DPP v P (J)

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Sheehan
Judgment Date09 Mar 2015
Neutral Citation[2015] IECA 47

[2015] IECA 47

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

300/10
DPP v P (J)
The People at the Suit of the Director of Public Prosecutions
V
J.P.
Appellant

Criminal law - Sexual assault - Breach of trust - Sentencing - Compensation order - Appeal against severity of sentence - Whether trial judge erred in principle - Aggravating and mitigating factors - Approach adopted by trial judge and weight given

Facts The appellant sought to appeal against the severity of sentence imposed on him. He was convicted by jury trial in Dublin Circuit Criminal Court on 25th November 2010. He was convicted on 14 counts of sexual assault on J.G. The trial judge imposed a sentence of 8 years imprisonment on each count and directed the appellant pay €24,000 to J.G. The appellant claimed the trial judge erred in principle by imposing such sentences and in relation to the compensation order. The appellant argued the trial judge failed to have adequate or indeed any regard to the various mitigating factors. He claimed the approach adopted by the trial judge made it impossible to discern the factors to which he had regard to in determining the appropriate penalty. He said the trial judge had excessive regard to the manner in which the appellant conducted his defence. The appellant took issue with the fact the trial judge imposed in part a purely financial penalty when none was provided for by the Oireachtas.

In May 2006 J.G made complaints to the Gardaí that the appellant had abused him on at least 15 occasions between 2002 and 2004 when he was between the ages of 11-12 years old. The appellant was a trusted family friend who would bring J.G to his karate lessons. When confronted by Gardaí in relation to the abuse, the appellant made admissions and expressed remorse for what he had done. However, when his trial commenced in October 2010, he had resiled from his original position and contended that his confessions were not voluntary ones. He denied the abuse at trial. The actions of the plaintiff had a long-lasting impact upon the victim. He experienced nightmares, self-harmed on occasion, questioned his own sexuality and found it difficult maintaining relationships. The appellant was 54 years of age at the time of sentencing. He was said to be somewhat intellectually challenged. He was a single man with no previous convictions.

Held In his pre-sentence remarks it was evident the trial judge found the offending of a serious nature, however, the Court had some difficulty in inferring from those remarks, what weight the sentencing judge attached to different factors in the case. It was not clear how he arrived at such sentence, nor was it clear what weight he attached to the mitigating factors and what weight he attached to the aggravating factors. It was not possible to infer what approach was taken and what weight was given. In such circumstances, the judge held there was an error in principle and sought to review the sentence. The judge decided to vary the sentences by suspending the final 21 months of each 8 year sentence on condition that the appellant keep the peace and be of good behaviour for a period of 2 years following his release in his own bond of €1,000. He would also be directed to participate in a Better Lives Programme for sex offenders.

1

1. This is an appeal against the severity of sentences imposed on the appellant in the Dublin Circuit Criminal Court on the 25 th November, 2010, following a jury trial in which the appellant was convicted on fourteen counts of sexual assault on J.G.

2

2. The trial judge imposed a sentence of eight years imprisonment on each count and directed that all sentences be concurrent. In addition he made a compensation order directing that the appellant pay €24,000 to J.G.

3

3. The appellant contends that the trial judge erred in principle in imposing these sentences and in imposing the compensation order, hence this appeal.

4

4. The appellant contends that the learned sentencing judge erred in principle on four separate grounds:

1

He failed to have adequate or any regard to the numerous mitigating factors;

2

He constructed the sentence in such a way that it was impossible to discern the factors to which he had regard to in determining the appropriate penalty;

3

He had excessive regard to the manner in which the appellant conducted his defence;

4

He imposed in part a purely financial penalty when none is provided for by the Oireachtas.

5

5. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background
6

6. In May 2006, J.G. made a complaint to the Garda Síochána that the appellant had abused him on at least fifteen occasions between 2002 and 2004, when he was between eleven and twelve years old.

7

7. The appellant was a trusted family friend of J.G., whose grandparents' family was a friend of the appellant's mother.

8

8. The circumstances of the offences were that the appellant would bring J.G. to karate lessons. J.G. would change into his karate costume in the appellant's house, where the abuse occurred. The appellant sexually assaulted J.G. by rubbing gel into his genital area and masturbating him. J.G. also said that the appellant looked at him changing clothes through holes in the bathroom wall.

9

9. Following the complaint, the gardaí called to the appellant's house in May 2006 and he made admissions to the gardaí, showed them where he had made holes into the bathroom wall and expressed remorse for what he had done. He was subsequently arrested, detained and interviewed in May 2006, and admitted to what J.G. had complained about. However, when his trial commenced in October 2010, he had resiled from his original position and contended that his confessions were not voluntary ones. He maintained the gardaí had barged into his house with a ready made statement and that he had made admissions during the course of a video interview in custody, because the gardaí had suggested that if he did so the case would go away. He denied the abuse at trial, suggesting that the allegations had been made by J.G. in the context of the appellant's money having been entrusted to J.G.'s mother and not returned to him.

Victim Impact Report
10

10. JG gave an account of the suffering he had endured as a result of the assaults. This included occasional nightmares, an incident of self harm and a period when he spent questioning his own sexuality. He became angry as a result of what happened and stated that his own family relationships and his education had been disrupted. He did however conclude his report on a more hopeful note saying that since he had told the gardaí and his family about what had happened he had returned to school and had also become the father of a young daughter, to whom he was devoted.

The appellant's personal circumstances
11

11. The appellant is a single man who was born on the 12 th May, 1956 and was 54 years of age at the time of sentence. He is the third eldest of eight children. When he was nine years old he was deemed to be a slow learner and placed as a boarder in St. Augustine School for intellectually challenged children. He worked for a short period of time in a retail outlet in Dublin following his schooling and then joined the defence forces. He served 31 years in the army and received an honourable discharge.

The sentence hearing
12

12. At the sentence hearing the court received a Victim Impact Report already referred to, a probation report which indicated that the appellant did not accept the verdict and the court also heard evidence from two witnesses. The prosecuting garda confirmed the appellant's age, background and work in the defence forces as well as informing the court that he had no previous convictions and was a single man.

13

13. The appellant's younger brother gave more detailed...

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