DPP v H (M)

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 10 December 2014
• Neutral Citation: [2014] IECA 19
• Court: Court of Appeal (Ireland)
• Date: 10 December 2014

[2014] IECA 19

THE COURT OF APPEAL

Ryan P.

Hogan J.

Edwards J.

186/13

DPP v H (M)

APPROVED

Mr. Justice Edwards

JUDGMENT

The People at the Suit of the Director of Public Prosecutions

V

M.H.

Appellant

OFFENCES AGAINST THE PERSON ACT 1961 S48

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEXUAL OFFENDERS ACT 2001 S37

DPP v DROUGHT 2008 1 IR 308 2007/18/3617 2007 IEHC 310

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

Crime & sentencing – Sentencing – Sexual offences Appeal against sentence – Appellant contending sentence for offences

Facts: The appellant had been sentenced to a term of imprisonment for nine offences involving a single victim, who had been subjected to a number of serious sexual assaults including rape. He now appealed to the Court of Appeal

Mr. Justice Edwards stated that the sole substantive point on appeal was whether the sentencing judge had placed the offences too far along on the scale of seriousness. Having considered the matter and evidence before the judge at the time, the Court was minded to grant the appeal due to the mitigating factors in the matter. A new sentence was therefore handed down.

1 1. This appeal arises out of a sentence hearing following the entry by the appellant of pleas of guilty before the Central Criminal Court to a total of nine offences, comprising (i) one count of rape contrary to s. 48 of the Offences Against the Person Act 1961 and s. 2 of the Criminal Law (Rape) Act 1981, as amended; (ii) four counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 and (iii) four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended by s. 37 of the Sexual Offenders Act 2001, The offences involved a single victim.

2 2. The learned trial judge imposed sentences of nine years imprisonment in respect of each of the rape offences, with the last three years of each of those sentences being suspended. He also imposed sentences of three years imprisonment for each of the sexual assault offences. All sentences were to run concurrently.

3 3. I will deal briefly in a moment with the circumstances in which the offences were committed, but it has to be said at the outset that offences of this type are heinous offences and there are a considerable number of them in this case. On any view of the matter this is a serious case. It is serious not only from the point of view of society but particularly from the point of view of the unfortunate victim in this case, who has been profoundly affected by what has happened to her in the course of being assaulted by the appellant.

4 4. That having been said, the court must be concerned, as indeed the trial court was required to be concerned, not with abstract or generic forms of the offences in question, but with the specific offending conduct as committed by this particular offender.

5 5. The court has carefully considered the sole substantive point that was agitated in this appeal i.e., that in fixing the place of the rape offences at nine years on the scale of potential penalties, before taking account of mitigating factors, the learned trial judge took too severe a view of the case and afforded the offending conduct a higher rating on the spectrum of available penalties than was merited in the circumstances.

6 6. The court has considered this submission and agrees that the learned judge did locate the offences in question in a position that was too far along the relevant scale in terms of their seriousness.

7 7. Before saying any more about that, it is necessary to elaborate a little on the nature of the offending conduct in this case. What the Court is concerned with in this case, is abuse by an older cousin of a younger cousin. There was a five and a half year age difference between them. The case concerns offences that occurred in the years 2003. 2004 and 2005. However, while those are the years relevant to the charges on the indictment to which the appellant pleaded guilty, the court was invited to take account of a fact, alluded to in a probation report that was before the learned trial judge, that the pattern of offending behaviour which culminated in those charges actually commenced prior to 2003, and perhaps going as far back as 1999 when the accused in this case would have been twelve and his cousin, the injured party, would have been only six. That is relevant as it bears on the culpability of the appellant, and ought to have been taken into account.

8 8. The offending conduct commenced, we are told in the probation report, with inappropriate behaviour in primary school, the older cousin catching the younger and kissing her. It progressed then to a pattern of touching in inappropriate places, particularly in the anal and vagina areas. It progressed from that to the situation of the appellant taking out his penis and requesting the complainant to touch his penis.

9 9. It is clear that throughout the period that we are concerned with, the offending continued to escalate in seriousness. There followed a number of incidents of s. 4 rape which involved oral sexual activity where the appellant required the unfortunate victim in this case to take his penis into her mouth. The offending increased in frequency also and it culminated in 2005 with a single incident involving full vaginal...