DPP v K.C.

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date11 April 2019
Neutral Citation[2019] IECA 126
Docket NumberRecord No: 57/17
CourtCourt of Appeal (Ireland)
Date11 April 2019

[2019] IECA 126

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J.

McCarthy J.

Record No: 57/17

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
K.C.
Appellant

Sentencing – Sexual offences – Severity of sentences – Appellant seeking to appeal against sentences – Whether sentences were unduly severe

Facts: The appellant appealed to the Court of Appeal against the severity of sentences, amounting cumulatively to eighteen years’ imprisonment with four years suspended, imposed by the Dublin Circuit Criminal Court on the 2nd November 2016 in respect of the charges on two bills of indictment, namely Bill No’s 68/2015 and 1104/2015, respectively. Both cases involved sexual offences. The victim in the first case was the appellant’s brother and in the second case his stepbrother. In the first case the trial was contested and the appellant was convicted by a jury. In the second case there were guilty pleas. The following complaints were made: (i) In respect of DUDP 0068/15, (indecent assault), the sentencing judge applied mitigation to the maximum sentence as opposed to the proportionate presumptive headline sentence. Thereafter, insufficient regard was given to the personal and family circumstances of the appellant. The sentence failed to adequately reflect the totality principle, in circumstances where the appellant was already serving a long sentence. (ii) In respect of DUDP 1104/2015 (sexual abuse) insufficient credit was given by the sentencing judge for the guilty plea entered by the appellant. The sentencing judge erred in the manner in which she constructed the sentence and failed to give any adequate explanation for the imposition of consecutive sentences. The sentence failed to reflect the totality principle, in circumstances where the appellant had already been serving a sentence since January 2015.

Held by the Court that, with respect to the sentencing on Bill No 68/2015, as the sentencing judge’s combined adjustment for both totality and mitigation was of the order of 44%, albeit undifferentiated, it was not persuaded that the ultimate sentence of fourteen years to be actually served (assuming compliance with the conditions on foot of which final four years of the aggregate eighteen years was suspended) was disproportionate. The Court accepted that fourteen years to be served represented a heavy penalty, but that having been said the offending conduct committed by the appellant in these cases was egregious. With respect to the sentencing on Bill No 1104/2015, the Court considered that the appellant had not established that the sentencing judge’s recourse to consecutive sentencing was unjustified, and an inappropriate exercise of her discretion. While the Court conceded that a discount of 22% was not generous, it considered that it was within the acceptable margin of appreciation in terms of the sentencing judge’s scope for action. The Court did not consider that the complaint that there was a failure to have regard to the totality was made out.

The Court held that, in the circumstances, it would dismiss the appeals against the severity of the sentences imposed for the offences on both Bills No’s 68/2015 and 1104/2015, respectively.

Appeals dismissed.

JUDGMENT of the Court delivered on the 11th day of April 2018 by Mr. Justice Edwards
Introduction
1

This is an appeal against the severity of sentences, amounting cumulatively to eighteen years” imprisonment with four years suspended (i.e., fourteen years” imprisonment to be served), imposed by the Dublin Circuit Criminal Court on the 2nd of November 2016 in respect of the charges on two bills of indictment, namely Bill No's 68/2015 and 1104/2015, respectively. Both of these cases involved sexual offences and the victim in the first of these cases was the appellant's brother DC, and in the second case his stepbrother CM. In the case involving the offences against DC the trial was contested and the appellant was convicted by a jury. In the case involving the offences against CM the appellant there were guilty pleas.

2

A complicating factor is that the appellant had previously received a sentence of nine years” imprisonment for the offences on Bill No 250/2014, to date from the 12th of January 2015. The victim in that case, which also involved sexual offences, was the appellant's sister, M.S. That trial had also been contested and the appellant was convicted by a jury. Both the conviction and the sentence imposed had been appealed to the Court of Appeal. However, both conviction and sentence were upheld. See The People (Director of Public Prosecutions) v KC [2016] IECA 155 and [2016] IECA 278. The appellant was already serving this sentence when he was sentenced on the on the 2nd of November 2016 in respect of the charges on Bill No's 68/2015 and 1104/2015.

