DPP v Clarke

 
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[2014] IECA 27

THE COURT OF APPEAL

Irvine, J., Sheehan, J., Mahon, J., [Appeal No. 11/2013]

The People at the Suit of the Director of Public Prosecutions
Respondent
V
Peter Clarke
Appellant

Sentencing – Sexual offences – Unduly severe sentence – Appellant seeking to set aside sentence on grounds of undue severity – Whether trial judge properly considered the circumstances of the offences and the personal circumstances of the applicant

Miss Justice Irvine
1

The background to this application is that on 30th October, 2012, the appellant pleaded guilty to two offences contrary to s. 2 of the Criminal Law (Rape) (Amendment) 1990, as amended by s. 37 of the Sex Offenders Act 2001.

2

Consequently, on 10th January, 2013, in the Circuit Criminal Court, the appellant was sentenced to a term of imprisonment of five years in respect of each offence. His term of imprisonment was backdated to 11th September, 2011, that being the date upon which he was taken into custody. On his release he was directed to fully engage and co-operate with the Probation Services for a period of seven years. The appellant now seeks to set aside that sentence on the grounds that it was unduly severe.

The circumstances of the offences
3

The first offence was committed on 12th May, 2011, on the main street in Carrickmacross town in the early afternoon. The victim, a fifteen year old school girl, was walking down the street when the appellant came up behind her. He grabbed her shoulder with his right hand, touching her hair and neck. With his left hand he felt her stomach and down as far as her vagina, which he then squeezed and felt for, according to himself, about two minutes.

4

In the course of his interview with Garda Gibbons on 12th May, 2011, that being the day of the offence, the appellant immediately admitted his assault. He said that the reason he had let his victim go was that there were a lot of people around. If there had not been, he stated, he would have pulled her trousers down and got on top of her, provided his penis was working. The appellant admitted picking on his victim because she was on her own. He said he knew that she was a child of fifteen years of age and that what he wanted to do was wrong, but he had wanted sex that day. When asked how he thought his victim had felt about the assault, he said he knew that she was afraid. As to why he carried out the assault, he said he did it for the buzz. When asked if he had anything additional to say, he said he wanted to offer his victim a couple of hundred euros. When asked if he would do it again, he said he did not think he would.

5

As for the victim of the assault, Garda Gibbons told the Court that when she attended the garda station with her father, she was very shocked, distressed and angry.

6

The second assault occurred on 10th September, 2011, and occurred outside St. Joseph”s Church in Carrickmacross. The appellant saw ten to fifteen people standing outside the church, including a ten year old girl. He went up to her and, according to himself, ‘caught her by her bum and private parts’. He put his hand on her vagina, touching her outside her jeans. When asked if he would like to have taken things further, he replied in the negative, stating that there were loads of people around.

The personal circumstances of the appellant
7

The appellant was born in 1944 and was sixty eight years of age at the time the sentence was imposed. He was a single man living with his sister. He had never been married nor in a long term relationship. He had a number of previous convictions, including one count of theft, one count of breach of the peace, two counts of indecency and one count of sexual assault – the last of those offences had been dealt with in the District Court in 2007.

8

At the time of the second offence the appellant was taking an anti-androgen drug to reduce his sexual impulses. Also relevant to his personal circumstances was the fact that he had a medical history and the trial judge had been referred to a number of medical reports which had been obtained on his behalf. In chronological order, these were firstly the report of Dr. Conor O”Neill, a consultant forensics psychiatrist attached to the Central Mental Hospital; secondly the report of Dr. Andrew Eustace, consultant psychiatrist; and thirdly the report of Dr...

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