DPP v D.W.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 May 2018
• Neutral Citation: [2018] IECA 143
• Docket Number: Record No: 262/2016
• Court: Court of Appeal (Ireland)
• Date: 15 May 2018

[2018] IECA 143

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 262/2016

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

D.W.

Appellant

Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, on the 31st of May 2016, pleaded guilty before the Central Criminal Court to counts 7 to 25 inclusive on Bill No CCDP0115/2014, being counts of rape, contrary to common law and as provided for in s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981. Each offence concerned the same injured party and occurred at a single address in County Cork. On the 25th of July 2016 the sentencing Court heard evidence in relation to the relevant facts, the impact on the victim and the appellant’s plea in mitigation. On the 29th of July 2016 he was sentenced on each count to 18 years imprisonment with the final six years suspended on certain terms, all sentences to run concurrently. The sentences were dated to take effect from the 29th of July 2016. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the sentencing judge erred in placing the seriousness of the matters before the sentencing court as being at the highest end of the spectrum, leading him to give this matter a headline sentence of 18 years’ imprisonment; (ii) the judge failed to have any or any sufficient regard to the remorse shown by the appellant; (iii) the judge failed to have any or any sufficient regards to the fact that the appellant entered a plea of guilty in early course; (iv) the sentence imposed by the judge was disproportionate and failed to have any sufficient regard to the circumstances and character of the appellant such that the appellant’s age and his medical situation were not adequately taken into account by the judge when giving sentence; (v) the judge failed to have any or any sufficient regard to the prospect of rehabilitation in structuring the end of the sentence appropriately and allowing sufficient time for rehabilitation; (vi) the judge failed to have any or any sufficient regard to the proportionality of the sentence imposed with regard to overall sentencing guidelines and in light of the above outlined grounds.

Held by the Court that it did not see fit to uphold any of the appellant’s grounds of complaint.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered 15th May 2018 by Mr. Justice Edwards .

Introduction

1 On the 31st of May 2016 the appellant pleaded guilty before the Central Criminal Court to counts 7 to 25 inclusive on Bill No CCDP0115/2014, being counts of rape, contrary to common law and as provided for in s.48 of the Offences Against the Person Act 1861, as amended, and s.2 of the Criminal Law (Rape) Act, 1981. Each offence concerned the same injured party, MG, and each offence also occurred at a single address in County Cork.

2 On the 25th of July 2016 the sentencing Court heard evidence in relation to the relevant facts, the impact on the victim and the appellant's plea in mitigation. On the 29th of July 2016 he was sentenced on each count to 18 years imprisonment with the final six years suspended on certain terms, all sentences to run concurrently. The sentences were dated to take effect from the 29th of July 2016. The appellant now appeals against this sentence.

The relevant facts

3 Detective Sergeant Michael Corbett told the sentencing Court that on the 31st of July 2013 the complainant made a statement of complaint to Gardaí. The complainant was born in 1963 and her parents lived in a small village in Co Cork. She was one of four children. In 1971 her father died and her mother later re-married. The complainant's new step-father was the appellant, DW. The complainant was about 11 years of age when the appellant moved in with the complainant's mother and her family. Shortly thereafter he began to abuse her. The house in which lived at this time was a three bedroom, semi-detached, property and the appellant would rape the complainant three to four times per week, usually on the landing. It would regularly occur when the complainant's mother was out of the house at Bingo on a Sunday night. On other occasions the appellant would rape the complainant when her mother was out working. He also sometimes raped the complainant upstairs on the landing even when her mother was downstairs, and Detective Sergeant Corbett told the court that on these occasions the complainant would be ‘gripped by fear’ that her mother would come upstairs. On yet other occasions the complainant was raped in the kitchen, in the garden shed and in other parts of the house.

4 Detective Sergeant Corbett's evidence was that the appellant's relationship with the complainant was one characterised by cruelty and abuse in every respect. When the complainant left school at the age of 14 to begin working, every penny she earned was handed over to the appellant who spent most of it on alcohol. Conditions in the house were described as ‘a living nightmare’ for MG. She was not allowed to have friends over or to have birthday parties. The appellant controlled her through physical beatings, rape and other forms of coercion. On one occasion she recalled being asked on a date by a work colleague. When she arrived home she found all her good clothes had been put to soak in the bath so she was unable to go out. On rare occasions she was permitted to attend a local céilí on condition that she be home by midnight; on these occasions if she arrived home late by a minute or two the appellant would subject her to savage beatings.

5 At age 15 MG became pregnant as a result of rape by the appellant. She later gave birth to a boy, D. The appellant coerced the complainant into concealing the child's paternity, forcing her to pass the child off as a work colleague's. Her mother also pregnant again at the same time, and they gave birth within weeks of each other. Her mother and herself shared the task of raising D. After D's birth the appellant left home for a period and got a job in a hotel in a nearby town, much to the annoyance of the appellant. While this provided her with temporary respite from the cycle of sexual abuse, rape and violence at the hands of the appellant she subsequently felt compelled to quit her job and move back home in order to protect her mother from the appellant. When she moved back in, the cycle of sexual abuse, rape and violence resumed. The last of the rape offences to which the appellant pleaded guilty occurred in this period.

6 In her victim impact evidence, which she gave on oath and which is set out in full later in this judgment, the complainant indicated that she became pregnant by the appellant for a second time. None of the charges in respect of which the appellant faced sentencing related to the sexual intercourse that led to this pregnancy. The evidence adduced was silent as to the complainant's age when she became pregnant for the second time, or indeed as to her age when her daughter was born, although it seems clear that it occurred at a time after the last rape offence covered by the indictment was committed. The appellant's presumption of innocence required the court below, and now requires this Court, to proceed on the assumption that this second pregnancy did not arise as a result of rape or any other crime. Nevertheless, the sentencing court did receive admissible evidence that the appellant was continuing to attempt to exert a degree of control and dominance over his step daughter even at this stage and it was entitled to have regard to that evidence, as are we. The complainant's evidence was that when the appellant discovered that she was pregnant on this occasion he pressurised her to have an abortion, but that she successfully resisted this pressure and carried her baby to term. She gave birth to a baby girl, M, on this occasion, which she gave up for adoption. Following this, the complainant moved out of home again, taking D with her. They moved into a rented mobile home in a town in an adjacent county, and the complainant supported herself and D by working in a local supermarket.

7 In 2004, tragedy struck and the complainant's son D died. This was described as a turning point for MG and in 2013 she reported her abuse to Gardaí. On the 9th of December 2013 the appellant was arrested on suspicion of rape, and he was detained at a Garda station under s.4 of the Criminal Justice Act 1984. He was interviewed in detention and made admissions to having full sexual intercourse with MG over a long period of time albeit that he maintained at that point that all sexual contact was consensual. He was charged with multiple rape offences and he offered to plead guilty approximately one week before he was scheduled to be arraigned and, if necessary, put on trial. However, it was accepted by the Sergeant in cross-examination that the indictment had contained more charges than were pleaded to and that the pleas to counts 7 to 25 inclusive were proffered as soon as an indication was received from the Director of Public Prosecutions that they would be acceptable.

The appellant's personal circumstances

8 The appellant was born on the 11th of August 1946 and was almost 70 years of age at the time of sentence. He has a number of previous convictions. These were all recorded on the 23rd of February 2015 when he was sentenced at Cork Circuit Criminal Court to four years' imprisonment with the final four months suspended in respect of a number of indecent assaults perpetrated on MG's siblings during the same period in which he had abused her. He has no other previous convictions.

9 The appellant has been a serious alcoholic for all of his adult life and he has never worked. He has...