DPP v C (J)
 IECA 1
THE COURT OF APPEAL
2013/122CJA - Ryan Birmingham Sheehan - Appeal - 27/11/2014 - 2014 13 3672 2014 IECA 1
CRIMINAL JUSTICE ACT 1993 S2
CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S2
SEX OFFENDERS ACT 2001 S37
CRIMINAL JUSTICE ACT 1984 S4
DPP v BYRNE 1995/5/1758
DPP v MCCORMACK 2000/8/3024
DPP v REDMOND 2000/8/3164
CRIMINAL JUSTICE ACT 1993 S2(3)(A)
Criminal Sentencing – Appeal – Unduly Lenient Sentence – Sex Offenders Register – Custodial sentence – Suspended sentence – Sexual Assault
Judgment of the Court delivered by the President on the 27th November, 2014
1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993, to review the sentence imposed on the respondent by the Central Criminal Court on the 24th April, 2013. On the 30th January, 2013, the respondent pleaded guilty to an 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 sentence hearing took place on the 23rd April, 2013, at the Central Criminal Court. On the 24th April, 2013, the court imposed a sentence of five years suspended in its entirety on the respondent entering into a bond in the sum of €1,000 to be of good behaviour for a period of five years and to maintain contact with the Probation Services in accordance with the standard conditions and ordered that the respondent's name be placed on the sex offenders register for a period of five years. On the 15th May, 2013, the Director applied to the learned trial judge to have the respondent's name removed from that register on the ground that such registration was not permissible in circumstances where there was no deprivation of liberty and the complainant was over seventeen years of age and the court acceded to the application.
2. The incident giving rise to the charge happened on the 27th October, 2005, in the bedroom of a house in Waterford City, which was shared by the injured party, Ms A, another young woman, Ms B, and the respondent. Ms A was aged 18 at the time and the respondent was aged 30. They had been on a night out socialising in Waterford and at various venues where a large amount of alcohol was consumed by all three. Some dispute had arisen between Ms B and the respondent during the course of the evening and when the party got back to the house, he went up to her room to apologise and while he was there on the bed with Ms B in her room, the injured party Ms A joined them. The three ended up in bed and asleep although fully clothed. The respondent was in the middle between the two girls. Some time later, the injured party woke up and found that the respondent was on top of her, moving up and down with his hands at either side of her head on the pillow and she was not wearing any clothes from the waist down, although she had been fully clothed when she fell asleep. The prosecution's evidence was that the respondent's penis had been in proximity of the injured party's vagina. Although the respondent had ejaculated, there had not been penetration of the injured party's vagina.
3. The evidence was that Ms B had left the room, but there was a difference in the statements as to when that had happened. This was an issue that came to be considered during the course of the sentence hearing.
4. It is unnecessary to describe the full details of subsequent events, but some facts should be noted. The injured party complained to Ms B about what had happened to her. On the evening of the 27th October three men came to the house and beat up the respondent. This assault was of some severity, because it prevented the respondent from going to work on the following day and it also caused the landlord of the house to make a complaint to the Gardaí which resulted in their visiting the house, following which the injured party made her complaint.
5. The respondent was arrested and detained pursuant to s. 4 of the Criminal Justice Act 1984. He denied sexual intercourse with the injured party. Forensic evidence was obtained from the injured party's underwear and when it was subsequently tested, it matched the respondent's DNA.
6. The respondent emigrated to the United States in February 2006, at a time when he had not been charged with an offence and he remained there until he was deported because of visa issues in December 2009. He was re-arrested on the 21st March, 2011, and the forensic evidence was put to him, but he continued to deny any sexual contact and suggested that the forensic match might have come from a toilet seat.
7. The investigating Garda, Garda McDonald, gave evidence that the respondent was at the time of the sentencing hearing 37 years old and was employed in the horse trade in Ireland. He had two previous convictions in this jurisdiction for public order offences and four previous convictions in the United Kingdom between 1998 and 2001: one for criminal damage, two offences of common assault and an offence of harassment. He had no previous convictions similar to this offence. Since his return from the United States he had not come to adverse Garda attention.
8. Garda McDonald was cross examined by counsel for the respondent and this is of considerable materiality to the issues that arise in this application. The relevant points were helpfully summarised in the submissions of the respondent as follows:-
· All persons involved had consumed a"considerable amount of alcohol" on the night in question.
· There were material inconsistencies between Ms B's account of events and the Injured Party's account in the lead up to each of them getting into the same bed.
· Further inconsistencies appear in respect of Ms B's presence in the bed at the time of the offence.
· A technical issue in respect of the admissibility of DNA evidence against the respondent was capable of being raised by the respondent had the matter proceeded to hearing.
· The respondent was not arrested for the purpose of charge until the 13th October, 2011.
· It was accepted the respondent was quite shocked to be charged at such a remove date from the allegation itself.
· The plea of guilty was of assistance to the prosecution.
9. The inconsistencies referred to appear in the transcript of the hearing of the 23rd April, 2013, at pp. 12 and 13 as follows:-
And I think that whilst it has been indicated that the complaint or the injured party was proceeded up the stairs by [the respondent] who went up to apologise to[Ms B], I think there were aspects of the evidence which would have been inconsistent vis-à-vis [Ms B] and the injured party? Would you agree with that?
And I think one of those instances would have been, for example, that in fact, [Ms B] states that … the injured party, was with her when [the respondent]as called into the room by the injured party?
And I think there is various other matters of that type of inconsistency which my client could have instructed me to put to the jury if the matter had proceeded to trial, such that the injured party indicated that [Ms B] was not in the bed when this event occurred; however, [Ms B] in her statement indicated that she was woke, that the bed was moving and that she then heard Mr. Cunningham snoring and she left the room?
10. The complainant Ms A, was sworn and read her victim impact statement to the court. She said that when the respondent moved into the house with her and [Ms B], she was a first year student and was eighteen years of age and very naïve and that she trusted him. Shortly after he moved in, she found out that she was pregnant by her boyfriend and she had told Ms B and the respondent that prior to the assault. At the time when it happened she was six weeks pregnant. The assault had had a very serious effect and she had suffered from depression for seven and a half years. She described significant features of psychological distress and said that she had been on anti depressants and that she had even though of suicide. Her statement concluded as follows:-
"What this man done to me when I was a young, pregnant naïve girl is an absolute disgrace, and hatred is not a strong enough word to describe how I feel towards him. He changed who I am and who I was going to be. Over the years I have been trying to build myself back up, trying to regain my confidence and self worth with the help of [her partner] and my family. I would like to acknowledge Waterford Garda station, especially Garda Kevin McDonald for all the hard work and dedication over the years. Today I hope justice is served so I can move on from this in the...
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