DPP v Gierlowski

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IECA 128
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 155/2018

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Slawomir Gierlowski

Appellant

[2022] IECA 128

Birmingham P

McCarthy J

Donnelly J

Court of Appeal Record No. 155/2018

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr Justice McCarthy on the 31st day of May 2022

1 On the 27th of July 2021 we dismissed this appeal so far as it related to sentence, indicating that we would give our reasons later, which we now do. That dismissal followed the dismissal of the appellant's appeal against conviction. There were three separate incidents, involving three unrelated injured parties, occurring on the 11th of September 2011, the 3rd of September 2015 and the 16th of May 2016 respectively. We refer to the judgment of this court addressing the issue of conviction ( DPP v Gierlowski [2021] IECA 13) in which greater detail as to the facts and circumstances of the offences appear and which should be read with this judgment. The emphasis in this judgment is on facts immediately relevant to sentence. The offences were not charged in the indictment in the order in which they occurred.

2 The appellant was sentenced on the 17th of May 2018 on Bill No: DUDP1055/2016. In practical terms, because there were consecutive elements involved, the total period of imprisonment was set at 22 ¹/₂ years with the final four years suspended upon conditions. The following are the offences and the sentences imposed thereon. These are set out in the order in which they were committed:-

Offences of the 11th of September 2011

• — Count 7 (false imprisonment) – a sentence of five years' imprisonment, with the final four years suspended, to commence on the legal termination of the sentence of Count 4;

• — Count 8 (sexual assault) – a sentence of five years' imprisonment, with the final four years suspended, to commence on the legal termination of the sentence of Count 4;

• — Court 9 (assault causing harm) – a sentence of 4 ¹/₂ years' imprisonment, with the final 3 ¹/₂ years suspended, to commence on the legal termination of the sentence of Count 4;

Offences of the 3rd of September 2015

• — Count 4 (false imprisonment) – a sentence of 9 ¹/₂ years' imprisonment to commence on the legal termination of the sentence of Count 1;

• — Count 5 (sexual assault) – a sentence of 9 years' imprisonment to commence on the legal termination of the sentence of Count 1;

• — Count 6 (assault causing serious harm) – a sentence of 4 ¹/₂ years' imprisonment to commence on the legal termination of the sentence of Count 1;

Offences of the 16th of May 2016

• — Count 1 (false imprisonment) – a sentence of eight years' imprisonment;

• — Count 2 (assault causing harm) – a sentence of 4 ¹/₂ years' imprisonment;

• — Count 3 (possession of an article intended to cause injury, incapacitate or intimidate) – a sentence of 4 ¹/₂ years' imprisonment.

3 That suspension was subject to a number of conditions as follows:-

• a. That he would keep the peace and be of good behaviour;

• b. That he would submit to any psychological or psychiatric assessment as and when directed by the Probation Service or treatment provider, as and when directed by the Probation Service; and

• c. The accused while in custody and post-release shall remain under and abide by all directions of the Probation Service.

4 A further condition was imposed in relation to Count 8 (sexual assault):-

a. The accused be screened for, attend, actively participate in and complete the sex offender programme run by the prison, probation and psychology services, or such equivalent programme to the satisfaction of the Probation Service and treatment provider, and [ sic] be completed as and when directed by the Probation Service.

5 In relation to Count 8, the court also made an order pursuant to Part 5 of the Sex Offenders Act 2001 for post-release supervision for a period of nine years. The terms of the supervision were:-

• a. The accused shall submit to any psychiatric or psychological assessment as directed by the Probation Service;

• b. That he should follow all directions of the Probation Service;

• c. The accused abide by any curfew imposed by the Probation Service;

• d. The accused shall keep a travel log outlining the journeys he makes daily, routes, start time, end time, the purpose of the journey, the means of transport and the name or names of persons accompanying him, if any, which log shall be made available to the Probation Service and/or An Garda Síochána immediately upon request by them;

• e. The accused shall notify the Probation Service and An Garda Síochána of his place of employment, his address, telephone numbers and immediately notify them of any change of address.

