DPP v Lyons

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IECCA 27
• Court: Court of Criminal Appeal
• Docket Number: [282CJA/12]
• Date: 31 July 2014

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

BETWEEN/

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

PROSECUTOR/APPLICANT

AND

ANTHONY LYONS

ACCUSED/RESPONDENT

[2014] IECCA 27

[282CJA/12]

THE COURT OF CRIMINAL APPEAL

Sexual Assault – Sex Offenders Act, 2001 – Criminal Law – Conviction – Sentence Leniency – Defence – Involuntary Intoxication – Quashing Order

Facts: The respondent to this application, was convicted on the 28 ^th June 2012 of the offence 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. He had pleaded not-guilty at trial, and whilst he had not contested the complainant”s account of the assault, he relied upon the defence of involuntary intoxication due to the taking of prescribed medication. This was not accepted by the jury. He was sentenced to 6 years imprisonment with 5½ years of that sentence suspended. He was also ordered to pay the sum of €75,000 compensation to the victim pursuant to s.6 of the Criminal Justice Act, 1993. The suspended sentence was subject to the following conditions, namely, that the sum of €75,000 be paid within one month; that he enter into a bond to keep the peace and to be of good behaviour for a period of 2 years following his release; and that he be supervised for a period of 12 months post-release. The applicant, the Director of Public Prosecutions, brought an application before the court pursuant to s.2 of the Criminal Justice Act, 1993 and requested that the Court quash the sentence imposed by the court of trial on the grounds that it was unduly lenient. The case made by the DPP was that the judge gave undue weight to mitigating factors, including the good character of the accused, his distress and financial situation amongst others. Counsel for the respondent, argued that all the matters which the trial judge took into account as mitigating factors were relevant factors, that he had carefully balanced those factors against the gravity of the offence and imposed a prison sentence, with ancillary orders, that was within the ambit of his discretion and did not contain any error of principle.

Held by Justice Murray that there had been no serious dispute between the applicant and the respondent concerning the trial judge”s conclusion that the degree of gravity of the offence could properly be reflected in a sentence of 6 years imprisonment, in the upper echelon of the scale, before mitigating factors. Having examined the available evidence pertaining to the assault, including the fact that the assault was a wanton and violent attack on the complainant in her local neighbourhood, at night on the public road, and which included contact and digital penetration of her private parts, Justice Murray agreed that the offence required a significant custodial sentence. Thus, it was the opinion of the Court that the case was one which manifestly warranted a more significant custodial sentence than the one of 6 months imposed by the trial judge, notwithstanding the mitigating factors which he was entitled to take into account. Accordingly, it was the opinion of Justice Murray, having had regard to the gravity of the offence, as identified by the trial judge himself, that he erred in principle by giving undue weight to the range of mitigating factors and imposed a sentence that was unduly lenient. Accordingly, the Court acceded to the DPP”s application and quashed the sentence imposed in the Circuit Court. Taking into account the already examined mitigating factors, as well as the victim impact statement, Justice Murray concluded that the respondent should be returned to prison, notwithstanding that he had completed and been released for some time from the 6 month sentence which he received in the Circuit Court. Taking into account all the circumstances, which had been identified as relevant, Justice Murray ordered that the portion of a term of 6 years imprisonment which he should be directed to serve should be 2 years. The Court, therefore, imposed a sentence of 6 years, suspending the last 4 years. The respondent was also ordered to enter into a bond to keep the peace and be of good behaviour while in prison and for a period of 3 years following his release. It was also ordered that he be supervised for a period of 12 months post-release. In addition, he would remain on the sex offenders register for a period of 10 years from the date of conviction.

Murray J.

JUDGMENT of the Court delivered on the 31 ^st day of July, 2014 by Murray J. (UNAPPROVED)

1 Conviction and Sentence

2 1. The respondent to this application, the accused Anthony Lyons, was convicted on 28 ^th June, 2012 after a trial by judge and jury, of the offence 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. The offence occurred on the 3 ^rd October, 2010. The accused had pleaded not guilty at the trial. He did not contest the essence of the complainant”s account of the sexual assault, but relied on a defence of involuntary intoxication due to the taking of prescribed medication. This was not accepted by the jury.

