DPP v K.M.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date24 October 2016
Neutral Citation[2016] IECA 308
Date24 October 2016
Docket NumberRecord No 283/15

[2016] IECA 308

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No 283/15

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

Sentencing – Indecent assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant was convicted by a jury at Cork Circuit Criminal Court on the 25th of November, 2015 following a two day trial of a single count of indecent assault. The appellant was sentenced to two years imprisonment, and appealed to the Court of Appeal against the severity of his sentence on two grounds. First it was contended that the trial judge, in passing a sentence of two years imprisonment at a time when it was widely believed that the maximum possible sentence was two years imprisonment, placed the offending conduct at too high a point on the scale of seriousness. Secondly, it was suggested that the trial judge failed to give a sufficient discount to reflect the mitigating circumstances in the case.

Held by Edwards J that, in the circumstances of the case, the Court was not disposed to uphold the first ground of appeal; there were significant aggravating circumstances, including the context in which the offence was perpetrated, the breach of trust involved and the age of the victim. Edwards J held that the trial judge was therefore correct in suggesting that the offence fell in to the mid-range. Edwards J considered that insufficient discount was given for mitigation in circumstances where the appellant was a first time offender, was of significant previous good character and was liable to suffer the additional consequences of losing both his income and profession as a consequence of his conviction. In the circumstances, therefore, the Court was disposed to quash the sentence of two years imprisonment imposed by the Circuit Court judge and proceeded to re-sentence the appellant afresh.

Edwards J held that he would, in substitution for the sentence of two years imprisonment imposed by the court below, sentence the accused to twelve months imprisonment, but with credit to be given for any time served heretofore.

Appeal allowed.

Judgment of the Court (ex tempore) delivered 24th of October 2016 by Mr. Justice Edwards.
Mr. Justice Edwards
Introduction.
1

In this case the appellant was convicted by a jury at Cork Circuit Criminal Court on the 25th of November, 2015 following a two day trial of a single count of indecently assaulting one M.H., on the 23rd of December, 1989.

2

The appellant was sentenced to two years imprisonment, and now appeals against the severity of his sentence.

Grounds of Appeal
3

The appellant has advanced his appeal essentially on two grounds. First it is contended that the trial judge, in passing a sentence of two years imprisonment at a time when it was widely believed that the maximum possible sentence was two years imprisonment, placed the offending conduct at too high a point on the scale of seriousness. Secondly, it is suggested that the trial judge failed to give a sufficient discount to reflect the mitigating circumstances in the case.

Relevant evidence
4

The relevant facts of the case are fully set out in this Court's recent judgment in respect of the appellant's appeal against his conviction, which judgment was delivered on the 13th of October 2016. It is unnecessary in the circumstances to repeat them.

5

In addition, at the sentencing hearing the trial judge heard evidence that the appellant had no previous convictions, that he was a married man with four adult children, that he had lost his income and was likely to lose his profession as a consequence of his conviction, that he had a number of health difficulties, and that members of his family, including his wife, children and elderly parents had been greatly affected by the case. The court was also told that he was the sole carer of his elderly father who was in bad health.

6

The sentencing court also received and took account of a character reference from a Dr John Burke, General Practitioner, who had previously employed the appellant as alocum tenens from time to time, and who had been friendly with the appellant for many years, testifying as to the appellant's competence as a doctor, as to his professionalism in the discharge of his duties during the times that he had worked for Dr Burke, and as to his previous good character.

7

The court also received, and heard read into the record by MH, a lengthy victim impact statement outlining the many respects in which MH had been traumatised and affected in her life by the abuse perpetrated on her by the appellant.

The sentencing judge's remarks
8

In sentencing the appellant to two years imprisonment the trial judge stated:

‘[T]his is a serious case in which a man in his 30s, then practising as a doctor, abused a teenager, a teenage patient, then of 15 years of age. The actual assault was external, in that it was a feeling of her vaginal area outside of her clothes, and...

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