DPP v Nevin

JurisdictionIreland
JudgeMs. Justice Kennedy
Judgment Date31 July 2020
Neutral Citation[2020] IECA 269
Docket NumberRecord Number: 163CJA/19 & 150/19
CourtCourt of Appeal (Ireland)
Date31 July 2020
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT/RESPONDENT
-AND-
PATRICK NEVIN
RESPONDENT/APPELLANT

[2020] IECA 269

Birmingham P.

Kennedy J.

Ní Raifeartaigh J.

Record Number: 163CJA/19 & 150/19

THE COURT OF APPEAL

Sentencing – Rape – Undue leniency – Respondent seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, Mr Nevin, on the 24th June 2019, was sentenced in respect of a count of rape and a count of sexual assault. He received a sentence of fourteen years’ imprisonment on the rape offence and eight years on the sexual assault offence with the final two years suspended on terms. The sentences were imposed on a concurrent basis. He lodged an appeal against severity of sentence, and in turn, the respondent, the Director of Public Prosecutions (DPP), sought to review the sentence imposed on grounds of undue leniency.

Held by the Court of Appeal that the judge erred in identifying the pre-mitigation sentence of fifteen years on the rape offence. The Court concluded that the net sentence of twelve years for both offences was simply too low and did not adequately reflect the gravity of the offending conduct. The Court believed that the nominated headline sentence was inadequate and the net sentence of fourteen years with two years suspended was simply too low. The Court believed that the accused’ offending conduct would have been best met in the circumstances by consecutive sentences. The Court found that a proportionate sentence may be achieved by either concurrent or consecutive sentences but having opted for the concurrent approach it was persuaded that the judge erred in the overall sentence she imposed. In those circumstances, the Court was persuaded that the overall sentence was unduly lenient and thus was a substantial departure from the appropriate sentence. The Court proceeded to re-sentence Mr Nevin.

The Court quashed the sentences imposed and substituted a post-mitigation sentence of ten years’ imprisonment on the rape offence. It reduced this sentence in circumstances where the judge imposed a higher sentence on this offence due to the fact that she imposed the sentences on a concurrent basis. The Court would not intervene in the post-mitigation sentence of eight years on the sexual assault count. The sentences were imposed on a consecutive basis, resulting in an indicative sentence of eighteen years’ imprisonment. The Court adjusted the sentence in light of the totality principle to ensure a proportionate sentence and to incentivise rehabilitation and in order to do so, it suspended the final three and a half years of the sentence. Cognisant of the fact that the sentence imposed by the sentencing judge on the rape offence was higher than if this were a stand-alone offence, the Court applied a greater reduction than might otherwise be appropriate for the rape offence. The sentence was therefore increased from a net sentence of twelve years to one of fourteen and a half years. The Court backdated the rape sentence to the 12th June 2015. The final three and a half years were suspended on the accused entering into a bond before the Governor or Assistant Governor of the prison, in the sum of €100.00 to be of good behaviour for a period of five years and on the condition that he remain under probation supervision for that time and comply with all directions from that service. The Court held that the post release supervision order was to remain as imposed by the court below and the accused was subject to the sex offenders register.

Appeal allowed.

JUDGMENT of the Court ( ex tempore) delivered on the 31st day of July 2020 by Ms. Justice Kennedy .
1

On the 24 th June 2019, the accused was sentenced in respect of a count of rape and a count of sexual assault. The accused received a sentence of fourteen years' imprisonment on the rape offence and eight years on the sexual assault offence with the final two years suspended on terms. The sentences were imposed on a concurrent basis. The accused lodged an appeal against sentence, and in turn, the Director of Public Prosecutions has sought to review the sentence imposed on grounds of undue leniency.

Background
2

The offences in question occurred within four days of each other in respect of two different complainants.