The Offences and their Effects on the Victims

Offences of the 11th September 2011

6 The earliest of the offences involved an attack on A (also referred to as “ the first complainant”) who on the 11th of September 2011, was returning to her home from a night out at approximately 3am when she was attacked by a man in the Clondalkin area who transpired to be the appellant. The man brought her to the ground, placing one hand on her mouth and the other on her genital area under her skirt but outside her underwear, for approximately three to five seconds. She managed to stand but was brought to the ground again. She managed to bite and scrape the man's face. She was punched a number of times to her face before she was released and managed to get inside her home. The appellant was convicted of offences of false imprisonment, sexual assault and assault causing harm (Counts 7, 8 and 9 on the indictment).

7 Following the attack, the victim attended the emergency department of Tallaght Hospital where she was found to have significant swelling and bruising around her right eye as well as to her nose with a fracture thereof also. In due course she made a full physical recovery. However, the offences left her experiencing shock and trauma, difficulty sleeping for months and she did not wish to see her own garden or the driveway of her home. She also was unable to work while she was inflicted with visible injuries directly after the attack. The victim has continuing fears of walking on her own and no longer does so at night time.

Offences of the 3rd of September 2015

8 The offences committed second in time involved B (also referred to as “ the second complainant”) who, on the 3rd of September, 2015, was returning home from a night out at approximately 1am when, again in the same road in Clondalkin, a man who transpired to be the appellant attacked her; she was restrained from behind by what felt like a thick leather belt around her neck – effectively with a ligature. She was brought to the ground where tape was wrapped around her head and hands and whereupon she was sexually assaulted in the course of which the appellant ejaculated – semen was found in her perianal area and on her underwear. The appellant threatened to kill her and the victim believed that she was going to die – indeed at one point, she thought that she was actually dying because she had the sense of becoming lightheaded (no doubt, it seems proper to infer, because of the use of the ligature or tape). When disturbed, the appellant left her lying on the ground with the belt around her neck and tied with the tape whereby she had difficulty breathing – he had pulled off her clothes and she was naked from the waist down. In the course of the attack, he had dragged her behind the car and stopped merely because he was disturbed by third parties who assisted her. She suffered great physical and psychological harm. In respect of the former she sustained a burst blood vessel to the right eye, bruising and swelling to the lower lip, a gash to the right cheek, cuts and abrasions to the arm, shoulder and left wrist as well as scrapes to the right wrist and right knee. She also had extensive bruising to her legs, thighs and at the back of her head.

9 The victim suffers from extreme anxiety since the attack and this has become progressively worse leading to isolation and an adverse interference with her familial and social relationships. She has suffered sleep disturbance and every aspect of daily life has been adversely affected. It has left the victim “ feeling that home was tainted and I didn't feel safe there” and “there will always be that association now”. In her victim impact statement, she referred to the fact that the trial process caused her to relive the trauma. Further, she felt violated having to face her attacker in court and as a direct consequence she required counselling after the trial.

Offences of the 16th of May 2016

10 The final date of offences of the present series involved C (also referred to as “the third complainant”); she gave evidence that she left her home at approximately 6:40am to walk to the Red Cow Luas stop to go to work – in other words, within the area which the other attacks had taken place; in Clondalkin. The victim stated in evidence that as she was walking two arms came from behind her and soared over either side of her. She saw a cloth in the left hand and a knife in the right hand of the appellant. The knife was raised to her right cheek and motioned down towards her neck. She grabbed the knife with her left hand, pulled it down, screamed and turned around, at which point the appellant ran back towards the entrance to the laneway in which the attack took place. She ran in the opposite direction and was aided by passers-by who contacted emergency services. The third complainant was taken to hospital and she suffered significant tendon injuries to her left middle, ring and little fingers. She was discharged on the 18th of May 2016. The tendons ruptured while she was performing hand exercises and had to be repaired subsequently on the 31st of May 2016. She is expected to suffer long-term mobility issues.

11 The victim...