DPP v Glennon

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 28 June 2018
• Neutral Citation: [2018] IECA 211
• Docket Number: [07/2017]
• Court: Court of Appeal (Ireland)
• Date: 28 June 2018

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V.

RYAN GLENNON

APPELLANT

[2018] IECA 211

[07/2017]

THE COURT OF APPEAL

Criminal law – Sexual offences - Rape - Appeal against sentence - Standard of proof - Unduly lenient - Mitigating and aggravating factors - Suspended sentence - Nature and gravity of offence

Facts: These proceedings concerned an application by the Director of Public Prosecutions ("the appellant") to quash the sentences that had been imposed on the respondent by the Central Criminal Court on the 4th February 2013, on the basis that they were unduly lenient. The respondent had been convicted by a jury of 9 counts of rape and 8 counts of sexual assault, and sentenced to 7 years imprisonment for the rape offences with 5 of those years suspended for 5 years, 5 years imprisonment for one of the sexual assault offences with 3 years of those years suspended, and six months imprisonment for each of the other sexual assault offences. All of these sentences were to run concurrently.

It had been found that at the time of the commission of the offences, the respondent, who at that stage was 47 years old, was married to the aunt of the 15 year old victim. All of the offences were committed during a 5 week period in 1991 when the victim was spending her summer holidays in the respondent's home. In sentencing, the trial judge had found that there was evidence to suggest that the respondent had lived a commendable life before and after the 5 week period that the victim had spent in the respondent's house. There was certainly nothing to suggest that he had committed any further criminal offences outside this time frame. Further, the respondent was 67 years old at the time of sentencing and a report of the Inspector of Prisons dated the 29th July 2010 was relied upon in determining that the prison conditions of Mountjoy Prison would be particularly difficult for a man of his age. These factors had convinced the trial judge to suspend a significant proportion of the terms of imprisonment.

The appellant argued that the trial judge erred in principle in failing to have sufficient regard to the gravity of the offences in question and the aggravating features associated with their commission. It was also said that the trial judge erred in principle in relying on a report of the Inspector of Prisons dated the 29th July 2010 on the conditions of Mountjoy Prison in circumstances where the report was not in evidence before the court and no opportunity had been given to counsel for the DPP to make any submissions with regard to it.

Held that although the appellant should have been given notice of the Inspector of Prisons report given the fact it had been relied upon in sentencing, the trial judge had been entitled to take into account the age of the respondent and the difficulties that serving a prison term would pose for a person of that age. Nevertheless, it was found that there was insufficient correlation between the matters referred to in the Inspector's report and the particular circumstances of the respondent because it was by no means certain that the respondent would be imprisoned in Mountjoy Prison.

It was also found that the cases of DPP v. Tiernan [1988] I.R. 250 and DPP v. Keane (CCA, Unreported, 19th December 2007) made it clear that the sentence for a conviction of rape should reflect the nature and gravity of the offence and that a departure from a substantial immediate custodial sentence could only be justified in wholly exceptional circumstances. It had been found that the respondent had committed a significant breach of trust, used alcohol to his advantage, and was violent and forceful during one of the sexual assaults. It was held that although the trial judge had been entitled to take into account the mitigating factors of the respondent's case, they lacked the exceptionality that was needed to justify a departure from the convention of imposing a substantial immediate custodial sentence for rape. Due to the suspended terms of imprisonment, it was clear that the respondent had effectively been given a 2 years custodial sentence. It was held that this could not be considered to be a substantial sentence given the nature and gravity of the offences. For that reason, the appellant's application was granted and the sentence for the offences of rape was revoked in favour of a sentence of 7 years imprisonment with 3 of those years suspended. The other sentences were not varied.

JUDGMENT of the Court delivered on the 28th day of June 2018 by Birmingham P.

1 On 11th November 2016, the appellant was convicted before the Special Criminal Court of the offence of membership of an unlawful organisation. The particulars of the offence being that he was within the State on 13th May 2015, a member of an unlawful organisation, being an organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA. There were essentially four elements to the prosecution case, namely:

(i) The belief/opinion evidence of Detective Chief Superintendent Peter Kirwan which was admitted to evidence pursuant to the provisions of s. 3(2) of the Offences Against the State (Amendment) Act 1972;

(ii) the Court was invited to draw inferences from the failure of the appellant to answer questions pursuant to s. 2 of the Offences Against the State (Amendment) Act 1998;

(iii) evidence relating to events in the Courtown area of County Wexford between the 9th May and the 13th May 2015 and

(iv) on 13th May 2015, premises at 19, Harbour Court, Courtown, Wexford were searched. In the course of the search a large amount of explosives and related materials were located in a water butt in a downstairs bathroom and in the kitchen area of the house. The premises were a holiday home owned by the parents of the appellant. On the 9th May 2013 the appellant, his brother: Sean Glennon, and Donal Costigan, otherwise Donal Ó Coisdealbha were observed at and around that address. As part of the surveillance in place on the 9th May some bags were seen being transferred between a black BMW and a Mondeo motor vehicle being driven by the appellant. One of the bags that was seen being transferred was a Lidl bag.

2 Some twelve Grounds of Appeal have been formulated and have been the subject of written and oral submissions. The written submissions, it may be noted, are somewhat more polemical in tone than is usual. Those twelve Grounds of Appeal can be summarised as follows:

(i) The Special Criminal Court erred in finding the arrest of the appellant to be lawful (Ground 1);

(ii) The Special Criminal Court erred in deeming the extension of the appellant's detention to be lawful (Ground 2);

(iii) The Special Criminal Court erred in holding that the taking of certain evidence by Detective Superintendent Maguire (Grounds 3 and 4);

(iv) The Special Criminal Court erred in admitting evidence of the taking of forensic samples from Donal Costigan (Ground 5);

(v) The Special Criminal Court erred in failing to address the basis upon which Chief Superintendent Kirwan based his belief evidence (Ground 6);

(vi) The Special Criminal Court erred in finding that the surveillance and DNA evidence supported the belief evidence of Chief Superintendent Kirwan (Grounds 7,8, and 9);

(vii) The Special Criminal Court erred in finding there to be strong circumstantial evidence that the fingerprints marks/DNA evidence were deposited at a time when the appellant was present in 19 Harbour Court with Donal Costigan (Ground 10);

(viii) The Special Criminal Court erred in inferring that the appellant's failure to answer questions whilst in detention was consistent only with membership of the IRA and failing to consider the possibility that he may have done so for the purposes of protecting others (Grounds 11 and 12).

Grounds 2, 3 and 4

3 These grounds have in common that they relate to decisions taken in relation to the appellant by Gardaí of detective chief superintendent and detective superintendent rank. The position is that the appellant was arrested at approximately 15.20 on the Ongar Distributory Road on the 13th May 2015. He was brought to Ballymun Garda Station where he was detained under the provisions of s. 30 of the Offences against the State Act 1939. At 16.14 on the 13th May, Detective Superintendent Thomas Maguire authorised the taking of fingerprints, palm prints and photographs of and from the appellant pursuant to s. 7(1)(c) and (d) of the Criminal Law Act 1976 and s. 6(2) and s. 9 of the Criminal Justice Act 1984. At the same time, Detective Sergeant Maguire, pursuant to the provisions of s. 2(4) of the Criminal Justice (Forensic Evidence) Act 1990 permitted the taking of a saliva sample from the appellant.

4 On the 14th May 2015 Detective Chief Superintendent John McMahon extended the period of detention of the appellant pursuant to the provisions of s. 30(3) of the Offences against the State Act...