DPP v P (J)
 IECA 54
THE COURT OF APPEAL
113CJA/2011 - Ryan Mahon Edwards - Court of Appeal - 15/12/2014 - 2014 16 4610 2014 IECA 54
CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S2(1)
CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S2
DPP v BYRNE 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
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 of1990. 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.
The Court of Criminal Appeal inThe People at the Suit of the Director of Public Prosecutions v. Byrne 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. . ), the decision should not be disturbed"
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.
The evidence was that the offences concerned the sexual assault and defilement of the daughter of the respondent's erstwhile girlfriend.
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 the injured party's mother. The respondent was fifteen years old when that relationship began. The injured party also resided in the same house with her two sisters and her old brother. On numerous occasions the respondent was left, on his own, with the injured party, either while babysitting her or simply on account of the other residents being out at the time. The injured party described a history of intimacy with the respondent that began with kissing and then progressed to sexualised contact. The respondent apparently described himself as her boyfriend. It was clear from the evidence that no stage did the respondent use physical force to engage in sexual acts with the child. It was also clear that she was a willing participant in the engagements. After a period of time during which their involvement went no further than kissing and fondling it seems that the injured party spoke to the respondent about sexual intercourse. The evidence was that they discussed having sex together but that the respondent had told her that he would "wait until she was ready". Some weeks after this conversation the respondent had sexual intercourse with the injured party. This occurred at a time when the injured party's mother was out of the house and the respondent had been left to mind the child. There were two further instances of sexual intercourse between the two after this occasion. Evidence was also given that on a number of occasions the injured party performed oral sex on the respondent and the evidence was that on all occasions these acts occurred when the injured party's mother was outside the home.
Subsequently, the respondent was asked to move out of the injured party's mother's home. At the time her mother was unaware of the sexual acts that had been taking place between the respondent and her daughter. After the respondent moved out the injured party was noticed by her mother to be very upset and withdrawn. The injured party eventually disclosed to her the acts that she and the respondent had engaged in. The matter was reported to the gardaiacute; and ultimately on the direction of the DPP the respondent was charged with various offences and sent forward for trial.
Other pertinent facts are that the respondent was entirely co-operative in the...
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