DPP v Ficarelli
| Jurisdiction | Ireland |
| Judge | Birmingham P |
| Judgment Date | 03 July 2020 |
| Neutral Citation | [2020] IECA 179 |
| Date | 03 July 2020 |
| Docket Number | [11/20] |
| Court | Court of Appeal (Ireland) |
[2020] IECA 179
The President.
McCarthy J.
Kennedy J.
[11/20]
THE COURT OF APPEAL
Sentencing – Sexual assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Ficarelli, appealed to the Court of Appeal against severity of sentence. The sentence under appeal was one of two and a half years’ imprisonment that was imposed in the Dublin Circuit Criminal Court on 13th January 2020 in respect of one count of sexual assault. A sentence was imposed on that day in circumstances where the appellant had pleaded guilty at the arraignment hearing on 4th December 2019 and subsequent to that a sentence hearing had taken place on 20th December 2019. On that date the judge had adjourned matters to the start of the new term to allow him time to consider the case fully. Three grounds of appeal were relied on, these being: (i) that the headline sentence of five years was too high and that, consequently, the ultimate sentence imposed was also too high; (ii) that the judge erred in failing to allow time for the preparation of various reports; and (iii) that the judge erred in failing to agree to suspend a portion of the sentence.
Held by the Court that the ultimate sentence imposed was excessive. The Court began its consideration by recognising the seriousness of the incident, involving a sexual assault of a victim who was vulnerable at the time, asleep, and was in her own home, having consumed alcohol. The Court found that the sentence imposed diverged markedly from the sentences imposed in cases that might be regarded as broadly similar. The Court held that the sentence diverged, though to a lesser extent, from sentences imposed in the Court following successful undue leniency reviews. The Court held that the significance of that was much reduced by reason of the fact that the Court often makes the point that if somebody is incarcerated for the first time, following a successful undue leniency review, that this was something which would be particularly difficult to bear, and this is likely to see a sentence imposed that is less, perhaps appreciably less, than would have been imposed had the Court been sentencing at first instance.
The Court, in proceeding to resentence, took as its starting point the seriousness of the offence, but it acknowledged that there were many mitigating factors present. The Court began by identifying a headline or pre-mitigation sentence of four years’ imprisonment. The Court believed such a headline sentence was fully justified. In the circumstances, the Court reduced the headline sentence to one of two and a half years’ imprisonment, but it suspended the final six months of that sentence on the usual terms, and it also imposed a condition that the appellant will stay away from the injured party for a period of four years. Further, the Court made provision for a post-release supervision order for a period of one year. The court held that the appellant would be subject to the notification requirements of Part 2 of the Sex Offenders Act 2001 for a period of ten years as required by s. 8 of the 2001 Act.
Appeal allowed.
JUDGMENT of the Court delivered on the 3rd day of July 2020 by Birmingham P
This is an appeal against severity of sentence. The sentence under appeal is one of two and a half years' imprisonment that was imposed in the Dublin Circuit Criminal Court on 13th January 2020 in respect of one count of sexual assault. A sentence was imposed on that day in circumstances where the appellant had pleaded guilty at the arraignment hearing on 4th December 2019 and subsequent to that a sentence hearing had taken place on 20th December 2019. On that date the judge had adjourned matters to the start of the new term to allow him time to consider the case fully.
By way of background, it should be explained that the injured party is a Dutch national, aged 26 years, who had come to Ireland in February 2018 to take up employment with a multinational company. The appellant meanwhile is a 27-year old Italian national who, at the time of the events in question, had been living in Ireland some four or five years.
When the injured party came to Ireland, she sublet a room in the apartment in the Parkgate Street area of the city where the offence occurred. She shared the apartment with two young men, one of whom was the appellant.
