DPP v D(G)

• Jurisdiction: Ireland
• Judge: McCracken J
• Judgment Date: 13 July 2004
• Neutral Citation: [2004] IECCA 17
• Court: Court of Criminal Appeal
• Date: 13 July 2004

[2004] IECCA 17

COURT OF CRIMINAL APPEAL

McCracken J

Gilligan J

O'Leary J

22CJA/2004

DPP v. D (G)

In the Matter of Section 2 of the Criminal Justice Act 1993

And In the Matter of Bill No. CC053/02

Between:

The People (at the Suit of the Director of PublicProsecutions)

Applicant

AND

GD

Respondent

Citations:

CRIMINAL LAW (AMDT) ACT 1990 S4

CRIMINAL JUSTICE ACT 1993 S2

DPP V BYRNE 1995 1 ILRM 279

DPP V Y (N) 2002 4 IR 309 2002/10/2326

DPP V O'D (R) 2000 4 IR 361

DPP V MCCORMACK 2000 4 IR 356

Abstract:

Criminal law - Sentence - Rape - Leniency of sentence - Whether exceptional circumstances justifying departure from normal custodial sentence - Criminal Justice Act 1993, s. 2

Facts: The respondent pleaded guilty to a single charge of rape and was sentenced to three years detention. At the time of sentencing the respondent had already spent almost two months in detention and the judge suspended the entire balance of the sentence. The DPP applied pursuant to the provisions of s. 2 of the Criminal Justice Act 1993 for a review of the sentence.

Held by the Court of Criminal Appeal in refusing the application that while a sentencing judge in a rape case must approach his deliberations on the basis that normally a custodial sentence will be imposed that he was not precluded from examining the particular circumstances of the case to consider whether such circumstances were so exceptional as to justify departure from the norm. The trial judge was correct in identifying the present case as one in which there were exceptional circumstances. It was an isolated event committed by a 15 year old who was trying to come to terms with his homosexuality.

Reporter: R.W.

1 McCracken Jon the 13th day of July 2004

2 The Court has already indicated that it would refuse this application. The reasons for such refusal are set out hereunder.

3 The Respondent pleaded guilty to one single charge of rape under s.4 of the Criminal Law Amendment Act 1990and was sentenced to three years detention. At the time of sentencing the Respondent had already spent almost two months in detention and the learned trial Judge suspended the entire balance of the sentence. The Director of Public Prosecutions has applied to the Court pursuant to s.2 of the Criminal Justice Act 1993to review the sentence.

4 The circumstances of this case are quite unusual. The offence took place on 12 ^th November 2001, at which time the Respondent was 15 years of age. The Respondent and a girl of his own age, together with another friend who was only 12 years old, had gone to a flat where the 12 year old's grandmother lived. On the way they had gone to an off-licence and purchased some beer which they brought to the flat with them. During the evening the Respondent drank a considerable quantity of beer, particularly considering his age. At some time fairly late in the evening the 12 year old's grandmother returned to the flat with a male friend who also had had a considerable amount to drink. Further drink was consumed and a dispute developed between the Respondent and this man, but it does not appear to have been particularly serious. Eventually the man, who by this stage was quite drunk, decided that he was going to go home and left the flat to get a taxi. The Respondent went with him, andbefore he could find a taxi the Respondent pulled him into an area where containers were parked, attacked him and raped him.

5 A garda patrol car arrived on the scene, having been alerted by a member of the public that there was some sort of trouble, and the Respondent was arrested. The victim was apparently not able to give a coherent account of what had occurred until the next morning, but he then made a formal complaint to the Gardaí. When the Respondent was interviewed by the gardaí in the presence of his father he admitted the offence, and showed considerable remorse.

6 The approach to be taken by this Court when considering an application under s.2 of the Criminal Justice Act 1993has been clearly set out in a number of earlier judgments, and in particular in DPP v. Byrne [1995] 1 ILRM 279. In that case it was emphasised that the onus of proof rests on the Director of Public Prosecutions to show that the sentence was unduly lenient, and that the Court of Criminal Appeal should only intervene if there was a substantial departure from what would be regarded as the appropriate sentence. The question at issue here, therefore, is whether a suspended custodial sentence under the circumstances of this case should be considered a substantial departure from the appropriate sentence.

7 In considering the sentence in the present case the learned trial Judge placed great reliance on the judgment of Fennelly J in this Court in DPP v. NY [2002] 4 IR 309. In that case the Court considered whether and in what circumstances a non-custodial sentence should be imposed on a conviction for rape. The learned trial Judge in the present case commented in relation to that...