DPP v F (D)

 
FREE EXCERPT

[2014] IECA 28

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

168/12
DPP v F (D)
The People at the Suit of the Director of Public Prosecutions
Respondent
V
A.L.
Appellant

89/2013 - Birmingham Sheehan Edwards - Court of Appeal - 9/12/2014 - 2014 14 4012 2014 IECA 28

Sentencing – Sexual assault – Severity of sentence – Appellant seeking to appeal against severity of sentence – Whether sentences were disproportionate

Facts: The appellant sexually assaulted Ms EO”R and Ms AD in 2007. The matter came before the court and there was a plea forthcoming in respects of the offence involving EO”R, but in the case of AD the matter went to a jury trial and the appellant was convicted on one of the two counts that he faced. In the Circuit Court, the plea focused on the fact of no previous convictions, of the appellant”s good work record, of his loss of career, of his difficulties with alcoholism and his efforts to rehabilitate himself. It focused also on the attempted suicide involving the overdose and the fact that he was in a coma for seven days thereafter. The sentences imposed upon him in March, 2013 were three years in respect of the EO”R offence and five years in respect of the AD offence, the sentences being concurrent, imposed in respect of two counts of sexual assault. It was pointed out that this offending had resulted in the loss of his home, his career and his marriage. It was pointed out that there was a belated acceptance of the jury verdict and along with that, a belated expression of remorse. The judge took the view that the AD offence was at the upper end of the scale and the EO”R offence at the lower end of the scale. There was an exchange at the sentence hearing between the trial judge and defence counsel, with the judge referring to the fact that one count relating to Ms AD was still pending and also making reference to the fact that there were other counts on the indictment apparently involving other family members, and the judge was indicating that considerable credit would be given if an approach was taken that would see all counts disposed of on that occasion and matters brought to a final resolution. The appellant appealed to the Court of Appeal against the severity of the sentences. He suggested that the exchange that was precipitated by the trial judge between himself and the defence counsel meant that there was a perception that pressure was being applied and when the plea that was being canvassed was not forthcoming, that it ended up in a situation where the appellant was sentenced for an offence other than those that he had been convicted or pleaded of. He also claimed that the sentences are disproportionate and it was said that the window opening to that conclusion was to be found in relation to the sentence of three years imprisonment, which could not be possibly justified in respect of an offence that has to be seen as being very much at the lower end of the spectrum.

Held by Birmingham J that in respect of EO”R, the physical act that constituted the assault can be regarded as being at the lower end of the scale but there were unpleasant dimensions added by the fact that the injured party”s young daughter was present and also the fact that this was a second offence against members of the same family in a family home. The Court”s view was that there was an error of principle, that the sentences imposed do represent a significant departure from sentences that have in the past been imposed for comparable offences. The Court therefore set aside the sentences imposed in the Circuit Court.

Birmingham J held that the Court would substitute the three year sentence with eighteen months imprisonment. The Court substituted the five year sentence with three years imprisonment. Both sentences were to run concurrently from the date that was specified by the sentencing judge. The appellant was to remain on the sex offenders register. Twelve months post release supervision was held to be appropriate.

Appeal allowed.

Mr. Justice Birmingham
1

In this case the appellant Mr. L. appeals against the severity of a sentence that was imposed on him on the 3rd May, 2013. The sentence under appeal is one of six years imprisonment with provision also being made for six years post release supervision.

2

The sentence was imposed in respect of one count of sexual assault. That one count referred to two victims. The maximum...

To continue reading

REQUEST YOUR TRIAL