DPP v D. C

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] IECA 256
• Court: Court of Appeal (Ireland)
• Date: 12 November 2015

DPP v D. C.

The People at the Suit of the Director of Public Prosecutions

Respondent

- V -

D. C.

Appellant

[2015] IECA 256

Sheehan J.

Mahon J.

Edwards J.

255/14

THE COURT OF APPEAL

Sentencing – Sexual exploitation of a child – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant came into contact with the injured party, ‘B’, on an adult dating website in October 2010. Aged 15, B had a diagnosis of Asperger's syndrome and Attention Deficit Hyperactivity Disorder. He had been required to enter his name and date of birth in order to access this website. He also provided a mobile phone number in response to a request on this website and, following this, he received a text message from the appellant. B and the appellant communicated by phone calls and text messages, sexualised in nature. B was aware that the appellant was around 40 years of age. After a short time it was agreed between B and the appellant that they would meet for sex on the 23rd December 2010, during B's lunchtime during school. B and the appellant met in a town in the locality where B lived. B got into the appellant”s car. The appellant then drove out of the town in question for some distance before pulling in to the side of the road on the hard shoulder. When the appellant then attempted to kiss B, B rejected his advances, being scared of the appellant. The appellant then proceeded to drive off and asked B if he could touch his penis a number of times. B said ‘No’ three times before eventually agreeing. B also touched the appellant”s penis over his trousers. As B was being returned to school, the appellant told him not to tell anyone what happened. The appellant sent B a further text that evening. There was evidence that B and the appellant planned to meet on a second occasion but that B had failed to turn up as he was afraid. In October 2011, B contacted Childline to make a complaint about the incident. B was given advice in relation to contacting either a social worker or member of An Garda Siochana. He subsequently contacted a Garda station, enquiring how he could make a complaint. Arising out of this B subsequently made a complaint to a teacher, and subsequently to the deputy headmaster, at his school and this complaint was brought to the attention of the Gardai in his locality. In the course of the Garda investigation the appellant was identified as a suspect. Having been contacted he attended a Garda station by appointment, where he was formally arrested and interviewed. He made full admissions in the course of being interviewed. He was sentenced to six years imprisonment with two years thereof suspended by the Circuit Criminal Court in December 2014, following his arraignment and plea of guilty to a count of sexual exploitation of a child by inducing him to engage and participate in a sexually indecent or obscene act, contrary to s.3 of the Child Trafficking and Pornography Act 1998. The appellant appealed to the Court of Appeal against the severity of his sentence on the grounds that the trial judge: 1) in attaching too much weight to the aggravating factors in the case, and in ostensibly double counting such aggravating factors as he had identified, over rated the seriousness of the offending behaviour and located the offence at too high a point on the scale of potential penalties; 2) was mistaken in his understanding of certain of the facts; 3) failed to attach sufficient weight to the mitigating factors in the case, and had failed to adequately incentivise continued rehabilitation.

Held by Edwards J that there was no double counting of aggravating factors. The Court was satisfied that the trial judge attached too much weight to the aggravating factors and in doing so over assessed the seriousness of the case; the trial judge fell into error in locating the offence at too high a point on the scale of potential penalties, before application of mitigation. Edwards J held that there was no basis for believing that the sentencing judge”s misunderstanding of the evidence in so far as he determined that the injured party had supplied a date of birth to the appellant at the appellant”s request had any impact on the sentence imposed. Edwards J held that the sentencing judge gave an appropriate discount by suspending one third of the headline sentence to take account of mitigation.

Edwards J held that he would quash the sentence and impose a sentence of four years imprisonment with the final two years suspended.

Appeal allowed.

