DPP v J.F.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 09 December 2016
• Neutral Citation: [2016] IECA 390
• Docket Number: 40/16
• Court: Court of Appeal (Ireland)
• Date: 09 December 2016

[2016] IECA 390

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Sheehan J.

Mahon J.

40/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

J.F.

Appellant

Crime & sentencing – Sexual offences – Attempted rapes and sexual assaults – Appeal against severity of sentence

Facts: The appellant had been convicted of multiple counts of sexual offences committed against his niece, who had an intellectual disability. He contended the sentence handed down was unduly severe and sought to appeal.

Held by the Court, that the appeal would allowed. The Court was satisfied that despite the aggravating factors present, the trial Judge had identified too high a headline sentence given the substantial mitigating factors present such as the appellant’s own mental state. On that basis, the sentence would be varied.

JUDGMENT of the Court (ex tempore) delivered on the 9th day of December 2016 by Mr. Justice Birmingham

Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentence sought to be appealed is one of twelve years imprisonment with the final six years of that term suspended which was imposed in the Central Criminal Court on the 15th January, 2016. The sentence was imposed in respect of counts of attempted rape and on the same occasion lesser concurrent sentences of six years imprisonment were imposed in respect of counts of sexual assault.

2 The background to this matter is that the appellant and the complainant are uncle and niece. The appellant is the brother of the complainant's late father. The appellant is aged 75 years and his niece is aged 21 years. The offending was charged as occurring in two phases between 2005 and 2008 and between 2010 and 2012. The complainant was therefore between eleven and eighteen years at the time the offences were committed. The evidence in the Central Criminal Court is that the offences on the indictment – there were eight offences on the indictment – relating to four incidents reflected the entirety of the offending behaviour and were not to be regarded as sample counts.

3 The complainant has an intellectual disability and she attends a special needs facility. At the time of the sentence hearing she was in residential care with the HSE. She was a vulnerable young adult, both of her parents being dead. Her vulnerability was and is accepted as being an aggravating aspect of this case.

4 At one stage while in residential care, she disclosed to her social worker that she had been abused by her uncle. She was then interviewed by specialist garda interviewers. As part of the investigation in May 2014, the appellant was arrested and while detained he was interviewed on three occasions and in the course of these interviews while initialising minimising his activities somewhat, he essentially made admissions and confirmed what his niece had stated had occurred. All the indications from early on were that this was not a case that was going to be contested and this was then confirmed when a plea was entered when the matter was first listed in the Central Criminal Court.

5 At the sentence hearing a short but very significant impact report was prepared by the injured party and was read to the court by the investigating garda. It is couched in simple, indeed childish language, but there can be no doubt that this abuse impacted upon her very severely indeed. She concluded that statement as follows:-

‘Sometimes I feel...