DPP v Meyer Hustveit

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 15 March 2016
• Neutral Citation: [2016] IECA 271
• Docket Number: 200CJA/15
• Court: Court of Appeal (Ireland)
• Date: 15 March 2016

IN THE MATTER OF AN APPLICATION PURSUANT TO

S. 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

MAGNUS MEYER HUSTVEIT

RESPONDENT

[2016] IECA 271

200CJA/15

THE COURT OF APPEAL

Sentencing – Sexual offences – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Meyer Hustveit, on the 13th July, 2015, was sentenced in the Central Criminal Court to seven years imprisonment, suspended on terms on a count of rape and a concurrent sentence of two years imprisonment also suspended, in respect of a count of sexual assault. The Court was invited to sentence on a "full facts basis" and was in fact dealing with several incidents of rape, perhaps up to ten in total, as well as frequent sexual assaults over a period of approximately seven months. The applicant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking a review of the sentence on grounds of undue leniency. In her application for review, the DPP made it clear that she was not challenging the seven year sentence as such, nor was she disputing that part of the sentence could be suspended, but what she took issue with was the fact that the sentence was suspended in its entirety.

Held by Birmingham J that there was scope for suspending a significant portion of the sentence. However, the Court could not agree that the case was so wholly exceptional as to permit an entirely non-custodial disposal; the case involved repeated offending over a significant period of time. In all the circumstances, notwithstanding the obvious care with which the judge in the Central Criminal Court approached his task, the Court was of the view that he erred in imposing an entirely non-custodial sentence and the Court accordingly set aside the sentence and imposed a sentence that was appropriate.

Birmingham J held that the headline sentence would remain, but instead of the sentence being suspended in its entirety all bar fifteen months of the sentence would be suspended.

Appeal allowed.

JUDGMENT of the Court delivered on the 15th day of March 2016 by Mr. Justice Birmingham

1 In this case the Director of Public Prosecutions, pursuant to s. 2 of the Criminal Justice Act 1993, seeks a review on grounds of undue leniency of a sentence imposed in the Central Criminal Court. The sentence sought to be reviewed, one imposed on the 13th July, 2015 was one of seven years imprisonment, suspended on terms on a count of rape and a concurrent sentence of two years imprisonment also suspended, in respect of a count of sexual assault. The Court was invited to sentence on a 'full facts basis' and was in fact dealing with several incidents of rape, perhaps up to ten in total as well as frequent sexual assaults over a period of approximately seven months.

2 The respondent, who was born on the 14th December, 1990 and was aged between 21 and 22 years at the time the offences were committed. met the injured party, Ms. Niamh Ní Dhomhnaill who was born on the 1st January, 1987 and was aged between 24 and 25 years at the time the offences were committed against her, socially and they started dating soon thereafter. By the end of September 2011, they had moved in together. They had, what was essentially a normal sex life together. One morning in or about Easter 2012, the injured party woke to discover that there was what appeared to be sperm on her. She had no recollection of having had any sexual contact that night, but the respondent, Mr. Hustveit confirmed to her that he had sex with her. It might be explained that in or around this time Ms. Ní Dhomhnaill was sleeping very heavily because of a medical condition relating to a low white blood cell count for which she was taking medication. There was a conversation between them after this incident and the victim made it very clear to the respondent that consent was the most important issue for her in this context.

3 Some days later on the 27th April, 2012, Ms. Ní Dhomhnaill was asleep once more and awoke having felt that she had been penetrated whether digitally or by the respondent's penis, she was unsure. She found the respondent in bed bedside her masturbating and watching pornography.

4 The victim left the respondent very briefly at that stage, but returned on the 29th April, 2012, apparently in an attempt to save the relationship. The parties had consensual sex at that stage. In a conversation that he had with the injured party, the respondent admitted to having had sex with her while she was sleeping on a number of occasions during the course of their relationship. The relationship then ended.