3 2. In order to place the matter in context it may be noted that the Act of 1990, as amended, provides for two offences of sexual assault. Sexual assault contrary to s.2 of the Act, concerns the commission of an assault which is an indecent assault. Originally the Act of 1990 provided for a maximum term of imprisonment for this offence of 5 years, but this was amended to 10 years by the Act of 2001 with effect from 18 ^th September, 2001.

4 3. Section 3 provides for the offence of aggravated sexual assault which is defined as meaning a sexual assault that involves serious violence or the threat of serious violence, or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The acts committed by the respondent were not considered by the DPP to fall within the ambit of this s.3 offence, as the charge laid against the respondent was pursuant to s.2 of the 1990 Act, as amended.

5 4. A sentencing hearing took place in the Circuit Criminal Court following conviction on 28 ^th June, 2012 and subsequently on the 9 ^th, 12 ^th and 30 ^th July, 2012. In addition to having all the facts and circumstances concerning the assault before him, the trial judge had a victim impact statement from the complainant, a psychologist”s report tendered on behalf of the accused and a probation officer”s report. He also heard garda evidence and evidence called on behalf of the respondent. At the conclusion of that hearing, the accused was sentenced to 6 years imprisonment with 5½ years of the sentence suspended. He was also ordered to pay the sum of €75,000 compensation to the victim pursuant to s.6 of the Criminal Justice Act, 1993. The suspended sentence was subject to the following conditions, namely, that the sum of €75,000 be paid within one month; that he enter into a bond to keep the peace and to be of good behaviour for a period of 2 years following his release; and that he be supervised for a period of 12 months post-release.

6 The Application

7 5. The applicant, the Director of Public Prosecutions, brought an application before this Court pursuant to s.2 of the Criminal Justice Act, 1993 and requested that the Court quash the sentence imposed by the court of trial on the grounds that it was unduly lenient.

8 6. The application of the DPP pursuant to s.2 of the Act of 1993 was heard before this Court in November, 2013. However, the Court was then not in a position to finally determine the issues in that case, due to the sudden illness of one of the members of the Court. During that period of illness another member of the Court retired from the bench. Consequently, it was decided that the matter would be relisted for a complete re-hearing of the application of the DPP. This hearing took place on the 29 ^th day of May, 2014. The Court reserved judgment.

9 Background Facts and Circumstances of the Offence and Conviction

10 7. At approximately 2.15 a.m. on the 3 ^rd October, 2010 the complainant was walking along Griffith Avenue, Dublin. Earlier the previous evening she had attended a family event in a nearby hotel. Her evening out concluded in a nearby licensed premises which she left at about 2 a.m. It was about a 20 minute walk to her home from there. It was during the course of that walk home that the sexual assault occurred. As she was walking along one of the darker stretches on Griffith Avenue the complainant suddenly became aware of a man on her left. This startled her because she did not realise there was anyone behind her. She felt an arm go around her right side and the man said something like ‘ Are you getting home safely’. She tried to shove him away but she was tackled to the ground falling face down. He was on her back and she was screaming. He kept trying to silence her. He put his hand around her mouth. She had her phone in her hand and was trying to use it. He tried to grab it. He managed to take the cover off the phone which may have led him to believe he had got the phone because he then stopped trying to get hold of it. She was wearing a heavy winter coat with a large hood, which was over her head. She still had her phone in her hand under the hood and was able to telephone the gardai. At this stage she could feel his hands down her front. He touched her breasts, outside her clothes with both hands. He groped her buttocks with his hand inside her underwear. He then struggled to get her underwear down and managed to pull it down to some extent. He put a hand between her legs and felt outside of her vaginal area and inserted fingers in her vagina.

11 8. The assault went on for three or four minutes. The complainant managed to contact the gardai on the phone...