DPP v J.C. (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] IECA 97
• Docket Number: 124/13
• Court: Court of Appeal (Ireland)
• Date: 18 March 2016

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

J.C. (No. 2)

Appellant

[2016] IECA 97

124/13

THE COURT OF APPEAL

Sentencing ? Sexual offences ? Severity of sentence ? Appellant seeking to appeal against sentence ? Whether sentence was unduly severe

Facts: The appellant, on the 7th February, 2013, following a six day jury trial at Limerick Circuit Criminal Court, was convicted on ten counts of indecent assault and three counts of sexual assault. On the 3rd May, 2013 he was sentenced to ten years imprisonment with the final two years of that sentence suspended on the usual terms. The appellant appealed to the Court of Appeal against that sentence on the grounds that the trial judge: 1) failed to have any or any adequate regard to the personal circumstances of the appellant; 2) failed to give any or any adequate weight to the mitigating factors advanced on behalf of the appellant which included (i) the previous good character of the appellant, (ii) the age and family circumstances of the appellant, (iii) the loss of all contact by the appellant with the children of his marriage as a result of the allegations and (iv) the fact that the appellant had not come to garda attention since the allegations were made, citing The People (DPP) v Kelly?[2005] 2 IR 321; 3) erred in law and in principle in calculating the appropriate sentence, in that he suspended a portion of the sentence of ten years as a mechanism to impose a sentence of eight years; 4) erred in law in failing to correctly assess the offences as being towards the lower level of seriousness in relation to those types of offences and/or wrongly assessed the level of seriousness of the offences as being too high on the scale of such offences, citing The People (DPP) v McC [2003] 3 IR at 609 and?The People (DPP) v Loving?[2006] 3 IR 355; 5) failed to consider post release supervision in imposing sentence.

Held by Sheehan J that, while the individual acts of criminal offending in this case considered in isolation would not normally attract a penalty at the high end of the scale of available penalties, the multiplicity of offences and the harm caused by the appellant required being marked by a sentence at the high end of the scale. Having considered the submissions of counsel for the appellant as well as the submissions for counsel of the respondent, the DPP, in light of the sentencing judge?s sentencing remarks, Sheehan J held that the sentencing judge was entitled to approach sentence in the manner that he did. Sheehan J also held that an overall sentence of ten years imprisonment with the final two years thereof being suspended was a proportionate sentence, bearing in mind the appellant?s personal circumstances as well as the aggravating factors that were outlined in the respondent?s submissions and the sentencing judge?s remarks.

Sheehan J held that he would dismiss the appeal against sentence.

Appeal dismissed.

Judgment of the Court delivered on the 18th day of March 2016 by Mr. Justice Sheehan

1 This judgment is concerned solely with the appeal against sentence.

2 On the 7th February, 2013, following a six day jury trial at Limerick Circuit Criminal Court the appellant was convicted on ten counts of indecent assault and three counts of sexual assault. On the 3rd May, 2013 he was sentenced to ten years imprisonment with the final two years of that sentence suspended on the usual terms.

3 In support of this application counsel for the appellant relies on the following grounds of appeal:-

1. The learned trial judge failed to have any or any adequate regard to the personal circumstances of the appellant.

2. The learned trial judge failed to give any or any adequate weight to the mitigating factors advanced on behalf of the appellant. These included (i) the previous good character of the appellant, (ii) the age and family circumstances of the appellant, (iii) the loss of all contact by the appellant with the children of his marriage as a result of these allegations and (iv) the fact that the appellant had not come to garda attention since these allegations were made.

3. The learned sentencing judge erred in law and in principle in calculating the appropriate sentence, in that he suspended a portion of the sentence of ten years as a mechanism to impose a sentence of eight years.

4. The learned trial judge erred in law in failing to correctly assess the offences in this case as being towards the lower level of seriousness in relation to these types of offences and/or wrongly assessed the level of seriousness of the offences as being too high on the scale of such offences.

5. The learned trial judge failed to consider post release supervision in imposing sentence.

4 The sexual offending in each case involved the appellant getting the injured party to touch his penis and, in most cases, getting the injured party to masturbate him. The offences are described in greater detail in our judgment delivered on the 14th November, 2015, which judgment dealt with the appellant's appeal against conviction.

Submissions

5 Counsel on behalf of the appellant in the course of written submissions contends that the learned sentencing judge erred in law and in principle in failing to assess these offences as being towards the lower level of seriousness for such offences and/or in assessing the offences as being towards the top end of the scale. As a result, the trial judge erred in deciding to impose a sentence of ten years imprisonment with the last two thereof suspended.

6 In support of this submission that the offending in...