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

Facts: Following a four day trial before a jury, N.C. was found guilty on the 21st February 2013 of two counts of rape and two counts of indecent assault. The offences occurred between September 1985 and May 1986 against O.B. who was the younger sister of N.C.”s then wife. At that time, the victim was fourteen and N.C. was twenty four. It was found that the offences were all committed after the N.C. had returned home from nights out with his then wife and mother-in-law. O.B. had been babysitting for the married couple on each occasion. Following the conclusion of the trial, the matter was adjourned for sentencing.

In relation to the appropriate sentence, counsel for the Director of Public Prosecutions argued that Director of Public Prosecutions v. W.D. [2007] IEHC 310 indicated that the offences committed by N.C. warranted a sentence of imprisonment of eight to twelve years. That assertion was based on the aggravating features of the case, which were said to be the age of the victim at the time; the number of offences; the duration of the offending; the breach of trust committed by an older family member against a younger family member; and the impact the offences had on O.B. In response, counsel for N.C. argued that there were a number of mitigating features, namely that he had no previous convictions of any sort; the fact that he never come to the attention of Gardaí at any stage before or after the commission of the offence; that he had an excellent work record; that he had been in a stable and committed relationship for several years; that he had three sons from this relationship as well as two daughters from previous; and that two of his sons had special needs which required constant supervision. Finally, it was submitted that a careful consideration of Director of Public Prosecutions v. W.D. indicated that the appropriate sentence in respect of N.C. would be within the bracket of three and eight years imprisonment.

Held by Sheehan J that it was the function of the court in sentencing N.C., to apply the principle of proportionality as well as trying to meet the aim of his rehabilitation. As N.C. had been convicted of multiple offences, the court also had to consider whether the sentences handed down for each should run concurrently or consecutively. On consideration of the circumstances of the case, it was held that that the correct range for sentence was three to eight years imprisonment. However, taking into consideration the aggravating and mitigating features of the case, especially the impact the offences had on O.B., it was determined that the term of imprisonment would be at the higher end of the range at seven years in respect of each of the offences of rape. The offences were committed twenty seven years ago, and in light of the fact there was no evidence to show N.C. hadn”t self-rehabilitated fully, it was held there was no risk of re-offending, therefore a post release supervision order was not required.

It was further held that it was clear from evidence presented before the court that two of N.C.”s sons had acute special needs. It was also evident that if N.C. was to be imprisoned, there would undoubtedly be a great deal of hardship placed on his family due to their reliance on him. Given these exceptional circumstances, it was held that suspending the sentences of imprisonment would be appropriate. As a result, N.C. was sentenced to seven years imprisonment for each of the offences of rape, suspended for five years; and two years imprisonment for each of the offences of indecent assault, suspended for one year. The sentences were imposed concurrently.

Introduction
1

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...

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