DPP v M.L.

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 18 June 2015
• Neutral Citation: [2015] IECA 144
• Court: Court of Appeal (Ireland)
• Docket Number: 146CJA/13
• Date: 18 June 2015

The People at the Suit of the Director of Public Prosecutions

Applicant

and

M.L.

Respondent

[2015] IECA 144

146CJA/13

THE COURT OF APPEAL

Criminal Law – s. 2 of the Criminal Justice Act 1993 – Sexual Assault – Sentencing – Undue Leniency – Principle of Totality

Facts: The Director of Public Prosecutions applied for a review of a sentence imposed on the respondent pursuant to s. 2 of the Criminal Justice Act 1993 on the ground of undue leniency. The respondent was found guilty by majority verdict of 60 counts of sexual assault against six sisters over a period of ten years. The respondent was sentenced to four years imprisonment with the final twelve months suspended in relation to 37 counts. In relation to 23 counts the respondent was sentenced to seven years imprisonment with the final two years suspended for a period of five years on the condition that he undergo a sex offenders treatment programme in prison. The sentencing judge also imposed a two-year post release supervision order. The Director of Public Prosecution argued that the sentencing judge failed to have adequate regard to the gravity of the offences, the length of the offending period, the frequency of the offences, the number of victims and the breach of trust. The respondent contended that the sentencing judge imposed a proportionate sentence that also sought to incentivise his rehabilitation.

Held by Sheehan J: The court applied the principle of totality to assess whether the overall sentence was appropriate having regard to the offender”s overall criminal behaviour. The question for the court was whether the overall sentence of seven years imprisonment for offences carrying a maximum sentence of fourteen years imprisonment was unduly lenient given the aggravating factors? The court concluded that the starting point constituted an error in principle. It determined that the sentence was unduly lenient, as insufficient weight had been given to the aggravating factors.

Judgment of the Court delivered on the 18th day of June 2015 by Mr. Justice Sheehan

1.1 This is an application by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the respondent in the Dublin Circuit Criminal Court on the 31st May, 2013, on the ground of undue leniency.

1.2 Following an eighteen day trial which concluded in November 2012, the respondent was found guilty by majority verdict on 60 counts of sexual assault against six sisters over a period in excess of ten years between 1994 and 2005. Apart from one offence which occurred in the respondent's car, all the other offences occurred in the family home.

1.3 In respect of 37 counts for which the maximum sentence is five years imprisonment pursuant to s.2 of the Criminal Law (Amendment) Act 1990, the respondent was sentenced to four years imprisonment with the final twelve months suspended. In respect of 23 counts for which the maximum sentence is fourteen years imprisonment pursuant to s.2 of the Criminal Law (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001, the respondent was sentenced to seven years imprisonment with the final two years suspended for a period of five years on condition that he undergo a sex offenders treatment programme while in prison. The sentencing judge also imposed a two-year post release supervision order directing the respondent to comply with all directions of the Probation Service. The Sex Offenders Act of 2001 came into force on the 27th September 2001 by virtue of Statutory Instrument 426/2001 and provides for a sentence of fourteen years imprisonment for a sexual assault on a child after that date.

1.4 It was submitted by the applicant that the sentence imposed was unduly lenient for a number of reasons. Amongst the reasons advanced by counsel for the Director of Public Prosecutions was that the sentencing judge failed to have any adequate regard to the gravity of the offences herein particularly in respect of the gravity of the conduct in question, the length of the offending period, the frequency of the offences, the number of victims and the breach of trust on the part of the respondent at the time of the commission of the offences. It was also submitted that the sentencing judge failed to have any adequate regard to the effect of the offences on the victims and failed to identify what, if anything, he considered to be a mitigating factor.

1.5 Both the applicant and the respondent filed detailed written submissions in the course of which both parties referred this Court to previous sentencing judgments as relevant comparators in support of their respective positions.

1.6 In succinct oral submissions, counsel on behalf of the Director of Public Prosecutions submitted that the respondent had taken advantage of and seriously abused a vulnerable family over a period of ten years. Counsel submitted that while the Director of Public Prosecutions was not advocating consecutive sentences, the sentence imposed by the trial judge amounted to an error in principle in light of the aggravating factors in this case. It was contended that the sentencing judge had manifestly failed to give adequate weight to the aggravating factors in the case including the devastating impact the offender's behaviour had on the victims. This latter point was identified by the sentencing judge in the course of imposing sentence.

1.7 Counsel for the Director of Public Prosecutions submitted that the sentencing judge failed to consider the principles of general deterrence and retribution and placed reliance upon the case law some of which included:- The People at the Suit of the Director of Public Prosecutions v M.S. [2002] 2 I.R. 592; The People at the Suit of the Director of Public Prosecutions v James O'Reilly [2008] 3 I.R. 632; The People at the Suit of the Director of Public Prosecutions v Black [2009] I.E.C.C.A. 91. Counsel also placed a number of comparators relating to sentencing before this Court including the following cases:—The People at the Suit of the Director of Public Prosecutions v Lyons [2014] 7 J.I.C. 3111, The People at the Suit of the Director of Public Prosecutions v O'Regan (Unreported, Court of Criminal Appeal, Kearns J., 20th October, 2008), The People at the Suit of the Director of Public Prosecutions v. Keane [2008] 3 I.R. 177

1.8 Counsel for the respondent contended that the sentencing judge had imposed a substantial sentence on the respondent which was proportionate and which also sought to incentivise the rehabilitation of the respondent attaching onerous terms to the suspended part of the sentence. Counsel for the respondent further submitted that in light of the comparators furnished by him the sentence imposed was not unduly lenient and placed reliance upon the following cases:- The People at the Suit of the Director of Public Prosecutions v McKenna [2002] 2 I.R. 345; The People at the Suit of the Director of Public Prosecutions v. McC [2003] 3 I.R. 609. Counsel for the respondent submitted that the sentencing court was correct in pursuing the penal aim of rehabilitation and in this regard placed reliance upon the decision of The People at the Suit of the Director of Public Prosecutions v Conroy (No.2) [1989] 1 I.R. 160, The People at the Suit of the Director of Public Prosecutions v P.H. [2007] I.E.H.C. 335.

In order to consider these submissions it is necessary to set out the background to the offence.

[2] Background

2.1 The victims in this case were six sisters whom the respondent had sexually abused over a period of 10 years when he lived in their family home as their mother's partner from in or about 1994 when the youngest complainant was then six months old until in or about May 2005. When the respondent originally moved into the family home seven sisters were living there. According to their mother's evidence, the sexual relationship between herself...