DPP v McGinty

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice McCarthy
• Judgment Date: 30 January 2019
• Neutral Citation: [2019] IECA 27
• Docket Number: Record Number: CCACJ0116/2018
• Date: 30 January 2019

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

STEVEN McGINTY

RESPONDENT

[2019] IECA 27

Record Number: CCACJ0116/2018

THE COURT OF APPEAL

Sentencing – Possession of child pornography – Undue leniency – Applicant seeking a review of sentence – Whether sentence was unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal for a review on grounds of undue leniency of two sentences imposed by the Circuit Court on the 15th March 2018 of eighteen months’ imprisonment on a count of possession of child pornography contrary to s. 6 of the Child Trafficking and Pornography Act 1998 and two and a half years on a count of distribution of child pornography contrary to s. 5(1) of the same Act. The sentences were to run concurrently and were suspended in their entirety for a period of eighteen months inter alia on a term to the effect that the respondent, Mr McGinty, should place himself under the supervision of the Probation and Welfare Service. The Director’s grounds of appeal were as follows: (1) the sentence imposed was unduly lenient and amounted to a substantial departure from an appropriate sentence in all the circumstances of the case; and (2) the sentencing judge failed to impose a penalty that adequately reflected the principle of general deterrence.

Held by the Court that sentencing judges must be afforded a margin of appreciation and only when that margin has been exceeded should an appellate court intervene. The Court held that, in this case, the decision to suspend fell at the very outer limit of the margin, but the Court had not been persuaded that it fell outside the range.

The Court held that the application would be refused.

Application refused.

Judgment of the Court delivered on the 30th day of January, 2019 by Mr. Justice McCarthy

1 This is an application for a review on grounds of undue leniency of two sentences imposed by the Circuit Court on the 15th March 2018 of eighteen months” imprisonment on a count of possession of child pornography contrary to s. 6 of the Child Trafficking and Pornography Act 1998 and two and a half years on a count of distribution of child pornography contrary to s. 5(1) of the same Act. The sentences were to run concurrently and were suspended in their entirety for a period of eighteen months inter alia on a term to the effect that the Respondent should place himself under the supervision of the Probation and Welfare Service. He had pleaded guilty at the first available opportunity. His name was entered in the Sex Offenders Register.

2 The accused was identified in October 2013 as an online participant in a chat room and an investigation commenced; the gardai searched his home on the 24th of October under warrant. Amongst the items seized were two laptop computers, a Dell and a Toshiba. Between them they contained a total of 260 images and 4 video files which had been shared from the devices on a number of ocassions from May 2007 to April 2008. The Dell contained 148 of the images, 82 of which involved children under the age of seventeen engaged in oral or penetrative sexual activity. Twenty of these, in turn, involved pre-adolescent girls. The remaining images on that computer were pictures of boys and girls with exposed genital areas. The video files also found on it showed girls under seventeen stripping and performing sexual acts. A fifth video which had been deleted had a title suggestive of pornographic images of a seven-year old child. The Toshiba had 112 images, 25 of which were of pre-adolescent girls engaged in oral sex with adult males; three of these involved infants The remaining 85 images were of the exposed genitalia of girls under the age of seventeen. Forensic analysis showed that a number of the images had been shared on occasions between August 2012 and January 2013. Further, two Skype chats were recorded and these were of a sexual nature. For their purpose the respondent adopted the user name of ‘Dadlovesdaughter’ and the name ‘Daddyloveskaty’ to distribute the images. In these messages the respondent discussed his own sexual experience with someone who appeared to be a thirteen-year old child and enquired of another child of apparently fourteen years as to the sexual acts in which they would engage if they met. In the latter the respondent also made a request to have sex with the child's nine-year old sister.

3 On the day after the seizure the respondent and his wife attended at Swords Garda Station and he made full admissions to the offences. He described the nature of the messages. He told the gardai that he wanted to get help, that he hated himself. He provided details in respect of the laptops including passwords whereby the offending material could be found. Subsequently he was interviewed on the 4th November 2013 when he made further extensive admissions to the effect that he had been engaged in the use of child pornography for a number of years. He was described as co-operative with gardai.

4 Unfortunately, the laptops seized were not examined until October 2015 due to lack of garda resources. Following their examination, but only in April 2017, this prosecution was commenced. It appears clear that at all times the accused intended to plead guilty. His remorse appears to be genuine.

5 The accused is described as being ‘proactive’ in the manner in which he sought therapy to address his interest in such pornography from March 2014 extending to June 2017 as appears from a report furnished by an organisation called ‘Forensic Psychological Services’. Two psychiatrists” reports were also furnished to the sentencing judge: from them it is apparent that he was a patient of the mental health services between 2005 and 2009 and again between 2011 and 2015. Those issues were anxiety disorder, panic disorder, agoraphobia and depression: he received medication and it appears that during the first period he was on sick leave from his work. He had retained, at the time of sentence, the support of the family and still does so. Whilst his conduct attracted the attention of the Child and Family Support Agency, Tusla, he continues to live in his home with his wife and young child to whom he has access under his wife's supervision; Tusla has a continuing engagement with the family. Due to the nature of the offences he lost his career as a nurse – he had an impressive work history. He is 45 years old and has no previous convictions. It was conceived at the sentencing hearing that he would lose his job as a nurse (he had been suspended after these matters came to light) and we proceed upon the basis that this loss of career has occurred. The sentencing judge also had the benefit of a comprehensive and favourable probation report. The evidence is that the risk of re-offending is low. He has no previous convictions but as with all the so-called ‘secret crimes’ of a sexual nature any criminality other than the sexual offences which are the subject of charges are rare. The accused's co-operation must, of course have been valuable to the Gardaí but nonetheless it was felt necessary for the purpose of the proper investigation of the offence to obtain expert analysis of the contents of the computers.

6 The Director's grounds of appeal are as follows:

(1) The sentence imposed was unduly lenient and amounted to a substantial departure from an appropriate...