DPP v A.M.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 14 September 2020
• Neutral Citation: [2020] IECA 270
• Docket Number: Record Number: 257/19
• Date: 14 September 2020

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-AND-

A.M.

APPELLANT

[2020] IECA 270

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 257/19

THE COURT OF APPEAL

Sentencing – Indecent assault – Totality – Appellant seeking to appeal against sentence – Whether sentence was disproportionate in light of the totality principle

Facts: The appellant pleaded guilty to five counts of indecent assault in Dublin Circuit Criminal Court and on the 11th November 2019 he received an aggregate sentence of nine years’ imprisonment with the final twelve months suspended on terms. He appealed to the Court of Appeal against sentence. He put forward the following grounds of appeal: (1) the sentencing judge erred in proceeding to sentence the appellant in the absence of a plea in mitigation; (2) the overall sentence imposed on the appellant was disproportionate in light of the totality principle; (3) the sentencing judge gave inadequate credit for the numerous mitigating factors in the case; (4) the comparators referred to do not demonstrate that the sentence imposed was within sentencing norms having regard to the particular circumstances of the offences and the appellant.

Held by the Court that the sentence was somewhat disproportionate in terms of the totality principle. In those circumstances, the Court intervened to a limited extent, quashed the sentence imposed, substituted a total sentence of eight years, and suspended the final year of that sentence on the same terms as in the Circuit Court.

The Court held that the sentence imposed on Counts 1 and 4 would remain, the sentence on Count 6 would be reduced by six months, the sentence on Count 11 would remain, and the sentence on Count 8 would be reduced by six months. The sentence imposed on Count 8 was imposed on a consecutive basis, as in the Circuit Court. The Court held that the bond was to be entered before the Governor or the Assistant Governor of the prison.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 14 ^th day of September 2020 by Ms. Justice Isobel Kennedy

1 This is an appeal against sentence. The appellant pleaded guilty to five counts of indecent assault in Dublin Circuit Criminal Court and on the 11 ^th November 2019 he received an aggregate sentence of nine years' imprisonment with the final twelve months suspended on terms.

Background

2 The offending in question relates to a period between the 1st of April 1985 and the 31st of December 1986 when the complainant, the daughter of the appellant, was aged between 9 and 10 years old. The appellant was 34 years old at the time of offending. The offending took place in the family home and began when the appellant would come into the complainant's room at night and get into the bed beside her and he would touch her vagina and touch her all over and kiss her face. The abuse escalated over time from touching her to penetrating her vagina with his fingers. The appellant would also rub his penis on her stomach and vagina. The appellant threatened the complainant that if she spoke out about the abuse it would break up the family.

Timeline

3 On April 2015, the complainant made a statement to Gardai detailing the abuse in question and the appellant was arrested in July 2015. He initially denied the allegations and the case was listed for trial in February 2018. The trial did not proceed on that date and on the second trial date, which was the 8 ^th July, with the trial due to commence on the 11 ^th July 2019, he entered pleas of guilty. On the 30 ^th July 2019. the matter was listed for sentence and evidence for the prosecution was called. The case was adjourned to the 5 ^th November 2019 in order to allow for the preparation of a probation report, in which the appellant denied carrying out the offences to which he had pleaded guilty. The appellant's legal team came off record and the case was adjourned to allow the appellant to obtain new legal representation.

4 On the 11 ^th November 2019. the sentencing matter was due to proceed. The appellant had still not obtained new legal representation and the matter was adjourned for several hours in order to allow the appellant to speak to a solicitor. Having spoken to a solicitor, the appellant indicated that he wished to be sentenced that day and he wrote a letter to the judge, inter alia, confirming his pleas of guilty and acknowledging the impact on the victim.

The sentence

5 The sentencing judge referred to the following aggravating and mitigating factors:-

“The aggravating factors in this case are: one, the seriousness of each of the offences in and of themselves: secondly, the serious breach of trust which took place between father and the abuse of his daughter: the ages of the accused at the time of this offence and the age of his daughter at the time of these offences.

The mitigation which the Court takes into account in this regard is: the accused's plea of guilty which was noted to have been on the date of the trial; his previous good character before the Court, his own experience of abuse as a child as set out in the contents of the probation report; his alcohol addiction; his work history and his achievements.”

6 In respect of Counts 1 and 4 relating to touching of the vagina, the sentencing judge identified a headline sentence of four years, in respect of Counts 6 and 8 relating to digital penetration a headline sentence of six years was identified and in respect of Count 11 relating to the forcing the complainant to touch his penis, a headline sentence of five years was identified. Taking into account mitigation, sentences for Counts 1 and 4 were reduced to three years, for Counts 6 and 8, the sentences were reduced to four and a half years and four years for Count 11. The sentences for Counts 1, 4, 6 and 11 were to run concurrently with Count 8 to run consecutively to Count 6, thus leaving an aggregate sentence of nine years' imprisonment.

7 The Court noted that it had to take into account proportionality and totality and the sentencing judge stated that the consecutive element of the sentence was required in this case to reflect the level of sustained and serious abuse perpetrated by the appellant against his vulnerable young daughter. In order to facilitate rehabilitation the sentencing judge suspended the final twelve months of the sentence, leaving a total sentence of eight years' imprisonment.

Grounds of appeal

8 The appellant puts forward the following grounds of appeal:-

(1) The learned Sentencing Judge erred in proceeding to sentence the appellant in the absence of a plea in mitigation:

(2) The overall sentence imposed on the appellant was disproportionate in light of the totality principle;

(3) The Learned Sentencing Judge gave inadequate credit for the numerous mitigating factors in the case;

(4) The comparators referred to do not demonstrate that the sentence imposed was within sentencing norms having regard to the particular circumstances of the offences and the appellant.

Submissions of the appellant

9 The appellant submits that the sentencing judge erred in not affording the appellant an opportunity to offer a plea in mitigation after he signalled his intent to proceed without legal representation. The appellant submits that it is not necessary to speculate on the contents of a plea to consider whether its absence is significant as it forms an integral part of the sentencing process. Furthermore, it is submitted that it is not relevant that the sentencing judge carried out the sentence with scrupulous fairness to the appellant and that the omission was a mishap.

10 The appellant submits that the overall sentence in this case is excessive with regard to the totality principle. It is accepted that in circumstances...