DPP v Finlay

• Jurisdiction: Ireland
• Judge: Birmingham P
• Judgment Date: 05 November 2018
• Neutral Citation: [2018] IECA 360
• Docket Number: [88/2018]
• Court: Court of Appeal (Ireland)
• Date: 05 November 2018

[2018] IECA 360

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

Whelan J.

[88/2018]

IN THE MATTER OF AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

RAY FINLAY

APPELLANT

Crime & sentencing – Sexual offences – Counts of rape and sexual assault – Application to extend time to appeal against sentence

Facts: The appellant had pled guilty to multiple counts of vaginal and anal rape, as well as sexual assault. He was sentenced to a term of 14 years imprisonment, and now sought to apply for an extension of time in which to appeal against the severity of his sentence.

Held by the Court that the application would be dismissed. The appellant had failed to demonstrate that the sentencing judge had failed to correctly gauge the aggravating and mitigating factors, and the interests of justice were best served by giving the complainants finality and closure.

JUDGMENT (Ex tempore) of the Court delivered on the 5th day of November 2018 by Birmingham P .

1 This is an application seeking to enlarge the time within which to appeal against the severity of sentence.

2 The sentences sought to be appealed were imposed on 11th November 2016 in the Central Criminal Court. The combined or aggregate sentence was one of 14 years and was imposed in respect of three counts of rape where each count related to a different complainant and injured party. The appellant had entered pleas of guilty to three counts of rape – vaginal rape – four counts of sexual assault and, in the case of one complainant, one count of s. 4 rape or anal rape.

3 The application to extend time is grounded on an affidavit of the would-be appellant of 26th January 2018. While the affidavit was sworn in January 2018 and there is a notice of appeal of the same day, the notice of application to extend time is dated 22nd March 2018.

4 The basis on which the appellant says time should be extended is set out at paras. 10 and 11 where he says:

'Subsequent to this sentence being imposed, I discussed the consequences thereof with my legal advisers, including Senior Counsel and Junior Counsel. I say that I was advised my options in respect of the sentence imposed included:

(a) accepting the sentence and serving it accordingly or

(b) appealing against the severity of sentence.

In that regard, it was explained that I could lodge a Notice of Appeal from prison or I could instruct my solicitor to do so on my behalf. There was further explained to your deponent that any appeal must be lodged within 28 days of 11th November 2016. Your deponent formed the view that it would be desirable to lodge an appeal within the aforementioned 28-day period. I formed this view on foot of legal advice received in the aftermath of the sentence hearing on 11th November 2016 and having given consideration to the advice received thereafter. However, having received such a lengthy sentence, I did not process this advice appropriately in the immediate aftermath thereof. I did feel capable of dealing with these matters. In these circumstances, I did not take the necessary steps to act on the advice received. Furthermore, having entered a guilty plea in respect of the matters forming the subject matter of these proceedings, a part of me simply wished to put matters behind me and complete my sentence. With the passage of time, I have given the advice received renewed consideration and regret not issuing an appeal within the prescribed time period. I believe that the learned sentencing Judge imposed a...