DPP v A.P.

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date12 December 2017
Neutral Citation[2017] IECA 335
Docket Number291/16
CourtCourt of Appeal (Ireland)
Date12 December 2017

[2017] IECA 335

THE COURT OF APPEAL

Mahon J.

Mahon J.

Edwards J.

Hedigan J.

291/16

The People at the Suit of the Director of Public Prosecutions
Respondent
- AND -
A.P.
Appellant

Sentencing - Sexual offences - Rehabilitation - Appellant seeking to appeal against sentence - Whether sentencing judge failed to have adequate regard to the principle of rehabilitation in sentencing

Facts: The appellant entered a guilty plea on the 20th January, 2016 to one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 and one count of exploitation contrary to s. 3 of the Child Trafficking and Pornography Act 1998. On the 5th October, 2016, in the Circuit Criminal Court, the appellant was sentenced to four years imprisonment on each count to run concurrently. The appellant appealed to the Court of Appeal against severity of sentence on nine grounds, namely, the sentencing judge erred in law in: (1) failing properly or at all to locate the offences committed on the scale of gravity for the offences concerned; (2) treating the offences as being "top of the middle range" category, notwithstanding the absence of evidence of duress or the use or threat of force and the absence of evidence of persistent behaviour; (3) failing to have sufficient regard to the manner in which the appellant met the offence; (4) failing to give due credit for the mitigating factors present and the sentence was accordingly disproportionate; (5) failing to consider the evidence in support of the submission that the appellant was at low-risk of reoffending; (6) failing to give sufficient credit to the remorse on the part of the appellant, his insight into the nature of his offending and his previous good character; (7) failing to have adequate regard to the principle of rehabilitation in sentencing; (8) failing to have adequate regard to the personal circumstances of the appellant and the devastating impact the matter had on the appellant to date and would have in the future; and (9) imposing a sentence that was disproportionate in all the circumstances.

Held by the Court that the judge's approach to the sentencing process was appropriate. However it considered that the judge ought to have given consideration to incentivising rehabilitation; there was every reason to believe that the appellant had faced up to his offending and had taken every opportunity to address the problems which contributed to that offending. To that extent the Court found an error of principle and proceeded to resentence the appellant.

The Court held that it would impose a sentence of four years in prison but would suspend the final eighteen months for a period of two years subject to conditions including compliance with the requirements of Forensic Psychological Services as recommended in Dr De Volder's report of the 13th June, 2016.

Appeal allowed.

JUDGMENT of the Court delivered on the 12th day of December 2017 by Mr. Justice Mahon
Introduction
1

This is an appeal against severity of sentence. The appellant entered a guilty plea on the 20th January, 2016 to one court of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 as amended and one count of exploitation contrary to s. 3 of the Child Trafficking and Pornography Act 1998 as amended. On the 5th October, 2016, in the Circuit Criminal Court, the appellant was sentenced to four years imprisonment on each count to run concurrently.

The circumstances of the offences
2

The sexual assault occurred between September and October, 2011, and the exploitation between April and May, 2012, before and after the victim's, (the appellant's daughter) second birthday. The appellant was watching pornography on a computer and masturbating when his daughter came into the room and he asked her to lick the top of his penis. On the first occasion, she did as instructed and left the room shortly thereafter. On the second occasion, she refused the request but remained in the room and the appellant ejaculated in front of her.

3

In November, 2014 the victim reported the incidences to her mother. She confronted the appellant who did not deny the allegations and he removed himself from the family home.

4

The appellant then contacted crime stoppers and told them that he wished to make a confession. They advised him to present himself at his local Garda station. On the 3rd December, 2014, he made a voluntary cautioned statement to the Gardaiì. In February, 2015 he made himself available for arrest and interview. When subsequently charged he made full admissions and fully cooperated. He entered a guilty plea on the first available opportunity.

5

The victim's mother prepared a victim impact statement in which she detailed how the family was devastated and of the very significant and on-going impact on the victim, her sibling and herself.

The appellant's personal circumstances
6

The appellant had a difficult upbringing. He has no previous criminal convictions and did not come to Garda attention after he was charged. He had a good work history and did voluntary work with the community. At the time of sentencing he was unemployed and on disability benefit. There existed personal and financial circumstances at the time of the offending.

7

The appellant presented to mental health services on the 10th December, 2014. He had become depressed and suicidal. There were probation, psychiatric and psychological reports made available to the sentencing Court. He was described as psychologically vulnerable with mood regulation difficulties. He was described in the probation report as being at a low risk of reoffending. He was aware of the impact of his actions. He took full responsibility and deeply regretted his actions. He engaged with the assessment process and recognised the need for ongoing therapeutic input relating to managing his mood, his problematical childhood and issues related to the offence. It was indicated he could benefit from specialist therapeutic intervention in relation to his offending.

8

The appellant volunteered to go into custody the day before sentencing when the matter had been listed but not reached in the Court below. He had by then left his accommodation and would otherwise have been homeless.

Sentencing
9

The sentencing judge placed the offence at the top of the middle range. He noted the aggravating factors to include the fact that the victim was the appellant's own child, her age, the devastating and fundamental breach of trust, the stealing of a child's innocence and the effect on the victim and her family as conveyed in the victim impact report. The mitigating factors were the plea which was considered to be 'ultra-important' in light of the victim's age and circumstances, the fact that he had turned himself in and confessed, that he had no previous convictions, that he was at a low risk of reoffending and his acceptance that he needed help and his willingness to continue receiving it, his remorse and regret the fact that he was devastated by what happened. The sentencing judge also referred to the conclusions contained in the psychological report. He also noted that there were no threats, violence or grooming involved.

10

In light of the mitigating factors and that the appellant is now serving, in effect, a self-imposed life sentence in the sense that his children will likely never want to have anything to do with him, the sentencing judge reduced the headline sentence of seven years to four years imprisonment on each count to run concurrently. It was directed that the appellant be placed on the Sex Offenders Register.

Appellant's submissions
11

The appellant submitted nine grounds of appeal, namely, the sentencing judge erred in law in:

(1) failing properly or at all to locate the offences committed on the scale of gravity for the offences concerned,

(2) treating the offences as being 'top of the middle range' category, notwithstanding the absence of evidence of duress or the use or threat of force and the absence of evidence of persistent behaviour,

(3) failing to have sufficient regard to the manner in which the appellant met the offence. In particular, due regard was not given to: the fact that the appellant's confession not only brought about the investigation, it formed virtually the entire basis of the prosecution's case; the significant difficulties that would have been faced in prosecuting the case had the confession not been made or had the case been subsequently contested,

(4) failing to give due credit for the mitigating factors present and the sentence was accordingly disproportionate,

(5) failing to consider the evidence in support of the submission that the appellant was at low-risk of reoffending,

(6) failing to give sufficient credit to the remorse on the part of the appellant, his insight into the nature of his offending and his previous good character,

(7) failing to have adequate regard to the principle of rehabilitation in sentencing,

(8) failing to have adequate regard to the personal circumstances of the appellant and the devastating impact the matter had on the appellant to date and will have in the future, and

(9) imposing a sentence that was disproportionate in all the circumstances.

12

The grounds of appeal were addressed under two main categories. The assessment of the gravity of...

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