.In the matter of Section 2 of the Criminal Justice Act, 1993BETWEEN/THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)PROSECUTOR/APPLICANTANDANTHONY LYONSACCUSED/RESPONDENTJUDGMENT of the Court delivered on the 31stday of July, 2014 by Murray J. (UNAPPROVED)Conviction and Sentence1. The respondent to this application, the accused Anthony Lyons, was convicted on 28th June, 2012 after a trial by judge and jury, of the offence 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. The offence occurred on the 3rd October, 2010. The accused had pleaded not guilty at the trial. He did not contest the essence of the complainant’s account of the sexual assault, but relied on a defence of involuntary intoxication due to the taking of prescribed medication. This was not accepted by the jury.2. In order to place the matter in context it may be noted that the Act of 1990, as amended, provides for two offences of sexual assault. Sexual assault contrary to s.2 of the Act, concerns the commission of an assault which is an indecent assault. Originally the Act of 1990 provided for a maximum term of imprisonment for this offence of 5 years, but this was amended to 10 years by the Act of 2001 with effect from 18th September, 2001.3. Section 3 provides for the offence of aggravated sexual assault which is defined as meaning a sexual assault that involves serious violence or the threat of serious violence, or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The acts committed by the respondent were not considered by the DPP to fall within the ambit of this s.3 offence, as the charge laid against the respondent was pursuant to s.2 of the 1990 Act, as amended.4. A sentencing hearing took place in the Circuit Criminal Court following conviction on 28th June, 2012 and subsequently on the 9th, 12th and 30th July, 2012. In addition to having all the facts and circumstances concerning the assault before him, the trial judge had a victim impact statement from the complainant, a psychologist’s report tendered on behalf of the accused and a probation officer’s report. He also heard garda evidence and evidence called on behalf of the respondent. At the conclusion of that hearing, the accused was sentenced to 6 years imprisonment with 5½ years of the sentence suspended. He was also ordered to pay the sum of €75,000 compensation to the victim pursuant to s.6 of the Criminal Justice Act, 1993. The suspended sentence was subject to the following conditions, namely, that the sum of €75,000 be paid within one month; that he enter into a bond to keep the peace and to be of good behaviour for a period of 2 years following his release; and that he be supervised for a period of 12 months post-release.The Application5. The applicant, the Director of Public Prosecutions, brought an application before this Court pursuant to s.2 of the Criminal Justice Act, 1993 and requested that the Court quash the sentence imposed by the court of trial on the grounds that it was unduly lenient.6. The application of the DPP pursuant to s.2 of the Act of 1993 was heard before this Court in November, 2013. However, the Court was then not in a position to finally determine the issues in that case, due to the sudden illness of one of the members of the Court. During that period of illness another member of the Court retired from the bench. Consequently, it was decided that the matter would be relisted for a complete re-hearing of the application of the DPP. This hearing took place on the 29th day of May, 2014. The Court reserved judgment.Background Facts and Circumstances of the Offence and Conviction7. At approximately 2.15 a.m. on the 3rd October, 2010 the complainant was walking along Griffith Avenue, Dublin. Earlier the previous evening she had attended a family event in a nearby hotel. Her evening out concluded in a nearby licensed premises which she left at about 2 a.m. It was about a 20 minute walk to her home from there. It was during the course of that walk home that the sexual assault occurred. As she was walking along one of the darker stretches on Griffith Avenue the complainant suddenly became aware of a man on her left. This startled her because she did not realise there was anyone behind her. She felt an arm go around her right side and the man said something like “Are you getting home safely”. She tried to shove him away but she was tackled to the ground falling face down. He was on her back and she was screaming. He kept trying to silence her. He put his hand around her mouth. She had her phone in her hand and was trying to use it. He tried to grab it. He managed to take the cover off the phone which may have led him to believe he had got the phone because he then stopped trying to get hold of it. She was wearing a heavy winter coat with a large hood, which was over her head. She still had her phone in her hand under the hood and was able to telephone the gardai. At this stage she could feel his hands down her front. He touched her breasts, outside her clothes with both hands. He groped her buttocks with his hand inside her underwear. He then struggled to get her underwear down and managed to pull it down to some extent. He put a hand between her legs and felt outside of her vaginal area and inserted fingers in her vagina.8. The assault went on for three or four minutes. The complainant managed to contact the gardai on the phone although in her panicking state she gave them an inexact location for the assault. Then she felt his weight lift off her for some reason. As soon as she realised this she ran as fast as she could with her underwear still partly down. A passing taxi stopped. The taxi man and another person gave her assistance and called the gardai who arrived shortly afterwards. She got into the garda squad car. She was driven around the immediate area and shortly afterwards she was able to identify to the gardai the respondent, who was walking along a footpath, as the person who had assaulted her.9. It would appear the reason why the respondent terminated his assault on the complainant at that point was probably due to the fortuitous intervention of a passer-by. This public spirited man had also been walking along Griffith Avenue when he heard the complainant screaming and saw a man pulling at her. He began to run towards the complainant shouting at the man. As he ran towards the scene of the assault the respondent stopped his assault and ran off in the direction of Drumcondra Road. He also went with the gardai in a garda car and subsequently identified the respondent, not far from the scene, as her attacker.10. The respondent was arrested by the gardai following this identification. When interviewed in the garda station, notwithstanding that he knew that he had been identified by the complainant and by the passer-by as the assailant, he denied knowing anything about the assault. He was eventually released and returned, by appointment, to the garda station on 11th November, 2012. He gave a written statement, prepared with the assistance of his solicitor, to the gardai admitting that he had committed the assault.11. He stated that he felt terrible about having done it and that he was sorry that he had not told the truth the first time out. The respondent then was interviewed by the gardai on the basis of the written statement which he had furnished to them. At that point he did not accept the account of the complainant, of which he had been informed, in two particular respects. One was that he insisted that she had stumbled rather than being tackled to the ground and the other was that he did not any stage insert his fingers in her vagina. He qualified this by saying that he certainly had no recollection of doing so and was not conscious of doing so. At the trial these aspects of her account were not disputed.12. At the trial itself the account of the complainant as to what occurred during the course of her assault was not significantly contested. This approach was conveyed to the prosecution (and the complainant) in advance of the hearing. He had issued a statutory notice which made it unnecessary for the prosecution to call the complainant personally to prove her account of the assault. She decided, as she was perfectly entitled to do, that she would give evidence personally at the trial. The respondent, however, pleaded not guilty on the basis of a defence of involuntary intoxication. In his statement, which was tendered at the trial, he said that he commenced a course of prescription of anti-cholesterol drugs the day before the incident. He claimed that he had no memory of the actual assault. At the trial expert evidence was called on his behalf to the effect that the drug in question could have had the effect of causing him to have entered a mental state whereby he either did not know what he was doing and/or had no control over his actions. The prosecution called medical evidence to the contrary. As previously indicated the defence was not accepted by the jury and the respondent was found guilty.The Complainant13. A victim impact statement was submitted on behalf of the complainant. As can be imagined, the physical injuries arising from the particular assault, described as bruising, scratches, muscle aches and pains, were far outweighed by the emotional and psychological impact which the trauma of the assault had on her. This was severe and extensive affecting her capacity to sleep, to work and to function in every aspect of her everyday life. While respecting her privacy concerning the contents of the statement, it can be said that she was emotionally devastated by the event which gave rise to fear, vulnerability and a great deal of stress which interfered with her trust in relationships with other people. Members of her family...

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