DPP v J. O'D
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 05 April 2019 |
| Neutral Citation | [2019] IECA 127 |
| Date | 05 April 2019 |
| Docket Number | [201/18] |
[2019] IECA 127
[201/18]
COURT OF APPEAL
Sentencing – Violent disorder – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient
Facts: An undue leniency review was brought at the behest of the applicant, the Director of Public Prosecutions, in respect of sentences imposed on the respondent, Mr McDonagh, on 12th October 2017, being a sentence of six years imprisonment on a count of violent disorder, contrary to s. 15 of the Non-Fatal Offences against the Person Act 1997, a sentence of three years imprisonment on a count of assault causing harm, contrary to s. 3 of the 1997 Act, and a sentence of three years imprisonment on a count of possession of an article contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. All sentences were to run concurrently and were suspended in their entirety subject to the respondent acknowledging himself bound to the people of Ireland in the sum of €100, the conditions being that he would keep the peace and be of good behaviour for a period of five years.
Held by the Court of Appeal that the decisions made by the sentencing judge were within his legitimate range of discretion. The ultimate sentences were undoubtedly very lenient but the Court was not satisfied that they were so lenient as to represent a clear and significant departure from the norm. The Court held that the judge approached the matter with great care and conscientiousness. The Court found no error of principle in the judge’s approach.
The Court held that the application of the Director of Public Prosecutions would be dismissed.
Appeal dismissed.
This is an appeal against severity of sentence. Following pleas of guilty, the appellant was sentenced to 18 years” imprisonment in respect of two counts of rape contrary to s.2 of the Criminal Law (Rape) Act 1981, and four counts of rape contrary to s.4 of the Criminal Law (Rape)(Amendment) Act 1990. The offending conduct concerned two victims and 17 counts were preferred on the indictment, which included a further three counts of rape contrary to s.2, a further four counts of rape contrary to s.4, a count of making a threat to kill, assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 and two counts of false imprisonment.
The appellant was a former partner of the first of two victims, EK. The second victim, CM, was a foster child of EK and resided with her and was 16 years of age at the time. On the 10th September 2016, the appellant forcibly entered EK's house. EK was asleep in the living room, and awoke to the appellant placing a hand over her mouth and pressing a knife against her neck. When she attempted to raise the alarm by screaming, he threatened to kill her and directed this threat towards the occupants of the house.
He instructed her to remove her clothing and when she refused, he struck her to the face on a number of occasions. He then proceeded to rape her vaginally while at all times threatening her with a knife. At one point, he placed the blade of the knife against her anus. She was also subjected by force to oral intercourse. These events continued over a period of time, during which the appellant confined EK, resulting in her having to relieve herself in the living room.
During the commission of these offences, the appellant made enquiries as to who else was present in the house. He told EK he wished to commit similar offences on CM and forced EK upstairs, naked, to CM's bedroom in order to retrieve her. When EK attempted to dissuade the appellant from interfering with CM, due to her young age, he threatened her with the knife and forced both females downstairs. He then raped them vaginally, orally and anally. He forced the victims to perform sexual acts on each other. He sexually assaulted CM multiple times, including digitally penetrating her. At one stage EK attempted to use her phone to make an emergency phone call and the appellant took the phone and smashed it against the wall. He destroyed the sim card by chewing it. The events of this evening lasted for a period in excess of seven hours and only ceased when the appellant, who had been drinking heavily throughout, fell asleep and both females took the opportunity to flee and contact the Gardaí.
The appellant was arrested in the house and taken to the garda station where he made a number of admissions in respect of EK. In respect of CM, he stated that he had no recollection of meeting her but did not deny the offences. Pleas of guilty were entered ten days before the trial date.
In sentencing, the trial judge highlighted the seriousness of the offences and he said: -
‘…on any yard stick, I have asked myself, is this the most serious class of case of this kind with which I have to deal? That is to say, I have dealt -- extreme violence over many hours, two persons coerced and subjected into repeated rapes and extensive sexual acts. The intrusion, by way of burglary, into the household of the complainant. The fact that the accused could not, by any stretch of the imagination, have been of anything other than full responsibility because notwithstanding any question of the consumption of alcohol. One has come across sexual offences which fall into the most serious kind involving, say, abuse of children. But of this class, it is for it is for this class of offence, or because of this level of seriousness, that the penalty of imprisonment for life is available to the criminal courts. I'd like to think that, from such experience as I have or for such reports as exist, I am right in saying that this falls into the more serious category.’
The sentencing judge considered the primary mitigating factor to be the plea of guilty but he noted that it was not an early plea. He said: -
‘…a considerable length of time has elapsed from the date of return to the date on which the plea was agreed or tendered and accepted by the prosecution, even though the plea was not entered until some relatively short time thereafter. So, whilst there were certain admissions made, extensive admissions in many respects, I do not class it as an early plea. One has pleas of guilty at the last moment, say on the day of trial, but as pleas of guilty go, this was a case where there was very substantial, indeed coercive evidence as to the offences. So less weight is obviously attached to pleas of guilty where the evidence is coercive. And the plea, whilst not a last-minute plea, came relatively late in the criminal justice process, which bears upon the extent of the accused's contrition and of course, also bears upon the adverse effect of the matter on the victims.’
The judge, in considering the appellant's evidence of rehabilitation, stated: -
‘But in general, I'm prepared to accept that the plea, allied to what he has sought to do in prison, is indicative of contrition, realisation of his wrongdoing and a willingness to seek to rehabilitate himself.’
The judge remarked that the reason he would not impose a life sentence was due to the appellant's plea of guilty. A sentence of 18 years” imprisonment was imposed being consecutive sentences of nine years in respect of the counts concerning each complainant.
The appellant was 35 years of age at the time of offending. He has one previous conviction regarding the breach of a barring order contrary to s.17 of the Domestic Violence Act 1996. He has worked in several jobs but has not gained steady or continuous employment. At the time of sentencing, the judge received material concerning the appellant's positive engagement with a number of services and programmes whilst incarcerated.
The submissions on behalf of the appellant were advanced under four headings and we will now address each in turn.
The sentencing judge erred in assessing the offence in the appellant's case as meriting in the first instance an indeterminate sentence of life imprisonment, which resulted in an actual sentence being passed, that was disproportionate and out of kilter with previous sentencing precedents.
The appellant submits that the judge erred in taking the view that but for the appellant's plea of guilty, the offences in question merited an indeterminate life sentence and it is submitted that the final sentence imposed was disproportionate and misaligned with sentencing precedent. The appellant submits that, notwithstanding the gravity of the offending in this case, it does not fall into the very rare category of cases for which life imprisonment is appropriate. The appellant refers to the judgment of Geoghegan J. in The People (DPP) v. G. McC [2003] 3 IR 609. :-
‘Even in relation to a fully fought out rape case, a life sentence would be rare. The kind of circumstances that might justify it would be if the rape had been accompanied by extreme violence or if, say there had been a gang rape and in addition there were previous rape convictions.’
Mr Heneghan SC on behalf of the appellant refers to The People (DPP) v. Murray [2017] IECA 292 wherein the Court of Appeal increased a sentence of 15 years to one of 19 years. This case involved the imprisonment of a mother and her four-year-old son and multiple incidents of rape, attempted rape, sexual degradation and severe violence involving the binding of the victim, as well as repeated threats to kill both the victim and her son which lasted over 13 hours. The accused fully contested his trial and had 20 previous convictions, many of which involved violent offences. The appellant submits that there were greater aggravating factors in the Murray case than the present case and yet a similar...
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