DPP v G. McC

• Jurisdiction: Ireland
• Judge: Geoghegan J.
• Judgment Date: 31 October 2003
• Neutral Citation: 2003 WJSC-CCA 4030
• Docket Number: [C.C.A. No. 184 of 2002]
• Court: Court of Criminal Appeal
• Date: 31 October 2003

DPP v. MCC (G)

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

G.McC

Applicant

2003 WJSC-CCA 4030

Geoghegan J.

Kearns J.

Herbert J.

184/02

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Sentence

Mitigating factors - Approach to be applied in deciding whether maximum sentences should be imposed or whether credit given for mitigation in concurrency of such sentences - Maximum sentences imposed - Whether appropriate (184/2002 - Court of Criminal Appeal - 31/10/2003)

People (DPP) v McC (G) - [2003] 3 IR 609

Citations:

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S6(1)

DPP V MCKENNA 2002 2 IR 345 2002/9/2194

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S5(1)(A)

DPP V TIERNAN 1988 IR 250

R V OLIVER & ORS 2003 1 CAR 28

SEX OFFENDERS ACT 1997 (UK)

1 Judgment of the Court delivered by Geoghegan J. on 31st day of October 2003

2 This is an application for leave to appeal against a life sentence for male rape, the maximum sentence of fourteen years imposed in relation to offences under the Child Trafficking and Pornography Act, 1998and sentences of five years for other offences under that Act and offences of sexual assault/indecent assault, all sentences to run concurrently. It was agreed that a number of other similar offences would be taken into consideration.

3 The applicant pleaded guilty to each of the offences and he had no previous convictions. He had also, as was acknowledged by the sentencing judge (Carney J.), cooperated with the gardaí. In these circumstances the imposition of maximum sentences would on the face of it seem unusual. It would appear, however, that the learned judge decided that having regard to the decision of this court (Judgment delivered the 9 ^th of May, 2002) in People (DPP) v. McKenna he would have been entitled to impose consecutive sentences but that instead of so doing, he would impose severe concurrent sentences thereby giving credit for any mitigating factors for which an accused would normally be entitled to credit. The question of whether that was a correct approach will be discussed later in the judgment.

4 One of the counts to which the applicant pleaded guilty was a general one of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act, 1998. A sentence of five years was imposed in respect of that count. All the remaining counts to which a plea of guilty was made related to one or other of six named victims. The factual background to the case is therefore best explained by reviewing what happened to each of these victims in turn.

5 It would seem appropriate to start with the victim who was raped namely, C. McC. He is a nephew of the applicant and he had been invited by the applicant to help him paint a house. There was no one else in the house and they both slept the night in it after C. McC. had been introduced by his uncle to alcohol for the first time in a local pub. After the drinking they went back to the house and stayed in it that Saturday night. On the Sunday morning the applicant told his nephew, C., that he would show him some different forms of sex. C. was aged approximately thirteen years at the time. The applicant arranged that they would both stand up half naked and both pull down their bottoms and underpants. The applicant inserted his penis into C.'s anus and at the same time tried to masturbate C. The applicant ejaculated inside of C. and at that point C. realised he had been raped. There was also a count of sexual assault on C. This was when C. was approximately fourteen years of age and he was visiting his grandparents where the applicant lived. He visited the applicant's bedroom and the applicant who had his clothes on asked C. to touch his penis which C. did. This fondling was outside of the clothes. The applicant became aroused and asked C. if he wanted to make a video. C. was told that the applicant would not show his face in the video. C. at the request of the applicant took off his tracksuit bottoms and underpants. The applicant had a camcorder which he held in one hand and in his other hand he held C.'s penis. The applicant then proceeded to masturbate C. while he held the camcorder over him recording it. The only conversation which the applicant had with C. was to ask him to have sex with him but C. was not sure if the applicant meant by that masturbation or full sex. The applicant then asked C. to watch the video on a camcorder while he, the applicant, masturbated himself. C. saw the applicant masturbating. The court below was informed that a video of this assault was available if the court required to see it. This matter will be returned to later in the judgment.

