DPP v J.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 09 May 2017
• Neutral Citation: [2017] IECA 144
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 87/16a
• Date: 09 May 2017

[2017] IECA 144

THE COURT OF APPEAL

Edwards J.

Mahon J.

Edwards J.

Hedigan J.

Record No: 87/16a

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

J.D.

Appellant

Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, on the 18th of December 2015, was convicted by the jury at his trial by a 10:2 majority of a single count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. On the 29th of February 2016 he was sentenced to seven years and six months imprisonment, to date from the 18th of December 2015. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the sentence imposed was disproportionate to the circumstances of the case; (ii) the sentence imposed failed to take account of the penal objective of rehabilitation; (iii) the sentencing judge failed to follow the recommended best practice of first identifying an appropriate headline sentence with reference to the range of available penalties and having regard to the gravity of the offence, and then discounting from that to reflect the mitigating circumstances of the case; (iv) the sentencing judge failed to give any or any adequate discount for mitigation; (v) the sentencing judge erred in making inappropriate comments about the "sexual autonomy of women" and "an attitude of entitlement pervading the sexual interaction of men and women", that it is said unfairly obscured the applicant's prior unblemished record and the references and testimonials tendered on his behalf; (vi) the sentence imposed was out of kilter with appropriate comparators including, and in particular, with the Court's decision in The People (DPP) v T.V. [2016] IECA 370.

Held by the Court that in circumstances where the sentencing judgment did not expressly indicate the degree to which there had been a discounting for mitigation, and there was no other way for the Court to quantify and assess it, it could not be satisfied that the mitigating factors received an adequate discount, and that the ultimate sentence was proportionate. The Court identified a significant error of principle on the part of the sentencing judge. The Court proceeded to quash the sentence imposed by the Court below and resentenced the appellant

The Court held that for the purpose of fixing a headline sentence this case was properly to be located at the upper end of the lower of the ranges identified by Charleton J in The People (DPP) v W.D. [2008] 1 I.R. 308, namely the three year to eight year range. The Court therefore nominated a headline sentence of eight years imprisonment. Having considered and weighed the relevant evidence, and having taken due account of the mitigating factors, the Court was satisfied that it was appropriate to discount from the headline sentence by a factor of 25%. Accordingly the Court sentenced the appellant to a term of six years imprisonment to date from the 18th of December 2015.

Appeal allowed.

JUDGMENT (ex tempore) delivered 9th of May 2017 by Mr. Justice Edwards .

Introduction

1 On the 18th of December 2015 the appellant was convicted by the jury at his trial by a 10:2 majority of a single count of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

2 On the 29th of February 2016 he was sentenced to seven years and six months imprisonment, to date from the 18th of December 2015.

3 The appellant has appealed against the severity of his sentence.

The Circumstances of the Crime

4 The conviction arises out of events which occurred in the early hours of the 10th of October 2010. On the previous evening, the 9th of October 2010 three women, comprising the complainant S.S., her mother J.S., and her sister L.T., went to a public house in a village in the North-East of the country, arriving there between 7.30pm and 8.00pm, where they met with the appellant by prior arrangement. The appellant knew the complainant's mother from doing odd jobs for her and he had been invited by text to meet her and her daughters for a sociable drink. The group stayed in the public house until approximately half past midnight, and while there they each consumed a fair amount of alcohol. After they had left the public house a Chinese takeaway was purchased, as well as some more drink, and the group repaired to the complainant's home.

5 The thrust of the prosecution evidence was that after the group had returned to S.S.'s house, which was a two storey dwelling, the three women all went to bed in the upper storey leaving the accused on the couch downstairs. SS slept alone in her own bedroom, while J.S. and L.T. slept in another room in separate single beds.

6 The jury heard evidence that S.S., who was lying on her stomach, awoke in the early hours of the morning to a bad pain in her backside. She quickly realised that the appellant was in her bed, on top of her, and engaging in the act of anal intercourse with her. The complainant told the jury that she went to scream but her first scream wouldn't come out. Then she managed to scream and as she did so she turned around and pushed him off her with all her might. She then jumped up, looked down and realised that her pyjamas were off her and a body suit, which she had been wearing under her pyjamas was open. She saw the appellant pulling up his trousers and could hear his belt jingling as he did so. The complainant then grabbed the bed quilt, put it round her and ran screaming into the room in which her mother and sister were sleeping. Her sister asked her 'what's wrong' but she found she couldn't talk. She just pointed at the appellant who was observed walking down the stairs at this time.

7 The matter was reported to the Gardaí, who commenced a criminal investigation and the complainant was taken to the sexual assault unit at a particular hospital. In the course of the investigation the appellant was arrested and interviewed. He denied ever having gone upstairs, or having committed any act such as that alleged by the complainant. In the course of a Garda interview he claimed that S.S. had come down to the sitting room for a chat. He claimed that he had put his arm around her in a non-sexual way after which she had jumped up saying 'Ah, ah' and then went upstairs talking loudly, but not screaming.

8 The appellant was subsequently charged with the offence with which he was ultimately convicted.

The Personal Circumstances of the Appellant

9 At the time of his sentencing the appellant was 59 years of age and going on 60. He comes from a family of five having two sisters and two brothers. His parents are no longer living. He is a separated man with nine children ranging in age from 14 to 39, and was said to be in contact with all of them. He had been quite active in the life of his youngest daughter who stays with him from time to time due to the periodic illness of her mother. He also has sixteen grandchildren. He was said to be presently in a relationship with a woman who has certain medical difficulties. The appellant has a history of employment in the construction sector. He is also said to have suffered a back injury some years previously which has left him in constant pain such that he is required to take 17 tablets daily. He has no previous convictions.

10 The sentencing court received a testimonial letter signed by the appellant's nine children that testified to his role as a loving and caring father. The court also received similar positive testimonials from his siblings, from his partner of three years, from a neighbour, from a work colleague, from his former employers, and from the appellant's grandson. In addition, documentary evidence confirming his partner's medical difficulties was placed before the court.

11 The appellant also submitted a personal letter to the court. In this letter he indicates that while he does not accept the verdict of the jury, and continues to maintain that he is innocent, he was pleading for leniency on account of the dependence of his partner and children upon him.

The Impact on the Victim

12 At the sentencing hearing victim impact evidence was received from the complainant S.S. She told the court ( inter alia) that she was four months pregnant at the time of the rape, and further stated:

'To this day, five years on, I still haven't had one day that I don't have flashbacks or feelings of pure panic and intense sadness. After the incident I had to take antiviral medicine for 28 days to prevent me from being infected with HIV. Every day, all day, I was vomiting, stomach cramps, horrible feelings swallowing down tablets while I was pregnant. I lost my home overnight because after the [named] Hospital I never put my foot in that house again. I made my brother dump every toy, plate, cup, blanket from that house. My two sons had to change schools as I moved in with mum to [a named town]. My eldest son was very angry, upset and confused why he had to make new friends in a different area and school. Quite hard for any teenager. I had to lie to my sons by claiming the house was flooded. Myself and my two sons all shared one bedroom in mum's house with none of our belongings with us. I use to have to cry in the bathroom with the taps running so my boys wouldn't hear me crying.'

13 S.S. described the emotional turmoil she experienced during the remainder of her pregnancy in the light of what had occurred, and following the subsequent birth of her only daughter. This aspect of her evidence was well summarized by the sentencing judge in the course of her sentencing remarks when she said:

'Her pregnancy was blighted by concerns about possible HIV infection, antiviral medication, regular visits for blood tests, concerns about potential damage to her unborn child, which persisted despite medical reassurances. Her...