DPP v F.G.

• Jurisdiction: Ireland
• Judge: Birmingham J.,Sheehan J.
• Judgment Date: 01 December 2014
• Neutral Citation: [2014] IECA 42
• Docket Number: [2013 No. 206 CJA]
• Court: Court of Appeal (Ireland)
• Date: 01 December 2014

[2014] IECA 42

THE COURT OF APPEAL

The President

Birmingham J.

Sheehan J.

[2013 No. 206 CJA]

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

The People at the Suit of the Director of Public Prosecutions

Appellant

and

F.G.

Respondent

Criminal Law – Sentencing – Leniency of Sentence - s. 2 of the Criminal Justice Act 1993 – Sexual Offences on a Child

Facts: The respondent pleaded guilty to repeated vaginal, anal and oral rape as well as sexual assault of the younger daughter of his neighbours. The circumstances surrounding the offences that took place over a three year period were particularly deprave and perverse. The judge sentenced the accused to eight years imprisonment on each count and five year sentences in respect of five sexual assault charges. All of the sentences were to run concurrently, with an order for post release supervision for a period of eighteen months. The accused was also declared a sex offender. The Director of Public Prosecutions applied pursuant to s. 2 of the Criminal Justice Act 1993 on grounds that the sentence imposed was too lenient.

Held by Birmingham J: The court stated that the offences had to be placed at the highest level of gravity on the scale of major sexual offences. Counsel for the accused put forward a number of mitigating factors. The court considered these along with a psychiatric report and the fact the accused had no previous convictions. The court was satisfied that the sentencing judge fell into an error of principle in considering that eight years imprisonment on rape charges were appropriate in this case. The court quashed the sentences for being unduly lenient and imposed a more sever sentence. The court considered additional information such as an up-to-date psychiatric report and victim impact report before resentencing the accused. The court sentenced the accused to 14 years on each of the 15 counts of rape to run concurrently but did not interfere with the sexual assault charges.

1 The respondent in this case pleaded guilty to repeated vaginal, anal and oral rape as well as sexual assault of the young daughter of his neighbours. The child was five years of age when the first offence against her was committed and the offending took place over a period of three and half years. They were committed in and about her family home. They were accompanied by circumstances of particular depravity and perversion, including incidents that happened in an adjacent shed of which I will spare the court the sordid details.

2 The offences to which the accused pleaded guilty took place between July 2004 and January 2008, a period of three and half years. For each of these years, from 2004 to 2008, there is a series of the most serious sexual crimes, which I have mentioned. These pleas were entered on the basis that other matters could be taken into consideration.

3 The trial was fixed for 29th of April 2013, and the accused pleaded guilty on 26th. The sentence hearing was on 29th of July 2013, and the learned trial judge imposed a sentence on 31st of July 2013. On the fifteen rape counts, the judge sentenced the accused to eight years imprisonment on each count, and on the five sexual assault charges he imposed five year sentences for each. All of the sentences were to run concurrently, with an order to post release supervision for a period of eighteen months. The accused was also declared a sex offender.

4 The D.P.P. applies to this Court for a review of the sentences on the grounds of undue leniency pursuant to s. 2 of the Criminal Justice Act 1993. The facts of the case are outlined in the submissions of the parties and they were given in the evidence of Garda Sloyne to the trial court.

5 The trial judge was informed about other proceedings concerning the victim of these offences, which were pending when he sentenced the respondent, and for that reason, he did not say anything about the facts of the case, neither did he give a reasoned decision showing his consideration of the case and balancing of the different elements. It is not possible, therefore, to note the judge's thinking process.

6 It is clear that the offences must be placed at the highest level of gravity on the scale of major sexual offences. The child victim was just five years of age when the respondent began his invasions of her body in every possible way. The violent abuse continued, as I have said, for a long period. He was a neighbour at this time who was in his 40s and having a sexual relationship with the child's mother; the latter had serious problems of her own, as did the child's father. The violations were frequent, forcible and painful for the victim, and she was subjected to even more humiliation by some modes of perverse gratification that the respondent favoured.

7 On any appraisal of the facts, the case...