DPP v Hussain

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Finlay Geoghegan J.
• Judgment Date: 16 February 2015
• Neutral Citation: [2015] IECA 22
• Date: 16 February 2015

[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

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

Facts The appellant was convicted of sexual exploitation of a child contrary to s. 3(2A) of the Child Trafficking and Pornography Act 1998. At the sentencing hearing evidence was adduced by the prosecution of the relevant facts from a Detective Sergeant. The judge was given a note of sentences handed down in cases involving types of offences of a similar nature. The appellant was sentenced to a four year custodial sentence. He sought to appeal against severity of sentence. The appellant met the intended victim, Ms F, in the early hours of the morning. She was nearly fourteen years of age. Ms. F was residing in institutional care at that time yet still had frequent contact with her mother. She got into the appellants car with another girl, Ms H. It was accepted on that evening Ms. F and Ms. H told the appellant they were both nineteen years old. The following evening Ms. Fused a computer to contact the appellant as her mother had confiscated her mobile phone. She asked to meet him again. He rang Ms .F and spoke to her mother who was in possession of her phone. She became concerned as her daughter had absconded from the care facility that evening. Ms. F's older sister spoke to the appellant on the phone, reiterating that her sister was only thirteen years of age. Ms. F retrieved her phone, she text the appellant requesting to meet. Her mother again confiscated her phone, realising she had been in contact with him. She subsequently recorded a conversation with the appellant, pretending to be her daughter. The recording was played to the jury. While it appears some discussion about sex and sexual matters had arisen, he did not commit himself to anything. He agreed to meet Ms. F later that evening. The Gardaí were then alerted by her mother and they agreed to be in the vicinity when he was scheduled to travel. The appellant was arrested. During the course of the interviews he gave an account of having met Ms. F and his ongoing communication with her. He agreed that he wished to meet her in the expectation of some degree of sexual acts being performed. He denied that, by reason of his religious beliefs and the age of Ms. F, he had ever intended to have full sexual intercourse with her. He nevertheless stated that he had hoped to engage in some form of oral sex or some form of masturbation. The appellant was charged with the offence in question and pleaded not guilty. He had one prior conviction involving a road traffic incident in 2010. He received a fine and no custodial penalty was imposed.

Held The Court concluded the trial judge erred in principle in not considering the relative gravity of the offence committed by reference to the facts admitted or proved in the context of the full spectrum of potential offences contrary to s. 3(2A) of 1998 Act, particularly by reference to the wide range of matters defined as constituting sexual exploitation in s. 3(5). Further Court said that this error in principle lead her in error to decide that the gravity of this particular offence, in the circumstances in which it was committed, fell within the mid-range of offences contrary to s. 3(2A) such that before consideration of mitigating factors a sentence in the range of six to eight years was appropriate. In the Court's view this was a disproportionate starting point for the appropriate sentence for the offence committed by the appellant and lead to an unduly severe sentence of four years. Accordingly, the Court would allow the appeal and would hear further submissions prior to determining the appropriate sentence.

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

2 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:

3 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).

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

5 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.

6 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.

7 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.

8 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.

9 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

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

11 2 "(2A) Any person who within the State -

12 (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

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

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

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

16 2 "(5) In this section -

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

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

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

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

21 (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;

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

23 (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

24 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.

25 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.

26 10. On the evening in question Ms. F and her friend (whom we...