3

Bill No 68/2015 involved 56 counts of indecent assault in respect of the appellant's younger brother DC. On the 2nd of November 2016 he was sentenced to nine years” imprisonment on each count, these sentences to run concurrently inter se, but consecutive to the nine-year sentence that the appellant was already serving, i.e., the sentence imposed on Bill No 250/2014. However, the final four years of the aggregate or cumulative sentence of eighteen years was suspended on certain conditions, leaving a net sentence of fourteen years to be actually served.

4

On the 2nd of November 2016 the appellant was also sentenced to an aggregate sentence of eleven years with two suspended in respect of 22 counts of sexual assault on Bill No 1104/2015, leaving a net sentence of nine years to be actually served, and to date from the 14th of October 2016, being the date on which the appellant was first remanded in custody in respect of those charges. The aggregate sentence of eleven years was comprised of nineteen individual sentences of eight years to be served concurrently inter se but consecutive to eleven individual sentences of three years, also to be served concurrently inter se and to date from the 14th of October 2016. Although all of the charges involved sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 (the Act of 1990), some of the offences attracted a higher potential penalty because they were perpetrated after 27th of September 2001 when s.37 of the Sexual Offences Act 2001 (the Act of 2001) became operative. Section 37 of the Act of 2001 amended the maximum potential penalty provided for in s.2 of the Act of 1990 as originally enacted, which was imprisonment for up to five years in all cases regardless of the age of the victim. By virtue of amendments to s.2 of the Act of 1990 effected by s.37 of the Act of 2001, which was commenced on the 27th of September 2001, there is now a maximum potential penalty of up to fourteen years” imprisonment for sexual assaults committed on a person under the age of 17 years, and a maximum potential penalty of up to ten years” imprisonment for sexual assaults in all other cases. The sentencing judge accordingly dealt with the counts preferred against the appellant in two groups; imposing eight years for offences committed after the 27th of September 2001, and three years for those committed before that date; and the sentences in the first group were made consecutive to those in the second group.

5

The net effect of all of the above is that the appellant is serving an aggregate sentence of eighteen years” imprisonment with four years suspended, to date from the 12th of January 2015 in respect of the offences of which he was convicted on Bills No's 240/2014 and 68/2015. Concurrent with this sentence, and completely overlapped by it, he is also serving an aggregate sentence of eleven years with two years suspended, to date from the 14th of October 2016, in respect of the offences to which he pleaded guilty on Bill No 1104/2015.

6

The appellant now appeals against the severity of the sentences imposed on him in respect of the offences covered by Bills No's 68/2015 and 1104/2015, respectively.

Background Facts
Bill No 68/2015
7

The fifty-six counts of indecent assault on Bill No 68/2015, in which the victim was the appellant's younger brother DC, included numerous instances of genital touching, masturbation (the victim being forced to masturbate the appellant and the appellant masturbating the victim) and three instances of anal penetration of the victim. The offending occurred in the period between 1980 and 1985, when the appellant was aged between 18 and 23 years and the victim was aged between 9 and 14 years. The victim was the second youngest child in a large family living together in a house in Dublin. He shared a bedroom with the appellant, another brother and his sister. The complainant alleged that following the first incident the assaults happened regularly over the following five years. The victim was particularly vulnerable at the time that the abuse commenced, as it was not long after he had lost a younger brother in a road traffic accident.

8

Although the jury had returned their verdict finding the appellant guilty on the 22nd of October 2015, sentencing was deferred for several reasons, in particular because the sentence in relation to MS was still under appeal. Also the sentencing judge requested a medical report on the appellant's condition. Further, there was uncertainty concerning the applicable maximum penalty, a matter which was the subject of on-going litigation and which uncertainty was destined to be ultimately resolved by the Supreme Court in The People (Director of Public Prosecutions) v Maher [2016] IESC 31.

9

On the 30th of May 2016 the appeal against the appellant's conviction for the offences involving MS was dismissed by the Court of Appeal.

10

On the 9th of June 2016, the Supreme Court rendered its decision in the Maher case, holding that the maximum sentence available for the offence of indecent assault upon...

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1 cases
  • DPP v S.C.
    • Ireland
    • Court of Appeal (Ireland)
    • 19 December 2019
    ...structured consecutive sentences in order to ensure a proportionate sentence. As observed by Edwards J. in The People (DPP) v. KC [2019] IECA 126: “A judge has a very wide discretion as to how he/she decides to structure a sentence to effect the punishment that he/she believes to be appropr......

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