DPP v Broughan

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 26 May 2017
• Neutral Citation: [2017] IECA 165
• Docket Number: 287/15
• Court: Court of Appeal (Ireland)
• Date: 26 May 2017

[2017] IECA 165

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Hedigan J.

287/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Gerry Broughan

Appellant

Sentencing – Sexual offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Broughan, was sentenced to eight years, seven years and seven years imprisonment on three counts of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006 and six years imprisonment in respect of the offence of sexual assault of a child contrary to s. 2(2)(a)(i) of the Criminal Law (Rape) (Amendment) Act 1990. The sentences were imposed in the Circuit Court in Naas on 4th December, 2015. The appellant appealed to the Court of Appeal against severity of sentence. All sentences were concurrent so the effective sentence appealed against was one of eight years imprisonment. The appellant submitted that the judge’s approach to sentencing was not an appropriate one in that he identified the offences as being in the higher range and then set out the mitigating and aggravating circumstances. The appellant submitted that this was not the correct approach and that what should have happened was for the trial judge to identify the appropriate sentence taking into account aggravating factors and then applying mitigation. The judge was criticised for putting the offences in the higher range. Attention was drawn to his comments that the sexual abuse could be described as disgusting, denigrating, repulsive, horrific, shocking and humiliating, and it was said that those remarks indicated that he was not approaching his task of sentencing in the dispassionate way that he ought to. Overall, it was said that the judge placed too much weight on the aggravating factors and he was criticised for his reference to the impact of the offences on the injured party as being “catastrophic”. It was said that insufficient regard was had to the mitigating factors present, including the fact of an early plea. It was pointed out that arrangements were being made to have the case transferred to Dublin where video link facilities would be available but that this was made unnecessary because the appellant indicated at an early stage that he would be pleading guilty.

Held by the Court that the early plea was a significant factor, both for the reasons referred to by the sentencing judge but also because it was offered at a sufficiently early stage so as to obviate the necessity for transferring the case off circuit. The Court felt that it would have been appropriate to have this addressed specifically in the sentence.

The Court held that it was prepared to suspend the final twelve months of the longest sentence that was imposed, the eight year sentence; the sentence would be suspended for a period of three years post release from custody. The Court held that it would be a condition of the suspended sentence that he enter a bond to keep the peace and be of good behaviour and also that he would be subject to the directions of the Probation Service during that period of three years post release; so providing would strengthen the provision that was made by the Circuit Court judge for three years post release supervision, which remained in place.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 26th day of May, 2017 by Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentences under appeal are sentences of eight years, seven years and seven years on three counts of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006 and a sentence of six years imprisonment in respect of the offence of sexual assault of a child contrary to s. 2(2)(a)(i) of the Criminal Law (Rape) (Amendment) Act 1990. All sentences are concurrent so the effective sentence appealed is one of eight years imprisonment. The sentences were imposed in the Circuit Court in Naas on 4th December, 2015. Details of the offences were as follows:

i. Count 1: An offence of defilement that occurred between 21st and 23rd January, 2014 in relation to sexual intercourse with L.M., a sentence of eight years was imposed on this count.

ii. Count 2: Defilement of a child under 15 years that occurred between 21st and 23rd January, 2014 which involved a sexual act with L.M., by penetrating her mouth with his penis, a sentence of seven years was imposed on this count.

iii. Count 4: Defilement of a child on a date between 21st January, 2014 and 1st February, 2014 which involved engaging in a sexual act with L.M. by penetrating her mouth with his penis, a sentence of seven years was imposed on this count.

iv. Count 5: Sexual assault of a child on a date between 31st January, 2014 and 1st February, 2014 by placing his tongue in her vagina, a sentence of six years was imposed on this count.

2 The background to the offences is that the complainant's date of birth is 14th April, 1999 while the accused man's date of birth was 19th November, 1975. The offences occurred at the appellant's home in Monasterevin. The appellant was in a relationship with a woman whose daughter was a school friend of the injured party. The circumstances of the offending were that the complainant went to the home of the accused for a sleepover with her friend, the daughter of the appellant's partner. Initially, there was contact between the parties through Facebook and, as the trial judge pointed out, some of these involved suggestive messaging from the appellant. The complainant indicates that matters progressed to a stage when he would touch or ‘grab’ her bottom. Then there was an occasion when he kissed her on the lips and placed his hands on her hips. Then,...