DPP v Hussain

 
FREE EXCERPT

[2015] IECA 22

THE COURT OF APPEAL

Finlay Geoghegan J.

Irvine J.

Hogan J.

[No. 108 CCA/2014]
DPP v Hussain
BETWEEN/
THE PEOPLE (AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent

AND

MUHAMMAD HUSSAIN
Appellant

2014/108CCA - Finlay Geoghegan Irvine Hogan - Court of Appeal - 2014/108CCA - 2015 IECA 22

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3(2A)

CRIMINAL LAW (SEXUAL OFFENCES) (AMDT) ACT 2007 S6

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3(5)

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3(5)(D)

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3(5)(C)

DPP v Z UNREP CCA 18.3.2014 2014 IECCA 13

DPP v RYAN UNREP CCA 18.3.2014 2014 IECCA 11

DPP v FITZGIBBON UNREP CCA 18.3.2014 2014 IECCA 12

DPP v RYAN UNREP CCA 17.7.2014 2014 IECCA 24

DPP v FITZGIBBON UNREP CCA 17.7.2014 2014 IECCA 25

DEATON v AG & REVENUE CMRS 1963 IR 170 1964 98 ILTR 99

BARBARO v QUEEN 2014 HCA 2

R v MACNEIL-BROWN 2008 VSCA 190 2008 20 VR 677

CRIMINAL JUSTICE ACT 1993 S6

DPP v SHEKALE UNREP CCA 25.2.2008 2008/21/4579 2008 IECCA 28

DPP v DALY 2012 1 IR 476 2011/16/3908 2011 IECCA 104

Criminal law - Trial by jury - Sexual exploitation of a child contrary to s. 3(2A) of the Child Trafficking and Pornography Act 1998 - Sentencing - Appeal against severity of sentence - Error of principle - Starting point - Gravity of offence - Spectrum - Mitigating factors

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JUDGMENT of the Court delivered on the 16th day of February 2015 by Finlay Geoghegan J.

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1. On the 28 th March, 2014, following a ten day jury trial, the appellant, Muhammad Hussain, was convicted before the Circuit Court of the offence with which he had been charged on Bill No. CE/ 24201 namely:

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Within the State intentionally meeting, or travelling with the intention of meeting a child, having met or communicated with that child on two or more previous occasions, and doing so for the purpose of doing anything that would constitute sexual exploitation of the child contrary to s. 3(2A) of the Child Trafficking and Pornography Act 1998 (as inserted by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007).

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The offence of which the appellant was convicted took place on the 22 nd July, 2011.

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2. The sentencing hearing took place on 7 th April 2014. Prior to that, the trial judge expressly invited counsel for the prosecution to provide assistance to the court in relation to the sentencing of the offence.

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3. At the sentencing hearing evidence was adduced by the prosecution of the relevant facts from a Detective Sergeant. In addition the trial judge was given a short note of sentences handed down in cases involving "other types of offence of a similar nature". The court will return to the oral submissions accompanying them by counsel for the prosecution. Written testimonials were submitted on behalf of the appellant and submissions made. This Court has the full transcript of the sentencing hearing on the 7 th April, 2014.

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4. On the 11 th April, 2014. The trial judge imposed a four year custodial sentence taking into account thirteen weeks which had been served in custody. The Court also has the transcript of the sentencing decision.

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5. The appellant appeals against the severity of sentence. The court has had the benefit of written submissions submitted on behalf of the appellant and respondent and oral submissions made.

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6. The court was informed that this was the first prosecution of this kind in the State. Given the novelty and intrinsic importance of the issues raised by this appeal, this Court reserved judgment on that appeal and this is now the judgment of the Court.

