DPP v Krol

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 22 June 2017
• Neutral Citation: [2017] IECA 205
• Docket Number: 302 CJA/16
• Court: Court of Appeal (Ireland)
• Date: 22 June 2017

[2017] IECA 205

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Edwards J.

Hedigan J.

302 CJA/16

In the matter of Section 2 of the Criminal Justice Act 1993

Between

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Marek Krol

Respondent

Sentencing – Sexual assault – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, the DPP, applied to the Court of Appeal seeking, pursuant to s. 2 of the Criminal Justice Act 1993, a review of a sentence that was imposed on the respondent, Mr Krol, on grounds of undue leniency. The sentence sought to be reviewed was one of two years imprisonment, wholly suspended, which was imposed in respect of one count of sexual assault in the Circuit Court in Cork on 1st November, 2016. The issue between the parties was whether the nature of the offence was such that there had to be a custodial sentence actually served and that any sentence which did not include a custodial element had to be seen as an error in principle involving a substantial departure from a sentence that would be regarded as appropriate.

Held by the Court that in DPP v Stewart [2016] IECA 369 it required someone who had initially received an entirely suspended sentence to go into custody and acknowledged that it was all the more difficult for him to face custody at that stage. The Court held that this was a consideration that applied in this case too and so, as in Stewart, the Court would impose a sentence that would be less than it would have imposed had it been dealing with the matter at first instance.

The Court held that, having regard to the fact that the judge had decided on a headline sentence somewhat lower than in Stewart and to the fact that there were certain aggravating factors present in Stewart which were not present in this case, it would deal with the matter by leaving the headline sentence chosen by the trial judge of two years in place and then proceed to suspend all but the last seven and a half months of that sentence. The Court held that the terms of the suspension would be as in the Circuit Court.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 22nd day of June 2017 by Mr. Justice Birmingham

1 The matter before the Court sees the DPP seeking, pursuant to s. 2 of the Criminal Justice Act 1993, a review of a sentence that was imposed on the respondent, Mr. Krol. The sentence sought to be reviewed is one of two years imprisonment, wholly suspended, that was imposed in respect of one count of sexual assault in the Circuit Court in Cork on 1st November, 2016.

2 The background to the matter coming before the courts is to be found in events that occurred on 1st February, 2016. On that occasion the injured party, Ms. H., had been out socialising with friends in Cork city centre. A stage was reached where she parted company from her friends. She was feeling tired. At approximately 1.20 am Gardaí were contacted by a member of the public who had concerns about the safety of a female. Garda John Twomey responded to the call and when he came on the scene he found a female whom he believed to be in her twenties in the arms of a male whom he believed to be in his fifties. The female appeared to be passed out and to be slumped over. The male was caressing her and kissing her neck. Gardaí approached and separated the couple. It was obvious that the female was unresponsive and had passed out. When she woke and Gardaí pointed out the male to her, she indicated that she did not know him and did not know that she had been in his arms. Gardaí reunited Ms. H. with her friends and made sure that she got home safely. The following evening, when Garda Twomey was again on duty, he viewed CCTV footage from the scene which revealed that the incident was more serious than had first been realised. The footage showed that the male had opened the female's pants, had his hands inside her pants, and was touching her. When the Gardaí arrived the pants had been closed again and she was fully clothed. The injured party was informed of the details of what had emerged from the CCTV footage and having taken time to consider her position, provided Gardaí with a statement of complaint. The respondent was then arrested on 1st April, 2016 and, having being shown the CCTV footage, made admissions.

3 The Court was provided with details of a Victim Impact Report. In it, the injured party, who was 25 years of age, explained that she was horrified and extremely embarrassed when she came to view the footage. She explained that her general practitioner had advised her to attend cognitive behavioural therapy sessions and that she had done this. Significantly, she commented that the thought of speaking in court made her very anxious. She was, she said, ‘absolutely dreading it’. The complainant said that it was a relief to learn that a guilty plea had been entered which meant that she would not have to relive the experience in front of a court room, adding ‘I am so glad that the person concerned acknowledged and accepted the crime he committed’. The injured party added that overall it had not been a pleasant experience but that she hoped to be able to put it behind her and to move on with her life.

4 In terms of the background and circumstances of the respondent, he was a 53 year old man at the time of the assault, a Polish national, and worked as a handyman and painter. In the course of the evidence offered to the Court by the investigating Garda, it emerged that the then accused had very poor English indeed.

5 The sentencing judge referred to the general obligations on a court when sentencing and then commented as follows:-

‘[T]he first matter I must look at is to see whether there are aggravating circumstances. It is a sexual assault described by [defence counsel] as opportunistic in the sense that the victim was clearly not in a position to resist. In the scale of things, I don't believe there are, as such, aggravating factors. It is an assault, freestanding and in it of itself. On the scale of things, I view this as residing between the lower to the mid end of the scale and therefore, on preliminary examination and having regard to the scaling I have just applied and before I take into account the mitigating and other circumstances, this sentence --- this matter...