6 The second victim was I. McC. The applicant pleaded guilty to a count of knowingly producing child pornographic images of I. McC. contrary to s. 5(1)(a) of the 1998 Act. He agreed to allow another count of allowing a child in his care namely, one I. McC., to be used for the production of child pornography contrary to another provision of the same Act. The background to these offences was as follows. I. was ten years old and living at home with his mother and sister. On a weekend night his uncle, the applicant, made a surprise visit to the house. The applicant brought I. out and pretended that he had permission to take him away for the night which he did not have. They travelled for about 1½ hours and came to an hotel in a country town. After watching, television in a bedroom in the hotel the applicant had a shower and told I. to have a shower likewise. After the showers the applicant started to talk to I. about sex explaining to him what a woman's vagina looked like. I. was then asked to remove his pants and to allow a picture be taken of him by the applicant holding up his penis, I. being told that what was underneath his penis was somewhat like a woman's vagina. I. was then told to lie on his tummy and his bottom was photographed. Again, he was told it was to indicate what a woman's vagina looked like.

7 The third victim was K. C. He was born on the 28 ^th of September, 1985 and the applicant pleaded guilty to a production of child pornography count in respect of him, the offence having been committed in 1998. As in the case of I. McC. a count in relation to the offence of allowing K. C. a child in his care to be used for the production of child pornography was agreed to be taken into account. .K. C.'s mother was a friend of a brother of the applicant. That is how K. got to know the applicant. He became aware that the applicant had a computer and the applicant, by arrangement with K.'s mother, agreed to help K. with computer skills. However, the applicant proceeded to show K. pornographic material on the computer. This took the form of naked and topless women. The applicant told K. about the models on the computer and that there was a great deal of money to be made modelling and suggested that K. might want to model. The applicant then proceeded to take photographs of K. using a camera connected to the computer and starting from a dressed state to a state of undress to naked. K. became sexually aroused while watching the pornography and he was aware that he was being photographed. K. was assured by the applicant that he would not put it on to the computer and that he just wanted to see what they looked like. The ultimate photographs were never shown to K. and K. never disclosed what happened until the gardaiá produced them.

8 The fourth victim was T. K. He was born on the 5 ^th of November, 1983. The applicant pleaded guilty to an offence of sexual assault on T. K. at an hotel in the west of Ireland in May 2000 and to the statutory offence of production of child pornography and there was taken into consideration a further count of allowing him to be used for the production of child pornography he being in the care of the applicant. T. K.'s mother is a cousin of the applicant. After the death of a grandmother the applicant invited T. to his home in Dublin to spend the weekend with him. After showing him some computer skills he proceeded to show T. some pornography both heterosexual and homosexual on the computer. T. was told about the possibility of making money as a model. T. agreed to have pictures taken. The applicant photographed T. from a dressed state undressing at a very slow rate while the applicant photographed him at the different stages. T. was then instructed to put on a different pair of underpants which were tighter and different shots of him were taken from different angles in the bedroom. The following weekend T. was taken with his brother B. to an hotel in the west of Ireland by the applicant and the applicant had oral sex with him and then masturbated him to the point of ejaculation.

9 B. K. already mentioned was the next victim. He was born on the 2 ^nd of March, 1985. The applicant pleaded guilty to two counts of knowingly producing child pornographic pictures of B. K. and two other counts of allowing B. K. to be used for the production of pornographic pictures, he being in the care of the applicant were to be taken into account. The applicant also pleaded guilty to a count of sexual assault against B. K.. B. K. had met the applicant and had become acquainted with him at the same time as his brother T. He was invited to join the applicant and T. for a weekend. While T. was having a shower and after alcohol had been supplied to B., the applicant persuaded B. to allow him take some photographs and again it was on the basis of slow moving undress. There was a special camera connected to the internet. B. was asked to remove his underpants and was photographed in the nude. He was then asked to masturbate by the applicant but he did not. B. was invited a second weekend to an hotel by the applicant and he was told that photographs were needed for the internet company. B. was asked to take off all his clothes and pose in...