Section 3(2A) of the Child Trafficking and Pornography Act 1998
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7. Section 3(2A) of the 1998 Act (as inserted by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007) provides:

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2 "(2A) Any person who within the State -

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(a) intentionally meets, or travels with the intention of meeting, a child, having met or communicated with that child on 2 or more previous occasions, and

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(b) does so for the purpose of doing anything that would constitute sexual exploitation of the child, shall be guilty of an offence and

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shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years."

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Section 3(5) of the 1998 Act (as inserted by s. 3(b) of the Criminal Law (Human Trafficking) Act 2008) provides:

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2 "(5) In this section -

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'child' means a person under the age of 18 years;

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'sexual exploitation' means, in relation to a child -

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(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,

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(b) the prostitution of the child or the use of the child for the production of child pornography,

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(c) the commission of an offence specified in the schedule to the Sex Offenders Act 2001 against the child; causing another person to commit such an offence against the child; or inviting, inducing or coercing the child to commit such an offence against another person;

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(d) inviting, inducing or coercing the child to engage in or participate in any sexual, indecent or obscene act, or

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(e) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act for the purpose of corrupting or depraving the child."

The evidence before the Circuit Court for Sentence
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8. The facts before the Circuit Court of which this Court is aware are confined to those given in evidence by the Detective Sergeant at the sentencing hearing on the 7 th April, 2014. There were minimal further facts referred to (without objection) by counsel in submission on the same day. With one exception they are the facts referred to by the trial judge in imposing sentence and relevant to this appeal.

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9. The accepted evidence is that the appellant met the intended victim (whom we shall describe as "Ms. F") in the early hours of the 25 th May, 2011, in a provincial city. Ms. F was born on the 3 rd August 1997 so that at that point she was some two and half months short of her fourteenth birthday. At the time Ms. F was residing in institutional care at a location perhaps some 20kms or distant from the city in question. While she lived in an institutional setting, Ms. F did, however, have frequent contact with her mother.

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10. On the evening in question Ms. F and her friend (whom we shall describe as "Ms. H") had left the residence and got a taxi into the city. Ms. F and Ms. H had spent the evening together in the company of another person, but by the time they met the appellant they were walking along a road on their own. The appellant was travelling in a car with another (male) friend and he stopped at some traffic lights and engaged in conversation with the two girls. It appears that either the appellant or his friend enquired of the two girls as to whether they were prostitutes. At all events the two girls struck up a conversation and they got into the car. Ms. F subsequently explained that the only reason that she got into the car was because a Garda patrol car was coming and she did not want to be caught and taken back to her residence. It was accepted that on that evening both Ms. F and Ms. H told the appellant and his companion that they were nineteen years.

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11. Having got into the car the; four of them spent the next part of the evening or the early hours of the morning together. It appears that Ms. F was in the front of the car with the appellant and Ms. H was in the back seat with the appellant's male companion. At the end of the evening the appellant gave his telephone number to Ms. H and Ms. H also gave him a telephone number. Ms. F did not have her mobile telephone because her mother had confiscated it.

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12. On the following evening Ms. F used a computer to send a text message to the appellant's mobile telephone number in which she essentially asked him to meet the two girls again in the village just beside the residence. While the appellant may have travelled that evening, he did not manage to contact Ms. F as she did not have her telephone with her. On the day after that again, the appellant telephoned Ms. F's number. On this occasion he spoke to her mother who had possession of her daughter's telephone. When Ms. F's mother answered the telephone, a brief conversation took place in which she explained that Ms. F did not have her telephone anymore and that the caller could not speak to her.

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13. The appellant then subsequently sent a text to Ms. F's number asking if it was Ms. H. who had just answered the telephone. At this point Ms. F's mother became concerned, because Ms. H was a new resident at the institution and she accordingly sent a text to the calling number asking that person ( i.e., the appellant) to call. Added to her concerns was the fact that Ms. F had absconded that evening and was missing at the time. The appellant then rang again and Ms. F's mother explained that Ms. F was only thirteen and that she had just gone missing along with her friend, Ms. H. The appellant said that he had only met her the...

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