DPP v C (N)

 
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[2013] IECCC 1

THE HIGH COURT

[CCDP 0016/2011]
DPP v C (N)
CENTRAL CRIMINAL COURT

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR

AND

N.C.
DEFENDANT

CCDP 0016/2011 - Sheehan - CCC - 7/6/2013 - 2013 16 4581 2013 IECCC 1

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PARA 507

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

DPP v DROUGHT 2008 1 IR 308 2007/18/3617 2007 IEHC 310

DPP v H (P) UNREP CHARLETON 15.10.2007 2007/18/3716 2007 IEHC 335

DPP v O'CALLAGHAN UNREP CCA 21.6.2010 2010/16/4017 2010 IECCA 52

JUDGMEN Criminal law - Sexual offences - Indecent assault - Rape - Sentencing - Aggravating and mitigating features - Impact on victim - Exceptional circumstances

Introduction
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1. Following a four-day trial, N.C. was convicted by a jury on 21 st February, 2013, of raping O.B. on two occasions and of indecently assaulting her on two other occasions over an eight month period between September, 1985 and May, 1986 when O.B. was fourteen and N.C. was twenty four. N.C. has been in custody since 21 st February awaiting sentence.

Background
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2. These offences occurred in circumstances where O.B. was babysitting for her older sister and the defendant who were then married to each other. Each offence occurred when the defendant had returned from a night's drinking with his wife and mother in law.

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3. During this particular eight month period, O.B. when babysitting stayed overnight in her own room in the family home.

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4. On the first occasion N.C. entered O.B.'s bedroom, he fondled her genitals and had sexual intercourse with her. O.B. was very shocked by this. A similar incident occurred some three months later.

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5. The first indecent assault occurred within four to six weeks of the second rape when N.C. having touched the victim's genitals got her to touch his penis. This touching stopped when N.C. heard a noise downstairs.

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6. The final incident occurred a number of months later when N.C. again entered the victim's bedroom and touched her in the genital area, but left almost immediately having been called by his wife.

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7. Following this last incident, O.B. noticed the following morning that her sister was pregnant and decided at that point not to baby-sit again.

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8. She returned later that week when she knew N.C. was at work and told her sister "I cannot baby-sit for you anymore. Please don't ask me why, I just can't do it".

Sentencing Principles
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9. In considering what is the appropriate sentence in this case, it is the function of this Court to apply what is known as the principle of proportionality, to reconcile that principle, insofar as possible with the aim of rehabilitation. As has been previously stated by the Court of Criminal Appeal, each case must depend upon its special circumstances. The appropriate sentence depends not only on its own facts, but also on the personal circumstances of the defendant. The sentence to be imposed is not the appropriate sentence for the crime but the appropriate sentence for the crime because it has been committed by this defendant.

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10. Finally, in a case such as this where the defendant has been convicted of more than one offence, it is the court's duty to consider what is called the totality principle. In the present case this means considering whether or not the sentences to be imposed should run concurrently.

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11. In the second edition of Sentencing Law & Practice published by Round Hall in 2006, Professor O'Malley says at para. 507:-

"The dominant principle of Irish sentencing law is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender."

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12. When further considering this principle of proportionality, Professor O'Malley goes on to refer to the Supreme Court judgment of Henchy J. in the State (Healy) v. Donohue [1976] I.R. 325, where he said that the constitutional guarantees to due process, fundamental rights and personal liberty:-

"necessarily (imply) at the very least a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner or in circumstances calculated to shut him out from a reasonable opportunity of establishing his innocence or where guilt has been established or admitted of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances."

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13. Professor O'Malley points out that while the above quoted statement does not use the language of proportionality, it clearly envisages a sentencing system informed by proportionality standards and says that several later judgments in which proportionality was expressly endorsed have taken this statement by Henchy J. as their starting point.

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14. Professor O'Malley goes on to say:-

"A criminal trial must be fair and conducted in due course of law. If sentencing is part of the trial process, that too must incorporate the same qualities. The entitlement to a fair trial belongs explicitly to the accused person. Sentencing must, therefore, be above all else fair to the accused. That is precisely what the present proportionality standard requires with its emphasis on individual culpability and personal circumstances."

Submissions of Counsel
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15. Counsel for the Director of Public Prosecutions told the court that the appropriate sentence lay in the eight to twelve year range and referred the court to the judgment of Charleton J. in Director of Public Prosecutions v. W.D. delivered on 4 th May [2007] IEHC 310. This judgment breaks sentencing in rape cases into four separate categories:-

(1) Any penalty including a suspended sentence up to a sentence of three years imprisonment,

(2) Sentences from three years imprisonment to eight years imprisonment,

(3) Sentences from eight years imprisonment to twelve years imprisonment, and

(4) Sentences in excess of twelve years imprisonment.

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16. In addition, counsel for the D.P.P. suggested a further judgment of Charleton J. in Director of Public Prosecutions v. P.H. [2007] 10 JIC 1502, as a possible comparator. In further support of her submissions on behalf of the D.P.P., counsel submitted that the following aggravating factors were relevant:-

(1) The age of the victim at the time of the offences;

(2) The number of offences, namely two counts of rape and two counts of indecent assault;

(3) The duration of the offending. The offences took place over an eight month period;

(4) The breach of trust involved in that the offences were committed by an older family member for whom the victim was babysitting; and

(5) The impact the offences had on the victim as disclosed in the Victim Impact Statement.

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17. This Court accepts the prosecution submissions concerning the relevance of these aggravating factors.

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18. Counsel on behalf of the defendant submitted that the court should take into account the fact that the defendant not only has no previous convictions, but...

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