The events in issue occurred on 27th April 2018. The 27th April is a national holiday in the Netherlands, known as “King's Day”, and the injured party went out with her boyfriend to socialise and mark the occasion. While socialising, she had consumed alcohol. She returned to the apartment and fell asleep on the couch. Having fallen asleep, she awoke to find someone pulling at her tights, pulling them down towards her thighs, and then there was penetration of her vagina and her anus. The sentence hearing dealt with the matter on the basis that what was involved was digital penetration.
In the aftermath of the incident, there was an exchange of WhatsApp messages between the parties. In one such message, the appellant said “I am so sorry, I meant to bring it up today, to tell you and apologise. I don't know what came over me and I'm so ashamed of myself. I haven't been able to concentrate on anything all day. I understand and respect your decision [to have nothing more to do with me] I really wish I could undo my actions”. However, the injured party reported matters to Gardaí who came to the apartment in possession of a search warrant. The relevance of Garda intervention is that the appellant attended at Kilmainham Garda station in the company of a solicitor on 10th July 2018. He had with him a prepared statement which he handed over. The statement accepted that there had been sexual activity, but suggested that what had happened was entirely consensual, and indeed, that it had been initiated by the injured party.
Counsel on behalf of the appellant was reluctant to proceed with the sentence hearing. She indicated that she required a Probation Report and/or a report from a psychologist. However, the judge did not accede to the request for an adjournment. He indicated that he was disposed to take up the matter, and would, if necessary, adjourn to obtain any report that he felt to be required. Ultimately, he proceeded to sentence, indicating that he did not need a report because he was going to operate on the basis that the appellant was a person of previously good character who had never offended before and was very unlikely to ever offend again.
The sentence hearing heard a very powerful victim impact report which was read to the Court by the complainant. It is clear that this incident had a very profound effect on her. At its most basic, it involved her having to leave her apartment, stay in a hotel, initially, and then spend a period to time in emergency accommodation. More fundamentally, she explained that her trust in everybody was gone along with her sense that there was something good left in the world.
In terms of the background and personal circumstances of the appellant, he was, as stated, a 27-year old Italian with a fine work record. He had been living in Ireland some four or five years at the time of the offence. He had no previous convictions, either in Ireland or Italy or anywhere else. A number of very positive testimonials were put before the Court which referenced, among other things, his involvement in the scouting movement in Italy. Some of those testimonials referred to his respectful and entirely appropriate relationship with a number of females.
While the judge heard the evidence and submissions in relation to sentence on 20th December 2019, rejecting the appellant's application for an adjournment so that a Probation Report and/or a psychologist's report could be obtained, he deferred his decision until the start of the new term. For some reason or other, there does not seem to be a transcript of his sentencing remarks available. However, counsel on both sides have prepared an agreed note of what the judge had to say. From that note, it emerges that in the course of his sentencing remarks, the judge referred to the offence as falling at the midrange of severity. In response to an invitation from prosecution counsel, he indicated that he saw the headline or pre-mitigation sentence as being one of five years' imprisonment. Also, in the course of his remarks, he spoke of the appellant having “perfect mitigation”.
The appellant sought to appeal his sentence on the following grounds:
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(i) That the sentence imposed was excessive in the circumstances of the case;
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(ii) That the sentencing judge erred in law in refusing to direct or to allow time for the preparation of a psychological report in respect of the appellant;
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(iii) That the sentencing judge erred in law in failing to order a Probation Report in respect of the appellant;
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(iv) That he judge erred in law in identifying a headline sentence of five years' imprisonment;
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(v) That the sentencing judge erred in law in placing excessive weight on aggravating factors in the case;
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(vi) That the sentencing judge erred in law in failing to take any or adequate account of the appellant's personal circumstances and mitigating factors, particularly in circumstances where the judge described the appellant's mitigation as “excellent, if not perfect”;
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(vii) In particular, the sentencing judge erred in law in failing to attach any or adequate weight to the fact that the appellant:
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(a) made an immediate admission of guilt to the appellant and apologised to her directly;
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(b) Pleaded guilty at an early stage;
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(c) Cooperated with the Garda investigation;
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(d) Had no previous...
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