DPP v P.C.

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date07 December 2017
Neutral Citation[2017] IECA 328
Docket Number196/CCA/14
CourtCourt of Appeal (Ireland)
Date07 December 2017
The People at the Suit of the Director of Public Prosecutions
Respondent
V
P.C.
Appellant

[2017] IECA 328

196/CCA/14

THE COURT OF APPEAL

Sentencing - Sexual offences - Severity of sentence - Appellant seeking to appeal against sentence - Whether sentence was unduly severe

Facts: The appellant, on the 25th March, 2011, was convicted in the Central Criminal Court of 60 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and 14 counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981. On the 26th May, 2011, the appellant was sentenced to 10 years on each of the sexual assault counts and 15 years on each of the rape counts. The sentences were to run concurrently. The final three years were suspended on condition that the appellant enter a bond of �1,000 to keep the peace and be of good behaviour for a period of three years and that he have no contact with the victim in perpetuity. The sentence was backdated to the 25th March, 2011. The Court of Appeal allowed an application to extend time to appeal the severity of sentence but refused the application in relation to the appellant's appeal against conviction. The appellant submitted that: 1) the trial judge did not observe the principle of proportionality in sentencing; 2) the trial judge did not adequately take into consideration the appellant's advanced age at the time of sentencing; and 3) the appellant's previous good character, substantial work history and significant contribution to the community through his work as a sports coach were not adequately taken into consideration when imposing sentence.

Held by the Court that it could not identify any error of principle on the part of the sentencing judge and thus it could not interfere with the sentence imposed.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 7th day of December 2017 by Mr. Justice Hedigan
Introduction
1

This is an appeal against severity of sentence. On the 25th March, 2011, the appellant was convicted in the Central Criminal Court of 60 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended and 14 counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended. There had been a previous trial which resulted in acquittals, and disagreements in relation to these 74 counts. On the 23rd May, 2011, the sentencing court heard the facts. On the 26th May, 2011, the appellant was sentenced to 10 years on each of the sexual assault counts and 15 years on each of the rape counts. The sentences were to run concurrently. The final three years were suspended on condition that the appellant enter a bond of �1,000 to keep the peace and be of good behaviour for a period of three years and that he have no contact with the victim in perpetuity. The sentence was backdated to the 25th March, 2011.

2

This Court allowed an application to extend time to appeal the severity of sentence but refused the application in relation to the appellant's appeal against conviction.

The circumstances of the offences
3

The appellant is the victim's father. The offences took place in the family home when she was aged 9 to 14. Over the years, the assaults progressed from once or twice a week to everyday. It started with touching and digital penetration and progressed to rape. If she refused she would not be allowed out to see her friends. When she threatened to tell her mother the appellant told her that her mother would hate her.

4

The victim eventually wrote a note saying she would leave home and her mother should ask her father why. Her mother found the note and asked her what she meant. The victim then told her mother what had been happening.

5

The victim's mother confronted the appellant who initially denied the allegations. However, having asked one of their other children to leave the room the appellant stated he would see a doctor to find out what was wrong with him so that he could explain it. The victim's mother insisted that the appellant leave the house.

6

The matter was reported to the Gardai� and the appellant was interviewed. He occasionally made denials but the majority of his answers were that if his daughter said that, then it must be true. At trial, the appellant gave evidence to say that none of the allegations were true.

7

A victim impact statement was handed in and read before the Court. It detailed the horror of the abuse, including how the victim felt alone and cut off without freedom or privacy. It affected her studies and her relationships. She described the distress of receiving messages from the appellant during the first trial. She also described being put 'through hell' starting with the abuse and then going through the two trials.

The appellant's personal circumstances
8

The appellant was 71 years old at the time of sentencing. He had one very minor previous conviction for a road traffic matter. He was involved with sports and training over the years. The probation report noted that he was assessed as being low risk for long-term sexual reoffending and moderate for non-sexual violent reoffending.

Sentencing
9

The judge found that the offences merited a sentence of 15 years imprisonment. He sentenced the appellant to 10 years on each of the sexual assault counts and 15 years on each of the rape counts. The sentences were to run concurrently.

10

The aggravating factors were the breach of trust involved, the victim being the appellant's daughter. The location of the offences within the victim's home where she was entitled to security and sanctuary. The age of the victim. The effect on the victim as disclosed by the victim impact statement. The frequency of the offences. The period over which they extended. The predatory nature of the offences. The absence of any genuine remorse. The attempts to sabotage the trial process by pre-trial communications with the victim and her mother.

11

The mitigating factors were his lack of previous convictions and his lifetime devotion to hard work and sporting activities. His age was noted and that it is undesirable that anyone should die in prison. Taking these factors into account the judge suspended the final three years of the sentence.

Appellant's submissions
12

The appellant's grounds of appeal against severity of sentence can be summarised into three categories.

13

First, the trial judge did not observe the principle of proportionality in sentencing. It is submitted that the absence of a structure affording the appellant an opportunity for rehabilitation, and the fact that the appellant faces spending a large proportion of his remaining years in prison, amount to a failure to observe the principle of proportionality.

14

Second, the trial judge did not adequately take into consideration the appellant's advanced age at the time of sentencing and the fact that he would be over 80 years old upon release and therefore would be in a vulnerable position at the time of his release. The appellant referred to O'Malley, 'Sentencing Law and Practice', 2nd Ed., (Dublin, 2006) at page 149 where the author notes: 'It has been said that when sentencing an elderly offender, a court cannot overlook the reality that each year of sentence represents a substantial proportion of the life-span of the offender.'

15

Third, the appellant's previous good character, substantial work history...

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