DPP v M.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 03 July 2019 |
| Neutral Citation | [2019] IECA 180 |
| Docket Number | 58/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 03 July 2019 |
[2019] IECA 180
THE COURT OF APPEAL
Kennedy J.
Peart J.
Edwards J.
Kennedy J.
58/2017
Sentencing – Indecent assault – Error in principle – Appellant seeking to appeal against sentence – Whether the trial judge erred in law and in principle
Facts: The appellant, on the 2nd November 2017, was convicted of three counts of indecent assault in respect of two complainants. Concerning the first complainant, the sentencing judge imposed a sentence of six months’ imprisonment in respect of one count and a concurrent sentence of ten months’ imprisonment in respect of the second count. A consecutive sentence of ten months’ imprisonment concerning the indecent assault offence on the second complainant was imposed, giving an actual sentence of twenty months’ imprisonment. The appellant appealed to the Court of Appeal against sentence on the grounds that the trial judge erred in law and in principle in: (i) imposing consecutive sentences; (ii) giving insufficient weight to the health and age of the appellant; (iii) finding that the offences fell within the upper range of offending; and (iv) failing to identify a headline sentence.
Held by the Court that it found no error in principle.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against sentence. On the 2nd November 2017, the appellant was convicted of three counts of indecent assault in respect of two complainants, MW and DK, who were 15 years of age at the time of offending.
The appellant was a surgeon, who was employed in a hospital where he was appointed as a consultant from the year 1968 until his retirement in 1995. He also had a private clinic in the locality. The offences concerned the indecent assault of MW and DK in both the hospital and his private clinic between 1974-1976. There is one count concerning DK who attended the appellant in relation to an ingrown toenail and during the course of the medical examination the appellant touched and massaged his genitals. The remaining two counts relate to MW who was diagnosed with non-descended testes and hernias, requiring an operation in April 1975 when Mr. S. performed the surgery. He had a number of appointments thereafter post-surgery with M.S. in his private rooms. He gave evidence at trial of two occasions when M.S. massaged the base of his penis with his fingers and thumb for a considerable period of time. On the second occasion in order to bring the situation to a close, the witness said that he ejaculated.
In terms of aggravating factors, the sentencing judge referred to the breach of trust by the appellant who was seen as an esteemed senior doctor and particularly in relation to MW who knew the appellant through his family, the nature of the abuse, the age of the victims and the impact of the offending on the victims.
In terms of mitigating factors, the sentencing judge referred to the age of the appellant, his personal circumstances, his poor health, the references and testimonials handed into court, the age of the case, the absence of previous convictions, the appellant's long and productive career as a doctor and the effect on the appellant of being placed on the sex offenders register.
The judge then placed the offences in the upper range of the range of offending, the maximum sentence for each offence being two years” imprisonment. Concerning MW, the judge imposed a sentence of six months” imprisonment in respect of one count and a concurrent sentence of ten months” imprisonment in respect of the second count. A consecutive sentence of ten months” imprisonment concerning the indecent assault offence on DK was imposed, giving an actual sentence of twenty months” imprisonment.
The appellant was 85 years of age at the time of sentencing. He has no previous convictions. Medical reports were handed into the court during the course of sentence hearing which detailed his poor health. The appellant suffers from, inter alia, coronary heart disease, abnormal blood cholesterol, hypertension and chronic effort angina.
We now proceed to set out the grounds of appeal and then the submissions in summary of the appellant and the respondent: -
(i) The learned trial judge erred in law and in principle in imposing consecutive sentences.
(ii) The learned trial judge erred in law and in principle in giving insufficient weight to the health and age of the appellant.
(iii) The learned trial judge erred in law and in principle in finding that the offences fell within the upper range of offending.
(iv) The learned trial judge erred in law and in principle in failing to identify a headline sentence.
Mr Hartnett SC on behalf of the appellant submits that the trial judge erred in placing these offences at the upper range of offending given the actual...
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