DPP v M.O'D.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 21 October 2022 |
| Neutral Citation | [2022] IECA 259 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 3/2022 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2022] IECA 259
McCarthy J.
Kennedy J.
Donnelly J.
Record Number: 3/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered (ex tempore) on the 21st day of October 2022 by Ms. Justice Kennedy.
This is an application brought by the Director of Public Prosecutions pursuant to the provisions of section 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the 13th December 2021. The respondent entered signed pleas of guilty to 31 counts of sexual assault, 1 count of rape and 1 count of production of child pornography and confirmed those pleas on being sent forward to the Central Criminal Court. A sentence of seven years' imprisonment was imposed for the rape offence with the final two years suspended. Four years was imposed for the sexual assault offences occurring prior to the injured party turning 17 years old and three years for those offences occurring after she attained the age of 17 years.
The injured party is the respondent's daughter. The sexual offending began when she was 12 years of age and concluded when she was 18. The relationship between the injured party's mother and the respondent broke down before her birth.
The respondent initially gained access to the injured party via court-ordered access and this progressed to overnight weekend access at the respondent's residence.
The injured party identified her 12th birthday as the occasion of the first sexual assault. The respondent collected the injured party from her primary residence with her mother and during the course of the car journey he engaged her in a highly sexualised conversation where he asked her which pornography she liked to watch and he informed her that his preference was for “daddy-daughter” pornography. The respondent plied the injured party with alcohol and drugs and made her watch pornography.
Plying her with alcohol and controlled substances was a feature throughout the offending. The injured party recalled the respondent sexually assaulting her by grabbing her hips and grinding his crotch against her bottom while grunting. He sexually assaulted her again 10–15 minutes later, grabbing her by the waist and thigh and rubbed her thigh and bottom.
The injured party stated that this type of sexual offending was a constant feature of her fortnightly weekend access visits with the respondent.
When the injured party was 13 and attending a family wedding, the respondent became extremely intoxicated, the injured party's grandfather asked her to take the respondent to his room. On the way to the room, the respondent pushed her against a wall, groped her breasts, kissed her on the neck, attempted to bite her neck and told her that he could bend her over and rape her. Shortly thereafter, he grabbed her from behind and proceeded to grind his crotch against her bottom so that she could feel his erection. He told her in crude terms that he intended to have sexual intercourse with her. The injured party was too terrified to sleep on the same floor of the apartment as the respondent and so resorted to sleeping on a couch downstairs. She even climbed in and out of a window to use the toilet.
The background to the rape offence is to be found in that in December 2016, when she was 15, she was alone with the respondent at his residence and he again plied her with alcohol and drugs. She recalled that she became unconscious due to her level of intoxication and had in fact vomited in her bed and on her clothing. The respondent moved the injured party into an adjoining bedroom where he raped her while she was in a state of semi-consciousness. She described her father grunting and her leg dangling and hitting her father's leg as a result of the force he used while penetrating her. She described the pain and the bleeding; her vaginal area was wet with blood and blood clotted on her legs. She described how the following morning, the respondent told her that he had seen everything, that he had seen her naked and that she was moaning.
In a subsequent Garda interview, the respondent admitted to having recorded this incident on his mobile phone but that he later deleted it.
After the December 2016 incident, the respondent continued to sexually assault the injured party during her access visits by groping her breasts and bottom and at one point, touching her vagina through her underwear. The offending came to light in late 2019 when the injured party disclosed the offending to her family and subsequently in February 2020, a family member informed the Gardaí of the abuse and the investigation commenced. He had initially denied the allegations to family members. However, shortly thereafter, the respondent contacted the Gardaí and said that he had sexually assaulted his daughter and recorded it on his phone. He was arrested, detained, and interviewed and made admissions. When the respondent presented at the Garda Station, arrangements were in train to take a statement of complaint from the injured party.
The sentencing judge identified a headline sentence of twelve years' imprisonment in respect of the rape offence, this was reduced to seven years in light of the mitigating factors. Headline sentences of seven years' imprisonment were nominated for each of the sexual assaults occurring when the injured party was under 17 years of age, and these were each reduced to four years. Headline sentences of five years' imprisonment were nominated for each of the sexual assaults occurring after the injured party attained the age of 17 and these were each reduced to three years. A headline sentence of seven years was identified in respect of the production of child pornography offence, and this was reduced to three years.
The judge ordered the sentences imposed on the sexual assault and child pornography offences to run concurrently to the sentence imposed on the rape offence.
The judge identified the aggravating factors as the breach of trust, the age of the injured party, the frequent nature of the offending, the provision of drugs and alcohol by the respondent to the injured party when she was a minor and the impact of the offending on her.
In terms of mitigation, the judge had regard inter alia to the respondent's very early admission of guilt, his acknowledgement of the depravity of his actions, his entering into signed pleas of guilty before the District Court, his lack of previous convictions, his employment record and his assessment as being at a low risk of reoffending.
The Director relies on the following grounds:
“The learned sentencing Judge:-
1) Failed to fully appreciate the seriousness, gravity and duration of the offences as committed by the offender;
2) Departed in a significant way from the norm that would be reasonably expected in a case of this nature;
3) Failed to have sufficient regard to the deterrence aspect of the sentence;
4) Failed to have sufficient regard to the aggravating factors;
5) Attached too much weight to the mitigating factors;
6) In respect of the sentence imposed for the offences, failed to have sufficient regard to the particular character of the victim and/or the content of the victim impact statement and the effect the offending has had on her life.”
The Director submits that there was a failure to have sufficient regard to the aggravating features of the respondent's offending. Particular attention is drawn to the respondent's breach of the injured party's trust. It is said that the respondent took advantage of the injured party both through his position of power as her father and by virtue of the access arrangement where she was in his custody at the weekends without her mother or any other relative present. The respondent's introduction of alcohol and drugs into the offending and the persistence of conduct over five years are also cited as aggravating factors.
The Director takes issue with the sentence of seven years' imprisonment imposed for the rape offence. It is accepted that the...
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