DPP v Murray

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 03 November 2017
• Neutral Citation: [2017] IECA 292
• Docket Number: No. [240/2013]
• Court: Court of Appeal (Ireland)
• Date: 03 November 2017

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Michael Murray

Respondent

[2017] IECA 292

No. [240/2013]

THE COURT OF APPEAL

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

Facts: The appellant, the DPP, applied to the Court of Appeal seeking a review of sentences imposed on the respondent, Mr Murray, on 21st October, 2013 in the Central Criminal Court on grounds of undue leniency. The sentences in question were sentences of 15 years imprisonment on each of two counts of rape and lesser concurrent sentences backdated to 15th February, 2010. The sentences were imposed after a trial which resulted in convictions on counts of rape, s. 4 rape, sexual assault, false imprisonment and child abduction. The DPP submitted that the facts of the case were singular and the combination of those facts and what she referred to as the complete lack of mitigating factors meant that the sentence was unduly lenient.

Held by the Court that the case of DPP v Tiernan [1988] 1 IR 250 indicated that a sentence in the range of 20 to 21 years was appropriate absent mitigation. The Court held that the combination of the appalling nature of the offence, the accused's very significant prior record and the complete absence of mitigation meant that the sentence of 15 years imprisonment was inadequate to a significant extent. The Court felt that the passage of time since the sentence hearing in the Central Criminal Court and the fact that a sentence was being increased was not a particularly significant issue in this case. Nevertheless, the Court gave some limited recognition to the issue and did so by imposing a sentence marginally less than it would have imposed had it been sentencing at first instance.

The Court held that it would set aside the sentence of the Central Criminal Court and substitute a sentence of 19 years imprisonment for the sentence of 15 years to date from the same day as the sentence in the court below being 15th February, 2010.

Appeal allowed.

JUDGMENT of the Court delivered on the 3rd day of November 2017 by Mr. Justice Birmingham

1 This is an application brought by the Director of Public Prosecutions seeking to review on grounds of undue leniency sentences that were imposed on the respondent, Michael Murray, on 21st October, 2013 in the Central Criminal Court. The sentences in question were sentences of 15 years imprisonment on each of two counts of rape and lesser concurrent sentences backdated to 15th February, 2010. The sentences were imposed after a lengthy trial which lasted 24 days which resulted in convictions on counts of rape, s. 4 rape, sexual assault, false imprisonment and child abduction. The appellant appealed against his conviction and this Court, in a judgment delivered on 3rd March, 2017, dismissed that appeal. The Director of Public Prosecutions acknowledges that cases where it would seek to review a sentence of 15 years on the grounds of undue leniency are likely to be few and far between but submits that the facts of this case are singular and the combination of those facts and what she refers to as the complete lack of mitigating factors mean that the sentence was indeed unduly lenient.

2 The background to the case emerges in some detail from the judgment of this Court on the conviction appeal and the Court will not repeat what it said on that occasion. However, in summary it should be recalled that the trial and the convictions that resulted related to a period of approximately 13 hours spanning the afternoon of 12th February, 2010 into the early hours of the morning of 13th February, 2010. On that occasion, the complainant, a young Chinese mother who has been living in Ireland since 2001, was walking with her four year old son from his playschool in the Smithfield area of the city some time after 4 p.m. when she was lured into an apartment by the respondent on the pretext that there was a lady inside who was sick and needed help. Thereafter, the respondent locked the complainant and her son into the apartment and subjected her to an escalating and relentless ordeal of rape, attempted rape, sexual degradation and violence, drugging her, binding and gagging her and threatening to kill both her and her young son. The ordeal lasted through the night and until he left the apartment shortly before 5.30 a.m. on 13th February, leaving her tied up in the bath.

3 At an earlier stage, the respondent had left the apartment for a period in order to take the complainant's child to the Smithfield area by car and then deposit him alone on the street. This happened between 10 p.m. and 10.30 p.m. The complainant was left bound and gagged in the bath of the apartment while this was being done.

4 The case was fully contested and indeed the respondent put forward the defence that far from the complainant being unknown to him, that she was a prostitute who had been employed by him in an agency that he ran. However, he was convicted on all counts on the indictment by a unanimous jury.

5 The DPP contends that this was a case of particular, indeed singular gravity involving acts of abduction, not just against the victim of the sexual offences that followed but also a 4 year old child who was forced to witness some of the treatment that his mother was subjected to and was then abandoned in the city centre alone and unable to communicate. The period of abduction and false imprisonment was a lengthy one. The victim in the case was raped and assaulted in various ways on a continuous basis over a period of hours, violence was used and the assaults were accompanied by acts of sexual perversion. The appellant points to the drugging of the complainant and the threats to kill her child, as matters which are very unusual and mean that the case is one of very particular seriousness.

6 The respondent to this application, however, says that this request for a review is brought in the teeth of precedent and authority. He says that a sentence of 15 years imprisonment without any portion suspended is a very significant sentence. It is said that it is not a sentence that could be considered to be lenient, let alone is it one that could be viewed as a substantial departure from the norm or to be 'unduly' lenient. It is submitted that even if the sentence is considered to be lenient, and the respondent strongly denies that it is such, it is clearly not unduly lenient and that there was no error in principle by the...