DPP v Griffin

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr Justice Fennelly
• Judgment Date: 07 October 2011
• Neutral Citation: [2011] IECCA 62
• Docket Number: CCA: 106/07
• Date: 07 October 2011

[2011] IECCA 62

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Budd J.

Moriarty J.

CCA: 106/07

DPP v Griffin

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

CHRISTOPHER GRIFFIN

APPLICANT

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

DPP v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155 1988/4/1067

DPP v MCC (R) & D (C) 2008 2 IR 92 2008 1 ILRM 321 2007/19/3923 2007 IESC 47

CRIMINAL JUSTICE ACT 1999 S29

DPP v S (P) UNREP CCA 28.1.2009 2009/19/4611 2009 IECCA 1

DPP v FINN UNREP CCA 29.7.2009 2009/16/3754 2009 IECCA 96

CRIMINAL LAW

Sentence

Rape - Life sentence -Applicant abused position of trust - Age difference - Breakdown of relationship between complainant and her mother - Severe post-traumatic stress - Absence of violence - Whether appropriate to consider evidence of feud which was extraneous to offences committed - Whether imposition of life sentence appropriate - People (DPP) v Tiernan [1988] IR 250 followed; People (DPP) v McShane 2007 IESC 47 [2008] 2 IR 92, People (DPP) v PS [2009] IECCA 1 (Unrep, CCA, 28/1/2009) and People (DPP) v Finn [2009] IECCA 96, (Unrep, CCA, 29/7/2009) considered - Appeal allowed; substitution of sentence of 15 years (106/2007 - CCA - 7/10/2011) [2011] IECCA 62

People (DPP) v Griffin

Facts The applicant had been convicted in respect on a number of sexual offences including two counts of rape and had received a sentence of life imprisonment in respect of these. The applicant sought leave to appeal against the severity of the sentence imposed in respect of the counts of rape. On behalf of the applicant it was contended that the trial judge had erroneously imposed a life sentence and had incorrectly dealt with the applicant's previous record. Some of the applicant's previous convictions had occurred when the applicant was a juvenile. A sentence of life imprisonment was not justified. It was submitted that attention had also been incorrectly drawn to extraneous events that had occurred during the course of the trial.

Held by the Court of Criminal Appeal in reducing the sentences. The trial judge had incorrectly drawn attention to a number of extraneous events outside of the trial and these matters should have been left entirely out of account. The repeated commission of the offences during the tender years of a girl was an especially aggravating element. This was not a case where the applicant could advance any mitigating factors and he had contested the charges at every stage. There was evidence that the victim suffered from severe post-traumatic stress. The offending, taken as a whole, while extremely serious, was not in such an exceptional category of seriousness as to warrant the imposition of a life sentence. The trial judge erred in the imposition of life sentences on the two counts of rape and the sentence imposed would be reduced to 15 years.

Reporter: R.F.

1 1. This is an application for leave to appeal against the severity of a sentence of life imprisonment imposed on the Applicant by Carney J at the Central Criminal Court on two counts of rape. The applicant is named in the proceedings. The complainant communicated to the Central Criminal Court that she had no objection to his name being made known, despite legislation entitling her to anonymity.

2 2. The applicant was tried by a jury at the Central Criminal Court in January 2007. There had been an earlier trial at which the jury disagreed. The indictment contained eleven counts. Two were of rape: one laid as being contrary to section 48 of the Offences against the Person Act, 1861, as amended; one contrary to section 4 of the Criminal Law (Rape)(Amendment) Act, 990: penetrating the complainant's mouth with his penis. There were also nine counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. The jury convicted the applicant on 18 ^th January 2007 on all eleven counts.

3 3. On 24 ^th April 2007, Carney J imposed sentences of life imprisonment in respect of each of the counts of rape and sentences of five years on each of the counts of sexual assault, all to run concurrently. There is no complaint concerning the sentences for sexual assault.