3

In respect of RB, the parties had made contact on Tinder and arranged to meet up on the 12 th July 2014. The accused picked the complainant up from her address in his car and they went for a drive. The accused then stopped the car down a narrow country road with a graveyard at the end of it. The accused mentioned the IRA and Dundalk and said he was known in Dundalk but not in a good way. He said, “Don't worry, I'm not going to kill you here”. He stopped the car and immediately put his seat and then her seat back. Some consensual kissing occurred and he then pulled down his trousers requesting oral sex and started to pull her trousers down. She said everything was happening very quickly and she performed oral sex and then matters became non-consensual when he digitally penetrated her. then raped her and digitally penetrated her again and then masturbated and ejaculated on her. He did not use a condom. RB described being numb, afraid for her safety and in shock. She described how he spat on her and how she told him to stop when he started to rape her. He cleaned up using tissues which she said he brought because he knew he would get sex. He then changed mood, drove back towards her home, stopping in a garage on the way home.

4

In respect of LW, the Court heard that the accused and the complainant initially made contact on Tinder on the 2 nd July 2014. They arranged to meet up on the 16 th July 2014. On the evening in question the accused picked the complainant up from her address and they went on a drive to a rural location, stopping near a graveyard. The encounter began consensually with the accused kissing the complainant. However, the accused then proceeded to move from his seat and lay on top of her. The complainant asked him to stop but he proceeded, kissing her and feeling her breasts. The complainant continued to ask the accused to stop. The accused pinned her down and the complainant used her hands to try and push him off. At this point, the accused stopped and became extremely angry and abusive. The accused told her to get out of the car. When the complainant got out of the car and began to walk down the road, the accused then drove up beside her and said that he would drop her home. She felt she had no choice and she got back into the car to go home. However, he pulled the car in again, took out his penis and began feeling her breasts and nipples and put his fingers down her pants. He asked her to remove her trousers. At this point the complainant had a panic attack and she tried to exit the car. He agreed again to bring her home but instead again pinned her down, sexually assaulted her by groping her and forced her to masturbate him. The event ceased once he ejaculated. He then completely changed in attitude, apologised, brought her home and sent her messages afterwards on WhatsApp. The offender had recorded this sexual assault on his phone.

Personal circumstances of Patrick Nevin
5

The accused was 33 years old at the time of offending. In terms of previous offending the sentencing court heard that the accused had already been convicted and sentenced in respect of the sexual assault of a third woman he met on Tinder. The accused received a sentence of five years and six months. This assault occurred five days after the sexual assault of LW.

6

In 2012, the accused was convicted in respect of unauthorised possession of a firearm contrary to section 2 of the Firearms Act 1925 and possession of a firearm in suspicious circumstances contrary to section 27A (1) of the Firearms Act 1964. He was sentenced to four years' imprisonment suspended for four years and was bound to the peace for four years. The offending at issue in this case occurred during that period of suspension.

7

On December 6th, 2001, Mr Nevin was convicted of assault causing serious harm, contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to seven years' imprisonment. On that date, he was also convicted of threatening to kill or cause serious harm, contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997. He received a concurrent seven-year sentence of imprisonment.

8

The Court had the benefit of a presanction report from the Probation Service. It appears that the accused was cooperative and accepted responsibility for the offences and he agrees with the victims' account of events and agrees that he subjected them to horrendous ordeals. Letters of apology were furnished to the complainants. With regard to the risk of reoffending, the report suggested that the accused presents a medium risk of reoffending.

The Sentence
9

The sentencing judge characterised the rape as premeditated and callous, with the accused using threatening behaviour and aggression. There were elements of degradation and it was predatory in nature; the complainant having been chosen at random from the Tinder app. The Court observed the context of the rape, occurring as it did four days before the sexual assault of a second complainant and eleven days before the sexual assault of a third complainant. It was also committed while the accused was under a suspended sentence for a different matter.

10

The sentencing judge stated that similarly, the sexual assault of LW was carried out in a predatory, premeditated and callous manner with a serious effect on the complainant.

11

The Court observed that there was little by way of mitigating factors in the present case. The Court accepted that there was a plea of guilty, although of little benefit to RB. whose trial had already commenced but of more benefit to LW whose trial was due to...

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