DPP v M.C.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] IECA 252
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 158/2019

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent/Prosecutor

and

M.C.

Appellant/Defendant

[2022] IECA 252

Edwards J.

Kennedy J.

Ní Raifeartaigh J.

Court of Appeal Record Number: 158/2019

Bill No.: WXDP0035/2018

THE COURT OF APPEAL

CRIMINAL

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

Facts: The appellant, on the 13 May 2019, was convicted by a jury of three counts 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. On the 20 June 2019 he was sentenced to 6 years’ imprisonment on each count to run concurrently with the final 12 months of each sentence to be suspended on conditions. He was placed upon the Sex Offenders Register and was detained at Midlands Prison. He appealed to the Court of Appeal against conviction and sentence. His appeal against conviction was refused in a judgment of the Court ([2022] IECA 96). He submitted that the trial judge erred in setting a headline sentence of 7 years. He submitted that this placed the headline squarely in the mid-range of such offences, given that the maximum sentence is 14 years. He submitted that the offending behaviour should not have been deemed to fall within the mid-range; the offences involved one victim, a ten-month period, and involved the touching or rubbing of her private parts (both over and under clothing), as well as a request to touch his penis (over his clothing). It was accepted that this was serious offending, but nonetheless it was submitted that there were no further aggravating features. He therefore submitted that the offending should have been placed in the first instance in a lower category. It was accepted that there was dominion as a result of the age disparity, and the fact of the grandfather-granddaughter relationship, but it was submitted that other aggravating features were not present in this case. There was repeated offending, but, it was submitted, this did not amount to “habitual” offending. He also submitted that the trial judge paid insufficient regard to the appellant’s age (68 years), and the impact upon someone of that age of serving a prison sentence for the first time in his life, together with the absence of any prior convictions (or complaints); he was of past good character and had a solid employment record. During the oral hearing of the appeal, counsel referred to the fact that the appellant was from a relatively close-knit rural community and submitted that the effects of his conviction would follow him far beyond his sentence of imprisonment.

Held by the Court that while all sexual assaults are serious, nonetheless a differentiation must be made for the nature of the conduct involved. The Court noted that the offence of sexual assault covers a multitude of acts varying in seriousness, whether by reason of the acts involved or by reason of other circumstances connected with the offence. The Court was of the view that a headline sentence of 7 years was too severe, notwithstanding the fact that there were three offences over a period of time amounting to 10 months and that there were other aggravating factors such as the relationship between the parties, the grave breach of trust involved in the offending, the age of the victim, and the impact upon the victim. In view of this error, the Court proceeded to re-sentence the appellant.

The Court nominated a figure of 5 ½ years as the headline sentence and reduced that figure to 4 years to take account of the mitigating factors. Given the nature of the offending, the Court was of the view that it was also appropriate to order post-release supervision for a period of 2 years.

Appeal allowed.

Draft/ex tempore JUDGMENT of the Court delivered by Ms. Justice Ní Raifeartaigh on the 10 October 2022

1 . The appellant was convicted by a jury of three counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act, 2001. His appeal against conviction was previously refused in a judgment of this Court ( [2022] IECA 96) and this judgment concerns his appeal in respect of sentence.

2 . The indictment contained three counts of sexual assault: the first on a date unknown between the 1 July 2015 and the 30 September 2015; the second between the 1 October and the 31 December 2015; and the third between the 1 January 2016 and the 31 May 2016. The victim's 10th birthday fell in July 2016.

3 . The appellant was born in 1951 and is now aged approximately 71. The victim was born in 2006 and is now aged approximately 16. The appellant is the victim's paternal grandfather. The events in question took place during the period 2015/2016, i.e. when they were both 6–7 years younger than they are now.

4 . On occasion, the victim and one of her brothers used to stay overnight with the appellant and his wife (i.e. the victim's paternal grandparents) from time to time when her parents went to various social events. The victim alleged that the offending took place on some of those occasions.

5 . The victim was aged 12 at the time of the trial. Her evidence-in-chief consisted of a DVD recording of her interview by the Gardaí, which had been conducted by a specialist Garda interviewer. She was sworn in at the trial and cross-examined after the DVD was played. The following is a summary of the answers she gave during the specialist interview, which was video-recorded.

6 . The victim said that the appellant tickled her whenever she went to his house and that at night she would go to bed and in the morning he would say “do you want a back rub” and then he would give her a back rub, and then “he goes too far and he touches me in my places”. She said “he always he does it when granny is not there”. When asked to explain about the tickling, she says “he tickles me but then he goes too far and touches my places”. She said that she sits on a chair and then “he starts tickling me and then sometimes he rubs my places and then when my granny comes into the room, then he goes back to tickling”. When asked to explain what she meant by “my...