The facts

4 4. The victim was the daughter of a woman with whom the applicant cohabited at three different addresses in Dublin. The offences were committed over a period of some eight years. The first sexual assault occurred between June and December 1993, when the complainant was eight years of age. The applicant was then twenty four years of age. The last offence was the rape; this occurred in 2001, when the complainant was sixteen. The section 4 rape was committed in the year 1998 when she was about thirteen. All the offences were committed in the three different homes where the complainant lived with her mother and the applicant.

5 5. There was a progression in seriousness of the offending over the eight years. The sexual assaults occurred when the complainant's mother was out of the house. The first sexual assault consisted in the applicant rubbing himself against the complainant. Later he would kiss her and lift her onto him, rubbing her against him. Then he touched her vagina outside her clothes and forced her to touch his genitals outside his clothes. Later he made her masturbate him; he lay on top of her; he would digitally penetrate her vagina, which she found painful. In 1998, he made the complainant perform oral sex on him, holding her down and made her sleep in his bed afterwards; that was the section 4 rape.

6 6..After this, the complainant told her mother and her grandmother about the abuse. Her mother, though upset, did nothing about it. The complainant felt that there was nothing that she could do, that she was powerless and that she had lost her relationship with her mother. The complainant did not report the matter to the gardaí, as she was living in an environment where no one would think of going to the gardaí about anything.

7 7. The complainant was in fear of the applicant, though the evidence is that he never threatened her in relation to the abuse. Frequently, he would cry after abusing her and tell her not to let him do it again. This made her feel responsible for the abuse. He gave her gifts, in particular a motor car.

8 8. The final offence was the rape committed in 2001. Counsel for the applicant makes the point that there was no completed act of intercourse. This event appears effectively to have brought the abuse to an end. The complainant left the home some months later and reported the matter to the gardaí in 2002. She said that she feared the applicant would abuse her step-sisters.

The sentence

9 9. Following the delivery of the jury verdicts, on 18 ^th January 2007, the learned trial judge indicated that the sentencing hearing would take place at a later date but said that it was his practice to allow the jury to hear "what has been excluded from them up to now." He said that he wanted "evidence of the accused's character and antecedents." Following inquiry from defence counsel as to the purpose of this procedure, the learned trial judge said that the evidence would be given again at the sentencing stage.

10 10. Detective Sergeant Walter O'Connell then gave evidence in the presence of the jury of the previous convictions of the applicant. Following inquiry from the learned trial judge as to what had happened since the previous trial, the witness said that there had been a number of serious incidents between "the two families." There was then reference to a "Security Report," which is not before this Court. The witness gave evidence, which he repeated in substance at the later sentence hearing, of a number of violent incidents.

11 11. On 7 ^th October 2005, five shots were discharged through the front sitting room of the applicant's home; one bullet struck him in the elbow. The applicant refused to co-operate with the garda investigation of the incident.

12 12. On 5 ^th November 2006, shots had been fired into two houses which were homes of members of the complainant's family. On the following day, hand grenades had been thrown into the homes of the applicant and his nephew. Another person was shot in or near the Financial Services Centre and a different person was shot dead in his home. The witness said that there had been armed patrols in the area since the commencement of the trial. The learned trial judge remarked that that was why the trial was taking place in Cloverhill. The applicant was remanded in custody to the sentence hearing on 24 ^th April 2007. There was no evidence as to whether the applicant was involved in or responsible for any of these. events, other than as a victim of one shooting.

13 13. Garda Niamh Shelley gave evidence at the sentence hearing on 24 ^th April 2007 that the applicant had 18 previous convictions. Although seven of these were for road-traffic offences, two of those warranted custodial sentences: in 1984, when he was only fifteen, he received a sentence of two years in Trinity House; in 1986, he received a twelve-month sentence in St Patrick's Institution. These were for unauthorised taking of motor vehicles.

14 14. Contemporaneously, the applicant was being convicted for more serious offences. In October 1986, he received a sentence of four months' detention for aggravated burglary with firearms and unauthorised taking. On 3 ^rd December 1986, he was convicted of possession of firearms and ammunition for which he was sentenced to six years' imprisonment. In February 1987 he was again convicted of a firearms offence and sentenced to three years' imprisonment. On 28 ^th May 1987, he was convicted of robbery and possession of a firearm and sentenced to nine years'...