1 1. This is an appeal by the appellant against the severity of a sentence of six years imprisonment with two years thereof suspended imposed upon him in the Circuit Criminal Court on the 2 ^nd of December 2014, following his arraignment and plea of guilty to a count of sexual exploitation of a child on the 23 ^rd of December 2010 by inducing him to engage and participate in a sexually indecent or obscene act, contrary to s.3 of the Child Trafficking and Pornography Act, 1998 (as amended by s.6 of the Criminal Law (Sexual Offences) (Amendment) Act, 2007) as substituted by s.3 (2) of the Criminal Law (Human Trafficking) Act, 2008.

2 2. The salient facts are that the injured party B was aged 15 at the date of the offence. He attended school locally in the area where he resided with his parents and his younger brother. At the date of the offence he was in third year of secondary school. B had a diagnosis of Asperger's syndrome and Attention Deficit Hyperactivity Disorder, and had a special needs assistant assigned to him at school.

3 3. The sentencing court heard evidence that on the 23rd October 2011, a person identifying himself as B called Childline to make a complaint about an incident that had occurred the previous December. B was given advice in relation to contacting either a social worker or member of An Garda Siochana. He subsequently rang 999, and was put through to a Garda station, and spoke to a female Garda enquiring how he could make a complaint. Arising out of this B subsequently made a complaint to a teacher, and subsequently to the deputy headmaster, at his school and this complaint was brought to the attention of the Gardaí in his locality.

4 4. In the course of the ensuing Garda investigation two specialist interviewers took a detailed statement from B in the presence of his father. B informed Gardaí that he came into contact with a male on an adult dating website in or around October of 2010. B had been required to enter his name and date of birth in order to access this website. He also provided a mobile phone number in response to a request on this website and, following this, B received a text message from a male calling himself 'D'. It was later accepted by the appellant that he was this male.

5 5. B and the appellant communicated by phone calls and text messages. The messages were sexualised in nature. B was aware from early on that the appellant was around 40 years of age. The messages became more explicit and included photographs and a video. Before long B and the appellant were texting each other on a daily basis. There were in the region of 100 to 120 text messages, and the investigating garda described this as a 'grooming operation'. After a short time it was agreed between B and the appellant that they would meet up. Before they met, the appellant asked B if he was thinking of telling anyone about their contact and B took this to mean that the appellant did not want him telling the Gardaí or anyone else.

6 6. B told the Gardaí that the plan in meeting up was 'intentionally to have sex. I guess that is what he wanted'. B and the appellant made an arrangement to meet on the 23rd December 2010, during B's lunchtime during school. When the assignation was being planned the appellant suggested to B that the scheduled lunch period was too short. Accordingly, in order to get off early and take a longer break B informed his parents that he was due to sit a history exam when this was not the case.

7 7. B and the appellant met beside a Spar shop in a town in the locality where B lived. The appellant was driving a Hyundai motor car and B got into the appellant's car. The appellant then drove out of the town in question for some distance before pulling in to the side of the road on the hard shoulder. When the appellant then attempted to kiss B, B sought to avoid being kissed by pretending that he was receiving a phone call. At this the appellant told B to "turn off the fucking phone, just let me fuck you and I'll bring you straight back to school".

8 8. B told the appellant that he did not want to do this and told Gardaí that he was scared of the appellant. The appellant then proceeded to drive off and asked B if he could touch his penis a number of times. B said "No" three times before eventually agreeing. The appellant opened the zip of B's trousers while driving at speed and rubbed B's penis. B said that while this was going on, he was touching the appellant's penis though this was over his trousers and the appellant didn't open his trousers. B told Gardaí then that he was feeling paranoid because he thought every car passing might be his parents, and that he felt sick after it when he got back to school. He described returning to school in his statement:-

"He took his hand away from my penis and I stopped touching him. I did up my own zip. D drove straight into the school grounds, there was nobody walking around. They were all in school and nobody saw me coming back into school."

9 9. As B was being returned to school, the appellant told him not to tell anyone 'because you'll be in just as much trouble as I will.' The appellant sent B a further text that evening. There was evidence that B and the appellant planned to meet on a second occasion but that B had failed to turn up as he was afraid. The evidence was that B...