DPP v D.T.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 05 June 2018 |
| Neutral Citation | [2018] IECA 165 |
| Date | 05 June 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 85/2016 147/2017 |
[2018 IECA 165
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Mahon J.
Hedigan J.
85/2016
147/2017
Sentencing – Rape – Severity of sentences – Appellant seeking to appeal against sentences – Whether sentences were unduly severe
Facts: The appellant brought two appeals before the Court of Appeal against the severity of sentence. The first of these was in respect of the sentence imposed by Kennedy J on 29th February 2016 in respect of the following offences committed on 4th January 2014: (i) rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990; (ii) rape contrary to s. 4 of the 1990 Act; (iii) rape contrary to s. 4 of the 1990 Act; (iv) aggravated sexual assault contrary to s. 3 of the 1990 Act; (v) sexual assault contrary to common law and as provided for in s. 2 of the 1990 Act; (vi) assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The applicant was sentenced on 29th February 2016 as follows: counts (i), (ii) and (iii): a sentence of 14 years reduced after consideration of mitigating factors to a sentence of 12 years imprisonment; count (iv): a sentence of 12 years after consideration of mitigating factors to a sentence of 10 years imprisonment; count (v): a sentence of five years after consideration of mitigating factors to a sentence of four years imprisonment; count (vi): a sentence of two years after consideration of mitigating factors to a sentence of 18 months imprisonment. All sentences were to run concurrently. The second appeal was in respect of the sentence imposed by Coffey J on 19th May 2017 in respect of the following offences committed on the 10th July 2013 and 8th September 2013: (i) rape contrary to s. 48 of the 1861 Act and s. 2 of the 1981 Act as amended by s. 21 of the 1990 Act; (ii) rape contrary to s. 4 of the 1990 Act; (iii) assault causing harm contrary to s. 3 of the 1997 Act. The grounds of appeal against the first sentence were that the trial judge: (a) did not give sufficient weight to the contents of the psychiatric report of Professor Casey dated 19th January 2016; (b) erred in law in her sentence in that she did not take into account the remorse albeit that the appellant had pleaded not guilty; (c) erred in law and in fact in her sentence in that she did not take any notice of the letter given in apology by the appellant; (d) did not give sufficient weight to the appellant’s age in that at the time of the sentence the appellant was 29 years of age; (e) erred in that the severity of the sentence overall was disproportionate in all the circumstances. The grounds of appeal against the second sentence were that the trial judge: (a) did not give sufficient weight and balance to the evidence adduced in mitigation of sentence, specifically the difficult background of the appellant and his traumatic childhood; (b) did not give sufficient weight to the fact that this event was first in time and therefore should be treated as a first offence and the sentence did not reflect this; (c) erred in law in that he did not take into account the remorse expressed by the appellant; (d) erred in law and in fact in that the sentence imposed was in effect a 22 year sentence and did not take into account the totality principle; (e) did not give sufficient weight to the appellant’s age which was 30 years at the time of sentence; (f) did not give sufficient weight to the appellant’s family situation in that he is the father of two minor children; (g) the overall sentence of 22 years was disproportionate in all the circumstances.
Held by the Court that, regarding the first sentence, having applied The People (DPP) v Wall [2011] IECCA 45, it could find no error of principle by the sentencing judge. Regarding the second sentence, the Court considered that that gravity was correctly measured by the judge as proportionate to the sentence that he imposed.
The Court held that it would dismiss both appeals.
Appeals dismissed.
There are two appeals brought by the appellant in this application. Both are against the severity of sentence. The first of these is in respect of the sentence imposed by Kennedy J. on 29th February 2016 (the first sentence). This sentence was in respect of the following offences committed on 4th January 2014 against one GM:
(i) rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990,
(ii) rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990,
(iii) rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990,
(iv) aggravated sexual assault contrary to s. 3 of the Criminal Law (Rape) (amendment) Act 1990,
(v) sexual assault contrary to common law and as provided for in s. 2 of the Criminal Law (Rape) (Amendment) Act 1990,
(vi) assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
The applicant was sentenced on 29th February 2016 as follows:
counts 1, 2 and 3: a sentence of 14 years reduced after consideration of mitigating factors to a sentence of 12 years imprisonment,
count 4: a sentence of 12 years after consideration of mitigating factors to a sentence of 10 years imprisonment,
count 5: a sentence of five years after consideration of mitigating factors to a sentence of four years imprisonment,
count 6: a sentence of two years after consideration of mitigating factors to a sentence of 18 months imprisonment.
All sentences to run concurrently.
The second appeal is in respect of the sentence imposed by Coffey J. on 19th May 2017 (the second sentence). This sentence was in respect of the following offences committed on the 10th July 2013 and 8th September 2013 against RK the onetime partner of the appellant:
(i) rape committed on the 8th of September 2013 contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990,
(ii) Rape committed on the 10th of July 2013 contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990,
(iii) assault committed on the 10th of July 2013 causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
The grounds of appeal against the first sentence involving the offences committed against GM on the 4th of January 2014 are as follows:
(a) the learned trial judge did not give sufficient weight to the contents of the psychiatric report of Professor Patricia Casey dated 19th January 2016,
(b) the learned trial judge erred in law in her sentence in that she did not take into account the remorse albeit that the applicant had pleaded not guilty,
(c) the learned trial judge erred in law and in fact in her sentence in that she did not take any notice of the letter given in apology by the applicant,
(d) the learned trial judge did not give sufficient weight to the applicant's age in that at the time of the sentence the applicant was 29 years of age,
(e) the learned trial judge erred in that the severity of the sentence overall was disproportionate in all the circumstances,
(f) further or other grounds.
Brian Leahy, B.L., on behalf of the appellant submitted that the overall sentence of 12 years was, as he put it, ‘a little on the heavy side’. He conceded that it was really upon the overall sentence including the ten years imposed in the second sentence that he was focusing his argument. He conceded quite properly that if there was an error in the first sentence, it was a small one.
Tom Creed, S.C., on behalf of the Director of Public Prosecutions submitted that the sentence was appropriate and justified. In relation to the appellant's dysfunctional background, he submitted that while it could constitute a factor to be properly taken into account in the sentencing process, those matters that are contained in the psychiatric report of Professor Patricia Casey in relation to the appellant, whilst regrettable, are not so unusual, severe or grave as to afford significant mitigation. The applicant, whilst undoubtedly having experienced an unfortunate upbringing, was not the victim of so traumatic an upbringing as to bring his circumstances within the principles identified in DPP v. Fitzgibbon [2014] IECCA 12. Mr Creed further submitted that those aspects of the appellant's circumstances which were dealt with in the report of Professor Casey were carefully and appropriately considered by the learned sentencing judge. He noted that at p. 8 of the transcript of proceedings on 29th February 2016, lines 1 – 4, the learned sentencing judge stated as follows:
‘I take into account such mitigating factors as have been identified to me; being the accused's dysfunctional background, that he is a man who has been in gainful employment and his contention that he himself was the victim of a sexual assault albeit an unreported sexual assault.’
Thus the learned sentencing judge did have adequate and appropriate regard to those matters concerning the appellant's upbringing as were brought to her attention. Appropriate and sufficient weight was given to the psychiatric report of Professor Casey. In relation to the remorse expressed by the appellant, Mr Creed submitted that the learned sentencing judge who had presided over the trial of the appellant was best placed to gauge the level of remorse of the appellant. He noted that at p. 8 of the transcript of the proceedings of 29th February 2016 at lines 1 – 11 she stated as follows:
‘I also take into...
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