DPP v D.M.

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date13 May 2019
Neutral Citation[2019] IECA 147
CourtCourt of Appeal (Ireland)
Docket NumberAppeal No. 86/2018
Date13 May 2019
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
-AND-
D. M.
APPELLANT

[2019] IECA 147

Appeal No. 86/2018

THE COURT OF APPEAL

Sentencing – Defilement of a child under the age of fifteen years – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant appealed to the Court of Appeal from the decision of McCarthy J of 7 March 2018 in the Central Criminal Court by which he imposed sentences of six and a half years on account of defilement of a child under the age of fifteen years contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006, and five years on three counts of exploitation, pursuant to s. 3 of the Child Trafficking and Pornography Act 1998. All sentences were ordered to run concurrently with the effect that the custodial sentence was one of six and a half years’ imprisonment. The appellant complained that the trial judge made a wrong assessment of the gravity of the offence and that he identified an inappropriately high headline sentence. A discrete ground of appeal related to the import of a victim impact statement under s. 5 of the Criminal Justice Act 1993 in the sentencing process. Although not initially advanced as a ground of appeal, the appellant sought to further complain that insufficient regard was had to the penal objective of rehabilitation in the way in which the sentence was structured. It was specifically suggested at the oral hearing that the trial judge ought to have considered partly suspending the sentence he was minded to impose to incentivise the appellant’s continued desistence and rehabilitation, and that the failure to do so was an error.

Held by the Court that, having considered the culpability of the offender’s conduct, and the harm done, it was satisfied that the trial judge did, in fact, over-assess the gravity of the case and, in consequence, erred in fixing a headline sentence of nine years, which was too high. That positioned the offence in the high range of offending and, in the Court’s view, the correct approach ought to have seen it placed in the mid-range. Insofar as the trial judge’s actual words were open to the literal interpretation sought to be attributed to him by counsel for the appellant the Court felt obliged to conclude that the trial judge’s ipsissima verba reflected, prima facie, an error of principle as to the intended operation of s. 5 of the 1993 Act. In circumstances where the Court had identified errors of principle on the part of the trial judge leading, it believed, to a sentence on the defilement count under s. 2(1) of the 2006 Act that was too severe, it held that it would quash the sentence imposed by the court below, and proceed to a re-sentencing of the appellant.

The Court held that the sentence on the defilement charge was to be reduced to five years with the last year suspended, to run concurrently with the sentence on the exploitation charges.

Appeal allowed.

JUDGMENT of the Court delivered on the 13th day of May 2019 by Ms. Justice Baker
1

This is an appeal from the decision of McCarthy J. of 7 March 2018 in the Central Criminal Court by which he imposed sentences of six and a half years on account of defilement of a child under the age of fifteen years contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006 (the ‘2006 Act’), and five years on three counts of exploitation, pursuant to s. 3 of the Child Trafficking and Pornography Act 1998, as amended (‘the 1998 Act’). All sentences were ordered to run concurrently with the effect that the custodial sentence is one of six and a half years” imprisonment.

2

On 4 December 2017, the appellant pleaded guilty to the offence of defilement and, two months later, to three offences of what is generally described as the charge of ‘grooming’ or exploitation of a child. At the time of the offence of defilement, the appellant was nineteen years of age and the complainant girl fourteen, and she was thirteen at the time of the exploitation offences.

3

The appeal is against the severity of the sentence. The appellant complains that the trial judge made a wrong assessment of the gravity of the offence and that he identified an inappropriately high headline sentence. A discrete ground of appeal relates to the import of a victim impact statement under s. 5 of the Criminal Justice Act 1993 (the ‘1993 Act’) in the sentencing process. Although not initially advanced as a ground of appeal, the appellant has sought to further complain that insufficient regard was had to the penal objective of rehabilitation in the way in which the sentence was structured. It was specifically suggested at the oral hearing that the trial judge ought to have considered partly suspending the sentence he was minded to impose to incentivise the appellant's continued desistence and rehabilitation, and that the failure to do so was an error.

Outline of the offence
4

The offences took place over a period of approximately five months, between December 2011 and May 2012. The complainant and the appellant had met through mutual friends in December 2011, and almost immediately thereafter the appellant began communication with her via Facebook after he had made contact with her by sending a ‘friend request’. Thereafter, they communicated through Facebook, Skype, and SMS on their phones. The Skype communication was via video link but no recording was made. The appellant, at all material times, knew the age of the complainant and that she was still at school.

5

Within days of their first Facebook communication, the appellant used sexualised language and behaviour in his communication with the complainant, and the first offence of which he is charged occurred just six days after their first direct communication when the complainant exposed his penis and masturbated on camera and invited her to digitally penetrate herself which she refused to do.

