DPP v M.W.
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 21 September 2020 |
| Neutral Citation | [2020] IECA 272 |
| Docket Number | Record Number: 219/19 |
| Date | 21 September 2020 |
[2020] IECA 272
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 219/19
THE COURT OF APPEAL
Sentencing – Sexual assault – Mitigation – Appellant seeking to appeal against sentence – Whether insufficient discount was afforded for mitigating factors
Facts: The appellant pleaded guilty to six counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and on the 22nd October 2019 he received a sentence of five years’ imprisonment with the final year suspended on terms. He appealed to the Court of Appeal against sentence. Mr Dockery SC for the appellant identified two primary issues on appeal. First, he took issue with the headline sentence and second, said that insufficient discount was afforded for mitigating factors.
Held by the Court that the judge erred in principle in failing to consider the appellant’s youth at the time of offending; of particular concern was the distinct possibility that the offending occurred when the appellant was eighteen years old and continued for a period of months and not years as originally stated on the indictment. The Court held that his youth operated as an extenuating factor bearing on his moral culpability and as a result impacted on the headline sentence. In those circumstances, the Court found that the judge erred in principle in placing the headline or pre-mitigation sentence as one of six years and as a consequence, the Court quashed the sentence imposed.
The Court held that the appropriate headline sentence was one of five years’ imprisonment. The Court was not persuaded that the judge erred in the discount he afforded for mitigation. The Court observed in this respect that the plea was entered at a very late stage. Therefore, the Court reduced the sentence of five years to one of four years and suspended the final year on the condition that the appellant be of good behaviour for a period of three years in the sum of €100.00. The Court saw from the probation report that the appellant agreed to move from his home beside the victim and so the Court also imposed two additional conditions; that he comply with all directions of the probation services and that he shall reside other than next door to the victim. The Court held that the bond was to be entered before the Governor or the Assistant Governor of the prison. The Court imposed two years post-release supervision during which period the appellant would be required to attend the appropriate therapeutic service as directed by the probation service.
Appeal allowed.
This is an appeal against sentence. The appellant pleaded guilty to six counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and on the 22 nd October 2019 he received a sentence of five years' imprisonment with the final year suspended on terms.
The period covered by the indictment ranges from the 1st of January 2006 until the 31st of December 2010 and refers to a series of sexual assaults perpetrated by the appellant against his younger female cousin who lived beside him. During the period referred to on the indictment the appellant were aged between seventeen to twenty-two years and the victim aged between six to eleven respectively. The assaults involved the appellant pulling down the complainant's trousers and underwear from behind and rubbing and pressing her vagina as he masturbated himself. The assaults took place at various locations around the appellant's family home including his bedroom, the sitting room of his house, the shed, in the nearby woods, and in his car.
The offences came to light in October 2016 when the complainant disclosed the abuse to her sister. The appellant was arrested in August 2017 and subsequently interviewed. He made no admissions at that time. The matter came on for trial before the Court on the 9th of July 2019 and a jury was empanelled. The next day the appellant was rearraigned and pleaded guilty to all six counts on the indictment.
At the sentence hearing the Court heard that the appellant has no previous convictions. A psychological report was handed into the Court which detailed that the appellant displayed limited insight into his offending behaviour. The appellant was assessed as having limited abilities in terms of his intellectual functioning and he was identified as being at a moderate risk of re-offending.
In terms of sentencing, the sentencing judge emphasised the impact of the offending on the complainant which was aggravated by the stress of the forthcoming trial, the social impact that it had on her and her family and extended family, the proximity of the relationship and the fact that they were living next door to each other, and by the maintenance of the appellant of his innocence until the trial had begun. In view of the aggravating factors the sentencing judge placed the offending at the low end of the mid-range and identified a headline sentence of six years.
In terms of mitigating factors, the sentencing judge referred to the guilty plea although due to the fact that the plea was entered at a late stage, the discount afforded was limited to 10%. The judge further referred to the psychological report and observed that it indicated a lack of insight and empathy for his victim. The sentencing judge reduced the sentence to five years on each count to run concurrently, with the final year suspended with the imposition of post-release supervision by probation and welfare for a period of two years.
The appellant puts forward the following grounds of appeal:-
(a) In all the circumstances, the sentence imposed was excessive, including in identifying six years as the appropriate headline or starting point and in reducing that sentence by only one year and in declining to suspend more than one year of same and the learned Trial Judge erred in law in imposing same;
(b) That the learned sentencing judge erred in setting the headline sentence at too high a level in that he deemed same to be at the mid-range of offending rather than at the low range of offending as submitted by Defence counsel on behalf of the Appellant and thereby imposed a sentence on the Appellant that was excessive in all the circumstances:
(c) That the learned sentencing judge failed to have regard to the fact that the Appellant may, on the evidence, have been under the age of 18 years during some or all of the period of offending complained of herein;
(d) That the learned sentencing judge failed to have regard to the young age of the Appellant during the period of offending herein;
(e) That the learned sentencing judge failed to take account of and/or have regard to the fact that the Appellant had no prior convictions on the date of sentencing;
(f) That the learned sentencing judge failed to have regard to the fact that the Appellant was himself the victim of sexual abuse during his own childhood and the impact which same had on him;
(g) The learned sentencing judge erred in failing to take into account adequately or at all many of the mitigating features of the case:
(h) That the learned sentencing judge erred in deeming that the trial had commenced in circumstances where, while a jury had been empanelled, the case had not been opened to them and the learned sentencing judge further erred in deeming the change of plea on the part of the Appellant, after the trial had commenced, as being an aggravating factor: (i) That the learned sentencing judge erred in interpreting the expert professional psychological report placed before the court for the purposes of sentencing as being indicative of a lack of empathy on the part of the Appellant with the victim and more representative of the guilt and shame felt by the Appellant over how the index offending impacted upon him and his family when such interpretation could not fairly be adopted from the report as placed before the court: (j) That the learned sentencing judge erred in passing an excessive sentence having regard to all the circumstances of the case and thereby failing to have adequate regard to the principles of proportionality and totality in imposing the said sentence;
In written submissions the appellant groups the grounds into three distinct headings and these headings are laid out below.
Proportionality and totality- Grounds (a), (b) & (j)
The appellant submits that in circumstances where the maximum sentence available was fourteen years, the headline sentence of six years was too high to reflect the lower end of the midrange and a headline sentence of no more than five years would have been appropriate.
The appellant refers to the following sentencing remarks of the sentencing judge:-
“The impact was aggravated in the recent time by obviously the stress of the forthcoming trial, the social impact that it had on her and her family and extended family, the proximity of the relationship and the fact that they were basically living next door to each other, and by the maintenance of the accused of his innocence until the trial had begun”
The appellant submits that these remarks indicate that the late plea of guilty was treated as an aggravating factor. The appellant refers to O'Malley on Sentencing Law and Practice (3rd Ed., Round Hall, 2016) at para 6-32:-
“Defendants who plead guilty despite having initially opted for jury trial should not be penalised on that account, even if a jury panel had been summoned by the time the guilty plea was entered.”
The appellant argues that the sentencing judge did not give sufficient value to the plea of guilty, giving a deduction of 10% or seven months in circumstances...
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