DPP v J.H.

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 07 July 2017
• Neutral Citation: [2017] IECA 206
• Docket Number: Record No. 15/2017
• Court: Court of Appeal (Ireland)
• Date: 07 July 2017

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

J. H.

APPELLANT

[2017] IECA 206

Mahon J.

Birmingham J.

Mahon J.

Hedigan J.

Record No. 15/2017

THE COURT OF APPEAL

Sentencing – Sexual offences – Young offender – Appellant seeking to appeal against sentence – Whether sentencing judge sufficiently discounted the headline sentence on the basis of the appellant’s young age and lack of maturity at the time when the offences were committed

Facts: The appellant pleaded guilty and was convicted on the 22nd July 2016 at the Central Criminal Court of four offences, two of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, and two of rape contrary to s. 4 of the 1990 Act. In respect of the first sexual assault offence the appellant received a six month sentence and in respect of the second, he received a twelve month sentence. In respect of one of the rape convictions, the appellant received a two year sentence, and in respect of the other, a sentence of four years imprisonment. Sentences were directed to be served concurrently and to date from the 28th November 2016. The final two years of the four year sentence was suspended on conditions for a period of two years from the date of his final release from prison. The appellant appealed to the Court of Appeal against those sentences on the grounds that the sentencing judge erred in principle and in law in failing to: (i) give due allowance in sentencing the accused to the fact that at the time of the offences he was then aged fifteen years and he was the youngest in his school class with consequent underdeveloped maturity; (ii) give adequate weight to the fact that the accused had cooperated with the Gardaí in their investigation and that he pleaded to the counts for which he was indicted at an early stage; (iii) properly recognise that the accused had been rehabilitated in the years following his offending and had lived a blameless life in that period.

Held by the Court that the sentencing judge did not sufficiently discount the headline sentence on the basis of the appellant’s young age and lack of maturity at the time when the offences were committed and more particularly with regard to the fact that he was a fifteen year old child at the time the offences were committed.

The Court held that the appropriate headline sentence for the appellant in the particular circumstances of this case, particularly having regard to his youth and immaturity at the time the offences were committed, was two years and six months imprisonment rather than four years nominated by the court below. Because of the strong mitigating factors in the case, and in particular the extent to which the appellant had admitted his wrongdoing, cooperated with the garda investigation and pleaded guilty at an early stage in the proceedings, and also his lack of previous convictions and good behaviour in recent years, the Court held that the actual sentence imposed would be one of eighteen months imprisonment with the final six months of that term suspended for a period of twelve months on his entering into a bond in the sum of €100 to keep the peace and be of good behaviour.

Appeal allowed.

JUDGMENT of the Court delivered on the 7th day of July 2017 by Mr. Justice Mahon

1 The appellant pleaded guilty and was convicted on the 22nd July 2016 at the Central Criminal Court of four offences, two of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, and two of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. In respect of the first sexual assault offence the appellant received a six month sentence and in respect of the second, he received a twelve month sentence. In respect of one of the rape convictions, the appellant received a two year sentence, and in respect of the other, a sentence of four years imprisonment. Sentences were directed to be served concurrently and to date from the 28th November 2016. The final two years of the four year sentence was suspended on conditions for a period of two years from the date of his final release from prison. The appellant has appealed against these sentences.

2 At the time of the offences the female complainant was eleven years old, while the appellant was fifteen years old. As of the date of sentence their respective ages were nineteen years and twenty three years. The offending occurred in 2008 in circumstances where the complainant would visit the appellant's home with her friend, the appellant's sister, after the two girls had finished their horse riding lessons. The appellant would persuade the girls to play a game which involved them being blind folded, and while blind folded they would have to guess the identity or description of something placed in their hand, or in their mouths by the appellant. In the case of the appellant's sister the items in question were entirely innocuous, but in the case of the complainant the item in question was the appellant's penis, with the consequence that otherwise innocent childhood games became an occasion of serious and repeated sexual assault. Details of the instances were reported to the gardaí in 2013 when the appellant made a full statement. None involved violence or the threat of violence.

3 When contacted by the gardaí in 2013, the appellant attended the gardaí station and made a voluntary statement. He described his actions as experimental and said he was very sorry for what had occurred.

4 The negative impact on the victim was and remains considerable. She bravely revealed to the court below, in a detailed victim impact statement read by her in court, of the enormous struggle she has endured in coping with the abuse inflicted on her by the appellant.

5 The appellant has no previous convictions. He subsequently went to college and qualified as an engineer. The learned sentencing judge expressed his satisfaction that there was no risk of reoffending.

6 In the course of his comprehensive sentencing judgment, the learned sentencing judge determined that the appropriate headline sentence was one of eight years ‘in normal circumstances’ but that that would drop to four years imprisonment on the basis of the appellant's youth and lack of maturity at the time when the offences where committed. He considered as aggravating factors the degree of subterfuge deployed and the repetitive and escalating nature of the conduct.

‘So, in my view, the basic ingredients of the conduct required to commit these offences in...