DPP v McKenna
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 29 April 2019 |
| Neutral Citation | [2019] IECA 170 |
| Docket Number | Record No.271/18 |
| Court | Court of Appeal (Ireland) |
| Date | 29 April 2019 |
[2019] IECA 170
THE COURT OF APPEAL
Baker J.
Birmingham P.
Edwards J.
Baker J.
Record No.271/18
Sentencing – Sexual assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr McKenna, appealed to the Court of Appeal against severity of sentence. The sentence under appeal was one of two years’ imprisonment imposed on 12 October 2018, at the Circuit Court in Mayo in respect of a single count of sexual assault. The appellant pointed to a number of comparator cases to suggest that the sentence imposed was disproportionally and inappropriately severe. In particular, he referred to The People (DPP) v Stewart [2016] IECA 369 and The People (DPP) v Krol [2017] IECA 205. Counsel argued that insufficient weight was given to the mitigating factors. Counsel’s other argument concerned the fact that no part of the sentence was suspended and it was argued that this was an error in principle.
Held by the Court that the authorities suggested that case law on undue leniency appeals are not of particular use by way of a guide in severity appeals because the jurisdiction of the court is different in nature and more limited than the jurisdiction the court engages on a full sentence appeal, noting the judgments of The People (DPP) v Byrne [2017] IECA 97, The People (DPP) v McCormack [2000] 4 IR 356 and The People (DPP) v O'Donoghue [2006] IECCA 134. The Court held that a reduction of 50% from the headline sentence was appropriate, and perhaps even generous, in the light of the factors that weighed both ways. The Court could not identify an error in principle in the approach to the mitigating factors. The Court held that the trial judge correctly identified one material basis on which a sentence might be suspended in whole or in part, a desire for rehabilitation or a desire to encourage good behaviour in the future. In the Court’s view, the trial judge was correct that neither of those factors was engaged in this case. The Court noted that the trial judge took an approach to the structure of the sentencing and the mechanism by which he reflected the nature and seriousness of the offence and the various factors that weighed in favour of the applicant was to reduce the headline sentence by 50% and not to suspend any part of it. The Court held that he was entitled in his discretion to take this approach and it found no fault with his approach. The Court considered that the trial judge made no error of principle in the imposition of a custodial sentence.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against severity of sentence. The sentence under appeal is one of two years' imprisonment imposed on 12 October 2018, at the Circuit Court in Mayo in respect of a single count of sexual assault.
The background to the sentence is that the appellant stood trial charged with one count of sexual assault. The trial started on 6 February 2018, and a plea was entered following re-arraignment on 13 February 2018. The trial process had almost completed at that stage.
The events in respect of which Mr McKenna pleaded occurred on 25 July 2015 at a hotel complex in Castlebar. The appellant and the injured party were members of a group which, through various activities, raised funds for charity. On the occasion in question, eight members of the group had taken an apartment in the hotel apartment complex. A charity event took place, and afterwards, there was dinner and drinks in the hotel bar. There was evidence at trial that the appellant was quite drunk, whereas the injured party was described as ‘tipsy’ but lucid.
There were two bedrooms in the apartment and the plan was that one bedroom, which included a double bed and a single bed, would be occupied by the injured party and her husband who would take the double bed, and the single bed would be available for another identified member of the group. A second bedroom contained three single beds and the appellant and the other two men were to sleep in that room. The others were to sleep on the sofa.
Sometime after midnight, the injured party went to the bedroom and changed into her pyjamas. She briefly re-joined the group who were in the sitting room and spent a few minutes with them before going to bed. Sometime later the appellant got up, ostensibly to go to the toilet. His absence was then noted. The husband of the injured party tried to get into their bedroom but the door was locked. He was able to gain access to the bedroom through the bathroom. He then found the appellant in bed with his wife. The appellant's trousers and underpants were pulled down and his penis was visible. The appellant was ordered to leave the room. The injured party seemed dazed and confused. Her evidence at trial was that she was asleep during the events and that the accused had woken her.
The matter went to trial and in the course of trial the appellant asked to be re-arraigned. He did this after the injured party...
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