DPP v Farrell

 
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[2014] IECA 51

THE COURT OF APPEAL

Birmingham J.

Irvine J.

Edwards J.

269CJA/11
DPP v Farrell
In the matter Section 2 of the Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
v
Christopher Farrell
Respondent

269CJA/2011 - Birmingham Irvine Edwards - Court of Appeal - 17/12/2014 - 2014 14 4019 2014 IECA 51

CRIMINAL LAW (RAPE) ACT 1981 S4

DPP, PEOPLE v TIERNAN 1988 IR 250

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

DPP v DROUGHT UNREP CHARLETON 14.5.2007 2007 IEHC 310

Sentencing – Rape – Undue leniency – Appellant seeking to appeal against sentence – Whether sentence was unduly lenient

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Judgment of the Court ( ex tempore) delivered on the 17th day of December 2014 by Mr. Justice Birmingham

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1. In this case the Director of Public Prosecutions has applied to this Court for a review of sentence imposed contending that the sentence imposed was unduly lenient. The sentence in question was imposed on the 28 th October, 2011 and the sentence hearing was consequent on a contested trial which took place between the 11 th and 22 nd July, 2011.

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2. The offences in respect of which sentences were imposed, and which are now the subject of the request for review, were as follows:

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(a) on count 1, an attempted rape in a motor vehicle on the 16 th September, 2007 of J.C., in respect of which a sentence of four years was imposed;

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(b) an offence under s. 4 of the Criminal Law Rape Act, that is to say oral rape, on the 16 th September, 2007 of J.C., in respect of which a sentence of six years was imposed;

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(c) Rape of J.C. on the same day, in respect of which a sentence of six years was imposed;

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(d) an offence of false imprisonment of J.C. in respect of which a sentence of four years was imposed;

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(e) a sexual assault on D.McG. on the same date.

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All sentences were to be concurrent and all were to date from the 22 nd July, 2011.

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3. In seeking the review, the Director is critical of the sentence hearing and the sentencing process, which the Director identifies as flawed. It is said that the aggravating features were dealt with in a summary or cursory fashion, whereas everything that could possibly be said in favour of the appellant was dealt with in great detail giving rise to a real imbalance. It said that there was a failure to focus on the fact of premeditation and planning, both of which were clearly features of the offences. It was said that there was inadequate attention to the impact that the offences had on the victims and an overstressing of the fact that the victim impact reports ended on what was seen as a hopeful note. It said that there was an over emphasis on an apology, given that the apology came late in the day and specifically that it came only after conviction and only after the injured parties had had to participate in the trial, give evidence and be subject to cross-examination.

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4. It said that there was a mistake in dealing with the case on the basis that there were no relevant previous convictions as that there were in fact relevant previous convictions. There were two convictions for assault, which showed a propensity for violence, and one of those was an offence of assault causing harm on a female. It said that in all the circumstances this was a case where the sentencing judge should have considered actively the question of consecutive sentences. The DPP, through her counsel, submitted to the trial judge that the sexual assault offence, the offence in which Ms.McG. was the injured party, was a midrange offence, whereas the J.C. rape offences were at the high end.

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5. The basic facts of these two offences which occurred within a very short period of time of each other were these: Ms.McG., who is from the mid Louth area, had been socialising in Drogheda. She had attended a number of licensed premises and night clubs and she found herself close to a fast food restaurant and she was at that stage looking for a taxi. She was offered a lift by Mr. Farrell and next she recalls waking up in a field, the accused was kissing her, her jeans were loose, the zips of her jeans were down and as she describes it, he was rooting at her vagina. It is true that the appellant did desist and that he eventually brought her home and indeed he asked for a...

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