DPP v P.M.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 19 February 2016 |
| Neutral Citation | [2016] IECA 49 |
| Docket Number | Appeal No. 183/2014 |
| Court | Court of Appeal (Ireland) |
| Date | 19 February 2016 |
[2016] IECA 49
THE COURT OF APPEAL
Edwards J.
Appeal No. 183/2014
Birmingham J.
Sheehan J.
Edwards J.
Crime & sentencing ? Sexual offences ? Exploitation of a child ? Child abused by both parents
Facts: The appellant had been convicted of sexual offences committed against his daughter, and was aided in doing so by the child?s mother. He now appealed against his sentence.
Held by Mr. Justice Edwards that the appeal would be allowed and the sentence varied. Notwithstanding the serious nature of the offences, the sentencing judge failed to take fully into account relevant mitigating factors such as the remorse shown and the suspension of a period of the sentences handed down was not sufficient to reflect the weight of those factors. On that basis the appeal would be allowed.
In this case the appellant, having been convicted by a jury in the Dublin Circuit Criminal Court on the 20th of May, 2014, on three counts on the indictment before them, namely encouraging or knowingly facilitating the production of child pornography contrary to s. 5(1) of the Child Trafficking and Pornography Act 1998 (count no. 2); sexual exploitation of a child contrary to s.3 of the Child Trafficking and Pornography Act 1998, as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008 (and as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007) (count no. 3); and child cruelty contrary to s. 246 of the Children Act 2001 (count no. 4) was sentenced on the 31st of July, 2014, to five years imprisonment, with the last twelve months thereof suspended, on counts 2 and 3, respectively; and to three years imprisonment on count no. 4. All sentences were to date from the 31st of July, 2014, and were set to run concurrently.
The appellant appeals against the severity of his sentences.
In very broad outline, the case arose out of the videoing, using a phone camera, by the mother of a little girl, of her child's involvement in sexual activity with the appellant, who was the child's father, in a bedroom in the child's home.
The detailed facts of the case are fully rehearsed in this Court's earlier judgment in respect of an appeal by the appellant against his conviction. It is not proposed to repeat them. Instead, readers are referred to the said earlier judgment i.e., The People (Director of Public Prosecutions) v. P.M. [2015] IECA 325 (unreported, Court of Appeal, 21st December 2015), a copy of which is to be found on the Courts Service website (www.courts.ie).
The victim in this case is very young and was unable on that account to furnish her own victim impact statement. However, the sentencing court was asked to receive in evidence a victim impact report prepared by a social worker from Tusla, the Child and Family Agency. However, parts of that report were objected to as going beyond a description of the harm done, and in those circumstances the unobjectionable parts of that report were read into the record by counsel for the prosecution. The portions read into the record stated:
?The current situation
This child is currently attending therapeutic services provided by [a named] sexual abuse unit. The child has been separated from her parents and has been placed in the care of the Child and Family Agency. This child was placed with a very committed and loving foster carer who will endeavour to support her throughout the recovery process
Impact of the abuse suffered.
Due to this little girl's young age it is difficult to determine the overall impact that the abuse she suffered has had on her and will have on her future life. However, academic research in the area of childhood sexual abuse is clear that child sexual abuse has short and long term effects on psychological functioning - Carr 2006.?
?In this little girl's case she was sexually abused by both her mother and her father?
?The social worker who was the long-term allocated social worker to this case from 2011 until 2013 did lots of work with this little girl around helping her to understand that both of her parents broke the touching rule and that this is why she is in care. Whilst this little girl appears to understand this rule and the reasons why she is not allowed to be cared for by either of her parents, professionals who have worked with her over time have stated that this little girl is in denial about her father's bad or wrong behaviours, actions?
?This child is already displaying behaviours including difficulty fully trusting that she is loved, extreme clinginess, indiscriminate behaviour towards adults that she does not know, telling lies, which both relate to her desire to please and desire for love and affection, premature sexualised behaviour and extreme fear?
The evidence adduced at the sentence hearing on the 23rd of July 2014 established that the appellant and the child's mother had been in a relationship for a number of years, and that they had one child, namely the injured party, who was born in August 2005 and was aged between 4yrs and approximately 6 months at the date of the offences in March 2010. The appellant and the injured party's mother were not living together at the relevant time and the appellant was in fact living with his mother. At that point the injured party lived with her own mother during the week, but sometimes visited and stayed over at the appellant's home at weekends. On other occasions the appellant visited and stayed over with his daughter and her mother at their house. It was on one such occasion that the offences took place.
The appellant was born on 3rd of February 1986 and so was 24 at the date of the offences and 28 at the date of his sentencing. He had previous convictions. He had trained as a carpenter, but worked in the construction industry as a machine driver. At the date of his sentencing he was in fact acting as foreman on a building site.
Under cross examination the prosecuting Garda accepted that the appellant had been extremely co-operative and had submitted to both a question and answer type interview in which he had answered all questions and had also given a full statement. He had been polite and accommodating.
The sentencing court also heard evidence from the appellant's brother who told the court about his recollection of his brother growing up, about the appellant's work ethic and work record, about his own family circumstances (he is married and he and his wife have two young children of their own) and how, by arrangement with the HSE (presumably Tusla), visits between the appellant and the injured party were being facilitated at their home, in circumstances where the witness and his wife were entrusted with the supervision of those visits. He stated that the injured party was staying overnight at their house once a month and that the appellant was keeping up good contact with his daughter and had contributed towards special occasions such as her communion and her holidays.
At the trial the court had already heard detailed evidence concerning certain intellectual or cognitive deficits that the appellant has, including testimony from three clinical psychologists, i.e., a Ms Niamh O'Connor, and a Dr Patrick Randall of Forensic Psychological Services (FPS) called on behalf of the appellant, and from a Dr Kevin Lambe, called on behalf of the respondent. Their evidence at the trial, which was relevant to certain issues raised in the course of a voir dire, is extensively reviewed in this Court's earlier judgment.
While there was a conflict in the psychological evidence as to whether the appellant was a particularly vulnerable interviewee because of the level of his cognitive functioning (which was itself in dispute) and his tendency towards compliance, the trial judge had resolved that conflict by preferring the evidence of Dr. Lambe. Dr. Lambe had opined that that the appellant did not have an intellectual disability and intelligence was not a vulnerability in his case. However, from the perspective of sentencing it was potentially relevant, and the appellant's counsel relied inter alia upon this evidence in his plea in mitigation, that the appellant's cognitive functioning was assessed as being somewhere between borderline (the FPS assessment) and low average (Dr Lambe's assessment), and it was not in dispute that he has a tendency towards compliance.
The sentencing judge was also provided with a positive testimonial concerning the appellant from his employer, and with a letter from the social workers concerned with the child confirming supervised access.
At the appellant's sentence hearing the court was told that the child's mother had pleaded guilty on the 21st of November 2011 in the Dublin Circuit Criminal Court to a count of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 and to a count of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998. She had two minor previous convictions for public order type offences. The Court heard that she had been sentenced on the 16th of July 2012 (by a different judge) to three years imprisonment on each count to date from the 16th of July 2012, with the last 20 months of the sentence being suspended on various conditions. The mother had completed her sentence as of the date of the appellant's sentencing.
In the course of sentencing the appellant, the sentencing judge stated:
?The accused was convicted following a six day trial on count 2 by a majority...
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