DPP v Mullan

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 19 June 2017
• Neutral Citation: [2017] IECA 188
• Docket Number: Record No. 328/2016
• Court: Court of Appeal (Ireland)
• Date: 19 June 2017

[2017] IECA 188

THE COURT OF APPEAL

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Record No. 328/2016

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

DANIEL MULLAN

APPELLANT

Sentencing – Sexual offences – Mitigating factors – Appellant seeking to appeal against sentence – Whether sentencing judge failed to consider the mitigating factors

Facts: The appellant, Mr Mullan, pleaded guilty and was convicted at Castlebar Circuit Criminal Court on the 22nd October 2015 to five counts of sexual offences, namely two of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, two of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act 1998 and one of attempted buggery of a person under seventeen years of age contrary to Common Law and s. 3 of the Criminal Law (Offences) Act 1993. Sentencing was imposed on the 14th June 2016. In respect of three of the counts, being one of sexual assault and two of possession of child pornography, sentences of three years were imposed in respect of each, and in relation to the attempted buggery count, a sentence of twenty months imprisonment was imposed. In respect of the second count of sexual assault a sentence of eight years and six months imprisonment was imposed. All sentences were directed to be served concurrently. The appellant appealed to the Court of Appeal against the eight and a half year sentence on the following grounds: (i) a failure to identify the location of the offence on the scale of gravity; (ii) placing excessive weight on aggravating factors; (iii) a failure or refusal to consider a suspended sentence; (iv) a failure to consider the mitigating factors, and in particular the appellant’s age, health and previous and subsequent good character.

Held by the Court that the offending fell into the higher end of the gravity scale, albeit at the lower end of that category. In the Court’s view, the appropriate headline sentence was one of nine years rather than the eleven and a half years imposed. The Court held that the sentencing judge did not adequately provide for the mitigating factors in sentencing the appellant by his decision to only discount approximately 25% of his headline sentence.

The Court held that, having taken account of the various mitigating factors and particularly the appellant’s age and his poor health, it would impose a custodial sentence of five years imprisonment, back dated as directed in the court below.

Appeal allowed.

JUDGMENT (ex tempore) of the Court delivered on the 19th day of June 2017 by Mr. Justice Mahon

1 The appellant pleaded guilty and was convicted at Castlebar Circuit Criminal Court on the 22nd October 2015 to five counts of sexual offences, namely two of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, two of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act 1998 and one of attempted buggery of a person under seventeen years of age contrary to Common Law and s. 3 of the Criminal Law (Offences) Act 1993.

2 Sentencing was imposed on the 14th June 2016. In respect of three of the counts, (being one of sexual assault and two of possession of child pornography), sentences of three years were imposed in respect of each, and in relation to the attempted buggery count, a sentence of twenty months imprisonment was imposed. In respect of the second count of sexual assault a sentence of eight years and six months imprisonment was imposed. It is this eight and a half year sentence that has been appealed. All sentences were directed to be served concurrently.

3 The appellant is a seventy eight year old resident of the U.S. who regularly visited Ireland on vacation over a number of years. He has no previous convictions. He became friendly with the complainant's family in 1995 when the complainant was about seven years old. In the year 2000, the appellant sought and received permission from the complainant's father to take the complainant, who was then twelve years old, to a swimming pool facility in the hotel in which he was staying, and which was not far from the complainant's home. On that occasion, while the complainant was getting changed in the swimming pool changing room he was subjected to a relatively minor sexual assault by the appellant.

4 In the following summer, in 2001, the complainant was again taken by the appellant to the same hotel again, on the pretext of being taken swimming. He was brought to the appellant's hotel bedroom where he was sexually assaulted and photographed. The assaults on this occasion were of a significantly more serious nature than that which had occurred in the previous year. He was paid IR£10 by the appellant to expose himself and allow himself be photographed. In the summer of the following year, 2002, the complainant was again taken to the appellant's bedroom in the same hotel. Prior to this meeting there had been telephone conversations between the complainant and the appellant about sexual matters, including the use of vibrators. On this visit to the appellant's bedroom in the hotel, the appellant invited the complainant to watch pornography. On this occasion he was digitally anally penetrated by the...