DPP v P.N.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 21 February 2023 |
| Neutral Citation | [2023] IECA 42 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 76/2022 |
[2023] IECA 42
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 76/2022
THE COURT OF APPEAL
Sentencing – Defilement of a child under 15 years of age – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, on the 1st of April 2022, was sentenced to ten years’ imprisonment with the final two years suspended for one count of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006 with a further count under s. 3(1) of the same Act and a count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended, taken into consideration. The appellant appealed to the Court of Appeal against severity of sentence. The appellant relied on the following grounds in his appeal against sentence: (1) the sentencing judge failed to give sufficient weight and consideration to the personal circumstances of the appellant, and the supporting evidence; (2) the sentencing judge fell into error by giving undue importance to the principle of deterrence and failing to correctly balance that principle with the appellant’s circumstances; and (3) the severity of the sentence imposed by the sentencing judge was excessive and disproportionate having regard to all the circumstances of the case.
Held by the Court that in placing the matter in the upper end of the mid-range and identifying a headline sentence of 12 years, the judge actually placed the notional sentence in the lower end of the upper range. However, the Court was concerned to look at the actual figure nominated by the judge and found that whilst it could be said that identifying 12 years and so outside of the band nominated was an error in principle, it was not persuaded that it was an error of substance. Moreover, whilst any one of the members of the Court may have nominated a slightly lower headline sentence, it held that this was not the issue and the nominated headline sentence fell within the margin of appreciation afforded to a trial judge. Looking to the argument advanced that the judge did not allow sufficient reduction for mitigation, the Court noted that the judge reduced the sentence to one of 10 years’ imprisonment to reflect the mitigation, being a reduction of 16.7%. The Court acknowledged that when looking to the mitigating factors, the reduction was somewhat low, however, the appellant was not of good character, he was a man with previous convictions and, whilst those convictions did not aggravate the offending, they led to a progressive loss in mitigation. Whilst any member of the Court may have afforded greater discount for mitigation, it found that the reduction allowed again fell within the margin of appreciation. The Court noted that, having found the proportionate sentence to be one of 10 years’ imprisonment, the judge then considered the potential for rehabilitation and in that regard, concluded that it was appropriate to suspend the final two years of the sentence to encourage such rehabilitation. The Court noted that while the suspensory portion of the sentence was to incentivise rehabilitation, the overall reduction from the headline sentence was that of 33% leaving the actual carceral period at 8 years’ imprisonment. Whilst a suspended sentence was nonetheless a sentence, the Court was satisfied that it met the justice of the case and would assist the appellant in his reintegration into society.
The Court held that it would dismiss the appeal as it had not found an error in principle.
Appeal dismissed.
JUDGMENT of the Court delivered ( ex tempore) on the 21 st Day of February 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against severity of sentence. On the 1 st of April 2022, the appellant was sentenced to ten years' imprisonment with the final two years suspended for one count of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act, 2006 with a further count under s. 3(1) of the same Act and a count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, taken into consideration.
. The background to the offending is that the appellant met the injured party when he was 21 years of age, and she was 13. They commenced a sexual relationship in late 2005. The appellant stated that he initially thought that the injured party was 16 years old but that shortly after commencing the relationship he learned of her true age. The relationship ceased for a short period of time but was resumed by the appellant and continued for approximately three years.
. The injured party became pregnant during the summer of 2007 when she was 15 years old. She gave birth to a daughter and the appellant was noted as the baby's father on the birth certificate. The hospital notified An Garda Síochána given that the injured party was only 15 years of age when she became a mother. The matter was not investigated at the time because the injured party and her mother indicated that they did not want the matter taken any further. Tusla also became involved but similarly, no action was taken. The injured party continued to live with and be in a relationship with the appellant until she was 16 years of age.
. In 2020, the injured party made a statement of complaint to An Garda Síochána. She explained that she was motivated to make her statement at this particular point in time because her daughter was now 12 years of age and the thought of her daughter becoming involved in a sexual relationship was troubling to her and caused her to reflect on her own youth at the time of her relationship with the appellant. She described that at times during the relationship, the appellant was jealous, obsessive and violent towards her and that he would try to undermine her. She described how she sustained black eyes, bruising and that her nose was broken at his hands.
. The injured party prepared a victim impact statement in which she refers to the loss of her childhood and explains that she is extra cautious with her own children as a result of the offending. She further outlines that the appellant both physically and emotionally abused her and that she suffers from severe body image issues, trouble sleeping and nightmares.
. The appellant is a father to two children aged 10 and 14 at the time of sentencing. He has previous convictions for road traffic matters, possession of drugs and public order offences all of which would have been dealt with summarily. He has no previous convictions of a sexual nature.
. The sentencing judge noted the aggravating factors as the age disparity between the appellant and the injured party, that the appellant was aware of this age disparity and yet persisted in the relationship, the length of time over which the offending took place, that the injured party became pregnant as a result of the offending, that the relationship continued for the appellant's own sexual gratification and in defiance of advice given to him, his exercise of control over the injured party, his limited empathy for the injured party and the effect of the offending on the injured party.
. In terms of mitigation, the judge had regard to the appellant's early guilty plea, his cooperation with the investigation, his apology and expression of remorse and that he was assessed at being at a moderate to low risk of reoffending. The judge noted that the appellant regrets the relationship, but is thankful for their daughter.
. The sentencing judge considered there was a degree of coercive control on the part of the appellant and that the injured party was isolated from her friends during the relationship. He did not accept that the appellant was not violent towards the injured party.
. The judge placed the offending at the upper end of the mid range and nominated a headline sentence of 12 years' imprisonment. Taking into account mitigation, this was reduced to 10 years. In order to foster and encourage the rehabilitation of the appellant, the final two years of the sentence was suspended for a period of five years on terms. The sentence was imposed on the s. 2(1) charge with the other charges taken into consideration.
. The appellant relies on the following grounds in his appeal against sentence:-
“1. The learned sentencing judge failed to give sufficient weight and consideration to the personal circumstances of the applicant, and the supporting evidence;
2. The learned sentencing judge fell into error by giving undue importance to the principle of deterrence and failing to correctly balance that principle with the applicant's circumstances.
3. The severity of the sentence imposed by the learned sentencing judge was excessive and disproportionate having regard to all the circumstances of the case;”
. It is the appellant's position that the 12-year headline sentence was too high and that the sentencing judge erred in placing the offence on the upper end of the middle range. It is submitted that the appropriate headline sentence should have been at the mid to low range of the middle range before any discount for mitigating factors.
. The appellant complains that the reduction from the 12-year headline sentence to 10 years in recognition of the appellant's mitigation represents a reduction of 16.7% and was a departure from sentencing norms in circumstances where the appellant had the benefit of the mitigating factors of full...
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