DPP v Hilliard
|Court of Appeal (Ireland)
|Mr. Justice Hedigan
|17 May 2018
| IECA 293
|17 May 2018
 IECA 293
THE COURT OF APPEAL
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
Sentencing – Sexual assault – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Hilliard, was sentenced in the Circuit Criminal Court on the 24th October, 2017 having pleaded guilty to two counts of sexual assault upon two women. Concurrent sentences of eighteen months imprisonment were imposed on the respondent, suspended in their entirety on certain conditions. The appellant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking review of sentence on grounds of undue leniency. It was submitted that the sentencing judge gravely underestimated the seriousness of the offending behaviour and misinterpreted the implications of the absence of evidence of any psychological harm done to both victims. Further it was submitted that the sentencing judge placed excessive reliance on the psychological report of Dr O’Leary.
Held by the Court that the sentencing judge’s view that the assaults were minor ones that might well have been dealt with at District Court level was a clear error of principle that required intervention. The Court therefore quashed the sentence imposed and proceeded to resentence.
The Court held that the maximum sentence was one of 10 years. Taking into account all the aggravating factors correctly identified by the Circuit Court judge, the Court considered that the assaults in question did not merit a place at the upper or even the middle range. The Court held that they were best located at the upper end of the lower range, normally attracting a custodial sentence of up to three years. Applying the mitigating factors already identified and taking account of the up-to-date information furnished to the Court of the respondent’s ongoing counselling and his voluntary work, it would reduce this to two years. The Court considered that the minimum sentence that could have been imposed in the Circuit Criminal Court was one of 18 months. Noting that its usual practice when imposing a custodial sentence following an undue leniency appeal where no custody was originally imposed is to reduce that sentence somewhat, the Court would reduce the two years to 18 months on each count to run concurrently and in order to incentivise rehabilitation, it would suspend the last six months thereof subject to the same conditions imposed in the Circuit Criminal Court.
This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993, seeking review of sentence on grounds of undue leniency. The respondent was sentenced in the Circuit Criminal Court on the 24th October, 2017 having pleaded guilty to two counts of sexual assault upon two women. Concurrent sentences of eighteen months imprisonment were imposed on the respondent, suspended in their entirety on certain conditions.
The victims in this case were both patients in the care facility where the respondent worked as a health care assistant. Both women were suffering from profound intellectual disabilities when they were assaulted.
The first count concerned an assault on seventy-one year old P.D. between the 24th and 25th of June 2016. Ms D. was a women who suffered from advanced dementia, and was described as someone who ‘did not live in the present’. The assault involved the respondent lifting her nightdress to her shoulders, such that she was wearing only her incontinence wear. The respondent touched and groped her exposed breasts. He recorded the assault using a mobile phone, and can be heard making grunting noises and saying words akin to ‘look what you're making me do, look what you're doing to me’ on the recording. The respondent later mistakenly posted this video on Facebook, which was instantly investigated.
The second count concerned an assault on N.C. which took place on an unidentified date between 20th February, 2013 when she moved into the facility and 6th January, 2016 (the date of her death at age sixty-five). The respondent approached Ms C. in the day room of the facility and groped her breast through her t-shirt for approximately five seconds. This was recorded by him electronically. The assault occurred in the presence of a male patient who also suffered from cognitive impairment. Ms C. made no reaction to being sexually assaulted and video recorded. Ms C. was described as someone who ‘wouldn't know what was going on’.
The respondent has no previous convictions. He has worked since completing the junior certificate, at first as a tea-boy and later as a groundsman and a yardsman at Dublin Corporation. He was involved in the Red Cross and completed a course in care. Arising from this, he commenced work in the nursing home.
In the course of his interviews with the Gardaí, the respondent expressed his remorse for what he had done. He stated that he himself had been raped or sexually assaulted when he was young. He further stated in the course of his interviews that he mistakenly uploaded the video to Facebook. He had worked the night shift and had only had two or three hours sleep when he uploaded the video, he stated that he was half-asleep.
Upon psychological assessment carried out by Dr Ríoghnach O'Leary, it was found that the respondent's cognitive abilities were below average. Medical reports before the learned sentencing judge suggested that the respondent was at a low risk of reoffending.
The learned sentencing judge delivered his sentence as follows:
‘doing the best that I can and having regard to the reports and testimonials, I propose to impose an 18 month sentence and I'm going to suspend that sentence for 18 months. I'm going to suspend it in full, but on certain very strict terms and conditions. The first of which is that he keeps the peace and is of good behaviour, which means that if he commits any offence during the period of the suspension of the sentence, he may be liable to come back and face the entire sentence. Secondly, he is going to have to follow the recommendations contained in Dr O'Leary and Dr Walsh's report, which has been opened to the Court and is dated the 23rd of October 2016, and in particular he is, as a term of his bond, to continue attend the weekly group therapy group for men who have sexually offended. He is going to have to continue to attend such a group for a period of 18 months […] The monetary amount will be €100 on the bond. He'll have to have his details entered on the sex offenders' register […]’
The learned sentencing judge had previously set out that the aggravating factors in the case included: the fact that the assaults had occurred on the women when they were patients in a care facility; their particular vulnerability; the relationship between the respondent and the victims; the particular breach of trust the case involved. The learned sentencing judge further stressed that the accused mistakenly uploaded the video to Facebook, somewhat reducing the mitigating factors in the case, in that this was not a case where the accused “came clean” of his own accord or made a confession.
Mitigating factors that the learned sentencing judge referred to included: the lack of violence in the commission of the offence; the fact that the victims suffered no psychological harm; the guilty plea; the fact the accused was of previous good character and had no previous convictions; his expression of remorse; the respondent's low risk of reoffending.
The learned sentencing judge stressed that the offence was at the lower end of the scale in terms of a sexual assault. He commented that cases like this would often be found in the District Court, however due to the complicating features in the case, the case was before him.
The learned sentencing judge emphasised that the accused was particularly psychologically vulnerable at the time of the commission of the offences. The accused had been working excessive hours and was sleep deprived. His relationship with his own wife was at a low ebb physically, something which the learned sentencing judge stated can ‘sometimes lead people astray’.
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