DPP v Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 17 December 2014
• Neutral Citation: [2014] IECA 51
• Court: Court of Appeal (Ireland)
• Date: 17 December 2014

[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

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

Facts: The respondent, Mr Farrell, was sentenced in October 2011 in respect of: an attempted rape in a motor vehicle in September 2007, in respect of which a sentence of four years was imposed; an offence of oral rape under s. 4 of the Criminal Law Rape Act, in respect of which six years were imposed; rape, in respect of which six years were imposed; an offence of false imprisonment in respect of which four years were imposed; and a sexual assault. All sentences were to be concurrent and to date from July 2011. The DPP applied to the Court of Appeal for a review of the sentence imposed contending that it was unduly lenient. The DPP was critical of the sentence hearing and the sentencing process, saying 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 an imbalance. The DPP said that there was a failure to focus on the fact of premeditation and planning. 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. The DPP said that there was an over emphasis on an apology that 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. The DPP said that there was a mistake in dealing with the case on the basis that there were no relevant previous convictions in that there were in fact relevant previous convictions; there were two convictions for assault, which showed a propensity for violence. The DPP said that in all the circumstances this was a case where the sentencing judge should have considered actively the question of consecutive sentences.

Held by Birmingham J that the two previous offences were each significant and serious offences in their own right and that it was necessary and appropriate in those circumstances that the trial judge consider the question of making any sentences that he was imposing consecutive. In a situation where the offences occurred within such a short period of time, the Court did not take the view that deciding not to make the sentences consecutive amounted to an error of principle, but that if the sentences were not to be made consecutive then it was necessary that the trial judge would recognise that the benefit had been afforded to the person being sentenced and that that required, when considering the range of sentences that were available, that consideration would focus on the higher end rather than the lower end of the range that was under consideration, considering People (DPP) v Drought [2007] IEHC 310. The Court was of the view that a judge has to be scrupulous to observe the separation of powers, but that equally if a judge is aware of a report, it is hard to see that he is going to be in a position to totally ignore it. The Court stated that if it is a report that is going to have a significant influence on his thinking, it would be appropriate that the parties should be informed of the fact that the report is one to which regard is likely to be had, and that they would be invited to comment or make submissions and to put evidence before the court.

Birmingham J held that the sentence imposed was very seriously inadequate and was to a very significant extent unduly lenient. In the circumstances, in respect of the two counts where sentences of six years had been imposed, namely the oral rape and the rape charge, the Court quashed those sentences and, in place of the sentences of six years which had been imposed in each case, imposed a sentence of twelve years in each case.

Appeal allowed.

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

2 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.

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

4 (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;

5 (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...