DPP v P (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 December 2014
• Neutral Citation: [2014] IECA 54
• Docket Number: Appeal Number 113CJA/11
• Court: Court of Appeal (Ireland)
• Date: 15 December 2014

[2014] IECA 54

THE COURT OF APPEAL

Ryan P.

Mahon J.

Edwards J.

Appeal Number 113CJA/11

DPP v P (J)

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

Between/

The People at the Suit of the Director of Public Prosecutions

Appellant

- v -

J.P.

Respondent

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S2(1)

CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S2

DPP v BYRNE 1995 1 ILRM 279 1995/5/1758

Sentencing – Sexual offences – Undue leniency – Appellant seeking to appeal against sentence on grounds of undue leniency – Whether trial judge engaged in a proper exercise of judicial discretion

Facts: The respondent sexually assaulted and defiled the daughter of his erstwhile girlfriend. The respondent pleading guilty to five counts of engaging in sexual intercourse / engaging in a sexual act with a child under the age of fifteen contrary to s. 21 of the Criminal Law Sexual Offences Act 2006 and two counts of sexual assault contrary to s. 2 of the Criminal Law Rape Amendment Act of 1990. The sentencing judge imposed a sentence of three years imprisonment which he saw fit to suspend in its entirety. The appellant, the DPP, appealed to the Court of Appeal against the leniency of the sentence imposed by the Circuit Criminal Court. The case made by the DPP is that the sentence was unduly lenient and the Court of Appeal was asked to find that there had been an error of principle in that respect and, if the Court saw fit, to substitute an appropriate sentence for the sentence imposed.

Held by Edwards J that, having considered The People at the Suit of the Director of Public Prosecutions v Byrne [1995] 1 ILRM 279, the difficulty for the Court in considering the issue of suggested undue leniency was that the trial judge was very experienced, and he clearly gave great care and consideration to the facts of this case; he characterised them as peculiar and exclusive and the Court agreed that they were peculiar, that they were highly unusual and that they were highly exceptional. Although the range of potential penalties that might have been imposed in respect of the offences of sexual intercourse with a child, and engaging in sexual acts with a child, range from non-custodial up to life imprisonment, Edwards J considered that in circumstances where at the low end of that range a non-custodial option is available, it is within the discretion of the trial judge in an appropriate case to impose a non-custodial sentence. Edwards J noted that in most cases of this type, a custodial sentence would be usual and appropriate, but as the trial judge pointed out the circumstances of this case were peculiar. Edwards J held that there were many factors in this case which rendered it so; amongst those were the fact that the appellant moved in with the victim"s mother at the age of 15 and began an inappropriate sexual relationship with her at that time. He is a person of low IQ and low intellectual ability. He was also a person who was immature in many ways and was himself somewhat vulnerable. In addition, he did not engage in any kind of grooming or violence of predatory conduct. He made full admissions and faced up to his responsibility in regard to the matter at an early stage and offered an early plea of guilty. There was a positive probation report in the case which rated his risk of re-offending as being low. The Court also took into account the fact that a good deal of time had elapsed since the matter was first brought to notice.

Edwards J held that it would be inappropriate for the Court to interfere with the decision and judgment of the sentencing judge; the sentence imposed may have been lenient but it was not demonstrated to the Court"s satisfaction to have been unduly so. Edwards J reasoned that while there is no doubt that it was lenient, it was at the lenient end of the permissible range. The Court believed that the trial judge engaged in a proper exercise of his judicial discretion and the Court found no error in principle.

Appeal dismissed.

1 1. In this case the Director of Public Prosecutions appeals against the leniency of a sentence imposed by the Circuit Criminal Court, following upon the respondent pleading guilty to five counts of engaging in sexual intercourse / engaging in a sexual act with a child under the age of fifteen contrary to s. 21 of the Criminal Law Sexual Offences Act 2006 and two counts of sexual assault contrary to s. 2 of the Criminal Law Rape Amendment Act of 1990. The sentencing judge imposed a sentence of three years imprisonment which he saw fit to suspend in its entirety. The case is made by the Director of Public Prosecutions that the sentence was unduly lenient and this Court is asked to find that there has been an error of principle in that respect and, if the court sees fits, to substitute an appropriate sentence for the sentence imposed.

2 2. The Court of Criminal Appeal in The People at the Suit of the Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M.279 set forth some general guidelines relevant to this type of appeal. Giving judgment for the court, O'Flaherty J said that the Court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He went on:

"He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case - both women were adamant that they did not want to come to court - he may detect nuances in the evidence that may not be as readily discernible to an appellant court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced, which in another case Mr. Justice Flood had termed 'the constitutional principle of proportionality' (see People (DPP) v. W.C. [1994] 1 I.L.R.M. 321), the decision should not be disturbed".

3 3. It will be plain from that passage that the facts of the case are all important and it is necessary in those circumstances to rehearse the facts of this particular case which the learned trial judge characterised as peculiar and unusual, a characterisation that this court agrees with.

4 4. The evidence was that the offences concerned the sexual assault and defilement of the daughter of the respondent's erstwhile girlfriend.

5 5. It occurred at the time when the victim was thirteen years of age and while the respondent, who was twenty three, continued to reside in her mother's house. These living arrangements had commenced when the respondent became involved in a sexual relationship with...