DPP v M.S.

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 09 December 2014
• Neutral Citation: [2014] IECA 58
• Docket Number: 85/14
• Court: Court of Appeal (Ireland)
• Date: 09 December 2014

The People at the Suit of the Director of Public Prosecutions

Respondent

V

M.S.

Appellant

[2014] IECA 58

85/14

THE COURT OF APPEAL

Sentencing – Sexual assault – Proportionality – Appellant seeking to appeal against sentence – Whether sentence was wholly disproportionate

Facts: The appellant, on the 24th January, 2014, was convicted of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, and was sentenced to three years imprisonment with the final six months of the said sentence suspended for a period of three years on condition that he remain under supervision of the Probation Service for that period of time. The appellant appealed to the Court of Appeal against sentence, submitting that the sentence was wholly disproportionate and that the trial judge erred in principle in failing to adequately align the sentence to the particular circumstances of the accused and to the nature and circumstances of the assault itself. It was also submitted that the trial judge failed to give full and proper weight to all the relevant mitigating factors. The respondent, the DPP, contended that the trial judge did not make any significant departure from what would be the appropriate sentence in a case such as this particularly in light of the age difference between the parties, the breach of trust involved the nature of the assault, the consumption of alcohol and the psychological effect on the victim. The respondent submitted that in this case there was no error in principle.

Held by the Court that the appellant, by going to trial in the manner in which he did, forfeited what the Court regards as a significant mitigating factor in this type of case, namely the plea of guilty. The Court concluded that there was an error of principle made by the trial judge in identifying three years as the appropriate sentence in this case; while the Court acknowledged that all sexual offences are serious, it was nevertheless the Court’s function and obligation to distinguish between different cases and different circumstances. The Court held that the factor in this case which was of relevance to where the offence ought to lie was the fact that the offence was of very short duration and the appellant touched the victim on the outside of her clothes.

The Court held that they identified two years imprisonment as the appropriate starting point. In view of the mitigating factors acknowledged by the trial judge, the Court suspended the final six months of that sentence provided the appellant enter into a bond to keep the peace and be of good behaviour for a period of twelve months following his release from prison. In considering whether or not to make a post release supervision order, the Court, apart from noting that the victim in this case was fifteen years old at the time, also noted that the appellant admitted his involvement at a very late stage; failure to do so at an earlier stage gave the Court concern about the appellant’s insight into his own offending. Accordingly, in addition, the Court directed that the appellant be subject of a one year post release supervision order on the usual terms.

Appeal allowed.

Judgment of the Court (ex tempore) delivered on the 9th day of December, 2014, by Mr. Justice Sheehan

Mr. Justice Sheehan

1 This is an appeal against sentence

2 On the 24th January, 2014, the appellant MS was convicted of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended, and was sentenced to three years imprisonment with the final six months of the said sentence suspended for a period of three years...