5 About a month later Ms. Ní Dhomhnaill sent him an email in which she asked him what he had done to her, why he had done it and how often he had done it. The accused replied in detail. It is significant that it is clear that in replying as he did that he was aware that he was providing evidence against himself in respect of possible criminal charges.

6 Given the significance of this exchange of emails to the plea in mitigation that was advanced on behalf of Mr. Hustveit it is convenient to quote from them at this stage. On the 27th May, 2012, Ms. Ní Dhomhnaill emailed Mr. Hustveit as follows:-

'Hey, I am finding all this really difficult to come to terms with. I still don't understand what it was you did, let alone why you did or how many times. Everyone has told me that it was rape, but I still can't put it together that you could do that to me repeatedly for almost a year. I need to understand what exactly you did and why so that I can try to get closure and forget about all of this and get on with my life'.

Mr. Hustveit responded as follows on the same day:

'It is really difficult, I am not sure I have come to terms with it myself. The only conclusion I can come to is that I did it for short term gratification. I convinced myself that it was a victimless crime because you were asleep. That is the only way I could do it without making the connection that I was hurting you. I know its stupid, but I didn't think it was. On some level, I must have realised that it was wrong, but I managed not to think about it. I would interpret the no's as either just subconscious reflex that didn't mean anything or just try to be more careful. I didn't want to hurt you. I just wanted to come. I didn't want to dominate you either. I think I also used the fact that I felt I wasn't allowed to watch porn or masturbate as an excuse on some level as well, that I had no other outlet other than to have sex with you. I mean one time I woke up and you yelling at me to stop masturbating when I was doing it in my sleep. I think that sort of thing had an effect on how I dealt with my sexuality. I tried to repress it for you, but it ended up that I just found another way. I am not trying to blame you in any of this. I am only trying to explain all the facts that must be part of it. It is in no way a complete picture but I think it goes some way to explaining it.'

7 At another stage in the email he addresses the question of the frequency of offending. He did so in these terms:

'As for how many times I did it, I am not sure. I would guess that the amount of times I penetrated you while you were asleep, it must be under ten times or somewhere around there. The amount of times I did anything from kiss you or feel you with my hands or penis would be several times a week. It felt like the same thing every time though. It was using your body for my own gratification without consideration of how it would affect you, because I assumed it wouldn't.'

He continued:

'We have to talk about the criminal aspect of it as well. Now I have written this, you have it in writing what I have done which means you can have me convicted. I hope you won't. There are only two important things at this point which is I will never do it again and that you recover from it. I don't think either is helped by my life being ruined. I care about your recovery on it so I did reply even though it leaves me vulnerable. It is of course up to you and you have the right to but I ask that you don't. If there is anything at all that you need clarified, I will do anything to help.'

8 When contacted by the gardaí, Mr. Hustveit provided his computer and was fully cooperative. When the computer was examined it emerged that Mr. Hustveit had been in contact with a friend and to that friend had expressed his deep remorse and shame for the activity in which he had been involved. Detective Sergeant McKenna, the member in charge of the investigation felt it appropriate to advise Mr. Hustveit as a foreign national to seek legal advice. Subsequently Mr. Hustveit attended at a garda station by arrangement in order to be interviewed.

9 Mr. Hustveit returned to Norway and while there was contacted by the gardaí and he agreed to return to Ireland voluntarily, without the necessity for any form of extradition proceedings, in order to be charged. He was charged on the 9th February, 2013 and was admitted to bail without objection. His bail terms permitted him to continue to reside in Norway and he returned to Ireland on each and every occasion when his presence was required for the court proceedings.

10 Mr. Hustveit entered a plea of guilty to count 1 in the indictment, a rape count on the 18th June, 2014, which was the date fixed for trial. The respondent had notified the applicant some five weeks previously, on the 13th May, 2014, that he intended to enter a plea. The prosecution's position was that was not an early plea, not a plea at the first opportunity, but that it was nonetheless a welcome plea. It seems that there had been an earlier offer to enter a plea to a single rape count, but that had not been acceptable to the Director of Public Prosecutions.

11 The...