DPP v K (G)

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IECCA 110
• Date: 31 July 2008
• Court: Court of Criminal Appeal
• Docket Number: CCA No. 12/07 [2008] IECCA 110

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

and

G. K.

APPLICANT

Finnegan J.

Herbert J.

Clark J.

CCA No. 12/07

[2008] IECCA 110

COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Sentencing - Sexual offences - Appeal against severity of sentence - Proportionality - Mitigation - Factors to be taken into account - Whether sufficient regard had to plea of guilty

Facts: the applicant had been convicted, following a late guilty plea, of aggravated sexual assault and sentenced to life imprisonment by the trial judge. He had two previous convictions for rape and committed the present offence some six months following his release from prison for another rape, all of which the sentencing judge took into account. The sentencing judge determined that in the context of the overall circumstances of the offence and of the offender, mitigation of sentence was not appropriate. The applicant appealed the severity of sentence.

Held by the Court of Criminal Appeal in substituting the sentence of life imprisonment for a sentence of sixteen years, the final three years suspended, and a period of ten years post-release supervision that the duty of a sentencing court was to pass an appropriate sentence taking into account the particular circumstances of the crime and the particular circumstances of the convicted person, distinguishing factors which aggravated or mitigated the offence and factors which mitigated sentence. That, while pervious good character was relevant to the character and circumstances of the accused which could be mitigating factors in terms of sentence, previous convictions were relevant not in relation to mitigation of sentence but in aggravation of the offence. Accordingly, in determining an appropriate sentence, the trial judge was entitled to have regard to the two previous convictions of rape, the fact that the offence was committed within six months of having been released from prison for an offence of rape and the matters disclosed in the Probation Service report. The concept of deterrence and of the protection of society was a permissible input into sentencing but to a limited extent only and could not be conflated with a form of general preventative incarceration. The circumstances surrounding the commission of the offence were not of such an exceptional nature as to warrant the imposition of a life sentence.

Reporter: P.C.

1 Judgment of the Court delivered on the 31st day of July 2008 by Finnegan J.

2 In the week preceding the date fixed for trial the applicant pleaded guilty to a count of aggravated sexual assault He was not arraigned on a second count of threat to kill contrary to section 5 of the Non-fatal Offences against the Person Act 1997 but it was agreed that this could be taken into account in sentencing. He was sentenced to life imprisonment. The Criminal Law (Rape) Amendment Act 1990 section 3 pursuant to which the applicant was charged provides as follows:

• “(1) In this Act ‘aggravated sexual assault’ means a sexual assault that involves serious violence or the threat of serious violence or as such is to cause injury, humiliation or degradation of a grave nature to the person assaulted.

• (2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life.

• (3) Aggravated sexual assault shall be a felony.”

3 The offence was committed about midnight between Friday the 17th September and Saturday the 18th September 2004 in a County Dublin village. The victim W.H. was born on the 6th September 1982 and was then 22 years of age and lived in the same village as the applicant. She was then a shop assistant and having completed her day’s work on the Friday evening socialised with her workmates before getting a bus to her home. Her intention was to visit the home of a friend in the village and before doing so she stopped at an off-licence and having made a purchase proceeded to walk towards her friend’s house. As she was passing some waste ground the applicant came up behind her, put one hand over her mouth, another about her waist and forced her into an area of waste ground. He threatened her that if she made a noise he would “slice her” and “cut her throat”. He told her that he knew where her parents lived and that if she told the police or her parents he would burn their house down when they were all asleep. He told her that he knew her brothers and sister. The assault was perpetrated over a period of some seventy minutes. During the same he forced his victim to drink from a can of beer and in doing so damaged her teeth. As to the details of the assault it is sufficient to say that he performed oral sex on his victim and inserted his fingers into her vagina on a number of occasions. The threats made to the victim were credible and she believed them.

4 Following his arrest at interview the applicant gave an account of the evening in which he admitted in substance the acts complained of but maintained that they were performed, almost against his will, at the insistence of his victim. He persisted in this account and it was only in the week preceding the trial date that he acknowledged his guilt by pleading to a charge pursuant to section 3 of the Criminal Law (Rape) (Amendment) Act 1990.

5 The learned trial judge sentenced the applicant to imprisonment for life. It is clear from the transcript that at sentencing the learned trial judge took into account the following matters:

6 1. The many dysfunctional features of the applicant’s background.

7 2. The details of the offence.

8 3. The credible threat to kill.

9 4. The credible threat to burn out the victim and her parents.

10 5. The applicant on the 20th July 1987 at Coventry in the United Kingdom was convicted of rape and sentenced to a term of eight years imprisonment.

11 6. On the 4th October 1999 the applicant was convicted of rape in this country and sentenced to a period of ten years imprisonment. In that case a date for review of sentence was given and on review he was released from prison in April 2004.

12 7. This offence was committed some six months after his early release.

13 8. The contents of a Probation Service Report. As explanation for his conduct the applicant gave that when he drank he thought of his ex-partners who had let him down and done him wrong over the years. The applicant has insight into his offending pattern which is a pattern of assault and violent sexual behaviour perpetrated on anonymous innocent young women. Having regard to his history of sexual offending prison is not a deterrent to him. He is at high risk of re-offending.

14 The learned trial judge concluded as follow:

15 “I do not find in the case any mitigating factors other than the plea of guilty, which came on the date of the trial. I have sympathy for the highly dysfunctional factors in the accused’s background and would normally be bound to have regard to them but in the present case there is a greater counter consideration in that I have come to the view, that in all the circumstances of this case, I will not be adequately protecting the community and in particular what are described by the Probation Officer as ‘anonymous young women’ by imposing anything less than a life sentence and I sentence the accused to imprisonment for life to date from the 13th March 2006.”

16 The learned trial judge in passing sentence relied heavily on the judgment of this court in The Director of Public Prosecutions v Robert Melia (unreported) 29th November 1999 which was an application by the Director of Public Prosecutions pursuant to the Criminal Justice Act 1993 section 2. The respondent, having pleaded guilty to three counts of aggravated sexual assault contrary to section 3 of the Criminal Law (Rape) (Amendment) Act 1990 and other offences arising out of the circumstances of those assaults, was sentenced to nine years imprisonment on each of the counts of aggravated sexual assault and three years on each of the other offences, all the sentences to be concurrent. The three offences of aggravated sexual assault in that case were accompanied by violence and in two cases serious threats although, in the view of this court, the sexual details of the assaults were less serious than in the present case. The respondent had a previous conviction for rape for which he had been sentenced to six years imprisonment on the 30th July 1991 while the offences to which he pleaded guilty occurred in September and October 1997. The Probation Report on the respondent described him as representing a very serious risk to public safety. In giving the judgment of the court Keane J. (as he then was) said:

17 “A sentence of nine years even with the final year suspended is undoubtedly (a reasonably significant custodial) sentence, but the court is satisfied, applying the principles already cited, that it cannot be said to reflect the gravity of the entirely separate offences of aggravated sexual assault and false imprisonment to which the respondent pleaded guilty. That, of itself, would be sufficient to raise at least a question as to whether the sentence imposed was unduly lenient within the meaning of section 2 of the 1993 Act. But there must also be taken into account not merely the other offences to which the applicant pleaded guilty but the disquieting fact that he had been convicted on a previous occasion of rape and had received a sentence of six years imprisonment. When to that is added the assessment of the Probation Officer that the respondent is a ‘very disturbed and dangerous man’, the conclusion is inevitable that the sentence in the present case erred on the side of undue leniency.”

18 The court substituted a term of twelve years imprisonment in respect of each of the counts of aggravated sexual assault. In so doing the...