6

The next offences occurred in rapid succession thereafter between January 2012 and February 2012, and involved other episodes of the appellant exposing himself on camera and masturbating himself and, on one occasion he invited the complainant to masturbate herself which she did, but off camera. A number of incidents occurred of the same type which involved the appellant exposing his penis on camera, masturbating himself and inviting and inducing the complainant to masturbate herself which she did on camera.

7

The complainant and the appellant met on one single occasion on 31 March 2012, on which occurred the offence of defilement. They met in the company of friends and later went alone to the quiet area in a public park where after kissing for a while, the appellant encouraged and induced the complainant to masturbate him, which she did until he ejaculated. They continued kissing and the appellant then put his hands inside her underwear and digitally penetrated her. She asked him to stop and said that it hurt and he did stop when she so indicated. He then encouraged and induced her to have oral sex and placed her mouth on his penis but immediately stopped. It was clear to him she did not wish to engage in that behaviour.

8

The couple did not meet after that event but did continue with the engagement through Skype thereafter for a period until the events next described.

9

In August 2012, the mother of the complainant noticed messages between her and the appellant and the Gardaí then became involved. Considerable delay ensued in the investigation as a result of the requirement to obtain certain information from the United States concerning the IP address of the appellant. He presented himself for charging on 15 November 2016 to facilitate the progression of the case and entered a guilty plea on the day of the trial, although he had indicated a guilty plea four weeks in advance of the trial and this was later confirmed two weeks before the trial.

10

The respondent points to the fact that the case had been returned some twelve months previously and the appellant had not made any admission then or until close to the trial. The trial judge took the view that the plea was not an early plea.

11

The appellant had no previous convictions, he was working and completing his studies as an apprentice electrician, he had not come to the attention of the Gardaí before the incident or in the period between August 2012 and the date of trial. Very positive references were adduced on his behalf at the sentence hearing and the evidence is that he is cooperative and mannerly in his engagement with prison staff at Midlands Prison where he was transferred on 13 February 2018. He is on enhanced privilege level at the prison and has received no disciplinary reports since his committal to prison.

12

The victim furnished a victim impact statement which we will deal with in more detail later in this judgment but it is clear from her statement and her direct evidence at the hearing that the incidents had a profound effect on her, that she experienced feelings of guilt and a loss of trust in her relationships with others, and that, having regard to her age, her sexual development and ability to sexually engage with others was negatively impacted.

The sentencing hearing
13

The appellant had pleaded guilty to a number of charges on the indictment, described by the sentencing judge as ‘a representative sample’, and it was indicated at the arraignment that this was acceptable to the Director of Public Prosecutions on the understanding that sentencing would take place on a ‘full facts basis’. The appellant was accordingly to be sentenced for those offences to which he had pleaded guilty, but the sentencing court could take account of the context within which the offending conduct in respect of each count had occurred, and in particular whether the offence to which the guilty plea was entered was an isolated incident or part of a course...

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4 cases
  • The People (At the Suit of the DPP) v J.McD.
    • Ireland
    • Court of Appeal (Ireland)
    • 8 February 2021
    ...by the perpetrator who simultaneously video recorded the act on his phone; and The People (Director of Public Prosecutions) v. D.M. [2019] IECA 147 where an adult abuser was in Skype contact with the child he was grooming and exposed his penis on camera, masturbating himself and inviting an......
  • DPP v M.W.
    • Ireland
    • Court of Appeal (Ireland)
    • 21 September 2020
    ...further refers to the vulnerability and age of the complainant and the abuse of trast. The respondent refers to The People (DPP) v. DM [2019] IECA 147 where the Court highlighted the age of the complainant, and at that age, her vulnerability and the likely impact on her sexual development w......
  • DPP v P.N.
    • Ireland
    • Court of Appeal (Ireland)
    • 21 February 2023
    ...in particular the guilty plea, the expression of remorse, his assessment at moderate to low risk of reoffending.” 19 . People (DPP) v DM [2019] IECA 147 is relied on. The disparity between the 33% reduction for mitigation in DM and the 16.7% reduction in the present case in circumstances wh......
  • Director of Public Prosecutions v G.S.D.S.
    • Ireland
    • Court of Appeal (Ireland)
    • 9 June 2023
    ...It is said that this offence would more appropriately be placed in the low range. 17 . The appellant further relies on People (DPP) v DM [2019] IECA 147 in which case this Court substituted a headline sentence of nine years for a headline sentence of seven and a half years for offending whi......
1 books & journal articles
  • Sentencing Rape - A Comparative Analysis by Dr Graeme Brown
    • Ireland
    • Irish Judicial Studies Journal No. 2-20, July 2020
    • 1 July 2020
    ...v Berry , 17 R v Thornton, 18 and R v W, 19 noting and agreeing with the criticisms of Rumney (and others) that the various judicial 12 [2019] IECA 147. 13 Sveinung Sandberg and Thomas Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’ (2017) 57(5) ......

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