DPP v Purcil
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 06 October 2020 |
| Neutral Citation | [2020] IECA 328 |
| Docket Number | Record Number: 121/19 |
| Court | Court of Appeal (Ireland) |
| Date | 06 October 2020 |
[2020] IECA 328
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 121/19
THE COURT OF APPEAL
This is an appeal against sentence. On the 28th March 2019, the appellant pleaded guilty in Dublin Circuit Criminal Court to a count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 and a count of sexual assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990. He received an aggregate sentence of eight years' imprisonment with the final two years suspended on terms.
On the afternoon of the 21st January 2017, the appellant entered the premises of a Chinese holistic therapy centre on Mary St, Dublin. The complainant was working as a receptionist in the centre at the time and only she and the cleaner were present in the premises. When the appellant arrived he asked for a massage, the complainant explained that she was the receptionist and that there was nobody able to give him a massage on that day. The appellant asked if he could pay her money in exchange for sexual services. The complainant refused and the appellant asked a number of times before becoming aggressive.
The appellant then proceeded to hit her around the face and upper body area. He struck her with his fist on the right side of her neck, and then landed a second blow again with his fist to the left of her forehead before grabbing her by the face and pulling her forward and head-butting her. She was then punched in the eye and the assault continued. The appellant then produced a swiss knife which he held to her neck and he instructed her to take off her clothes. The appellant grabbed her by the throat and pushed her against the wall, he choked her causing her to lose consciousness. When she regained consciousness, he was still over her, choking her. She lost consciousness for a second time and when she regained consciousness, a man from the business below had come to her assistance and the appellant had left.
The complainant's leggings and underwear had cuts to them which forensic examination confirmed were caused by a knife as opposed to tearing. The complainant went to the Mater Hospital where she was assessed as having numerous injuries to her face and upper body. Following her discharge from hospital, the complainant was examined at the Sexual Assault Treatment Unit and in addition to the injuries on her face and upper body, the examiner found a laceration on her labia minora which was consistent with the damage to her clothing.
As part of the garda investigation CCTV footage was viewed from outside the premises and in the surrounding streets. The perpetrator and the clothing he was wearing could be identified. Following enquiries, the appellant was then identified as a suspect, his dwelling was searched and he was arrested on the 25th of April 2017. During the course of the search clothing was found which matched the clothing worn by the man on the CCTV footage and a knife matching the complainant's description was also recovered.
The appellant was initially charged with assault only, which he denied. The charge of sexual assault was then added to the indictment. A jury was sworn on the 27th March 2019 and the appellant then pleaded guilty to both counts on the 28th March 2019.
In terms of aggravating factors, the sentencing judge noted the appellant's record of conviction which included a conviction for rape in Romania for which he received a five-year term of imprisonment. He stated that he believed the appellant's culpability was high, involving as it did offensive and reprehensible acts which would have a long-term effect on the victim and therefore it was important to construct a sentence that would reflect the appellant's wrongdoing.
The judge referred to the following mitigation: the pleas of guilty, the remorse shown by the appellant and his personal history as outlined in the psychological report.
In relation to the section 3 assault the sentencing judge imposed a sentence of three years. In relation to the sexual assault the judge imposed a sentence of five years consecutive to the three years imposed on the s. 3 offence. Taking into account the mitigation present, the final two years of the sentence was suspended on terms, leaving an aggregate sentence of six years' imprisonment.
The appellant is originally from Romania and at the time of sentencing he was 39 years of age. He came to Ireland in 2015 or 2016, having previously travelled between Ireland and the UK whilst running a construction business. He has one conviction in Ireland for no insurance and seven convictions in other jurisdictions. These include racially aggravated common assault on 13th December 2015 from the South West London Magistrates Court in the UK which was dealt with by way of a fine and conditions. On 14th November 2007, he was sentenced to five years by the Bistrita Court in Romania for rape of a juvenile boy. The remaining convictions were all for theft offences imposed in the District Court, Bistrita, Romania.
A psychological report was submitted on behalf of the appellant and this outlined his personal history including that from the age of about 16 he was detained in a juvenile prison where he said that he did not receive any counselling or other assistance. He had outlined that, whilst he was in juvenile detention, he was the victim of an attack when he was 17 years of age and was also bullied and abused whilst in prison around that time. The report also outlined the role played by the appellant's past on his subsequent offending including ‘copying behaviour’, describing his as a “ complex case because of the diverse sexual interests that are in his past offending” and noting that his behaviour suggested a conduct disorder by the age of 15.
The appellant puts forward the following five grounds of appeal:-
(i) imposing the said sentence which in all the circumstances was disproportionate
(ii) imposing consecutive sentences in respect of counts arising from the same incident
(iii) not adequately weighing the mitigating factors
(iv) adopting a headline sentence that was too severe for the offences in question
(v) it is pleaded that the totality of the sentence which was imposed amounts to an error in principle, is disproportionate and in all the circumstances should be reduced by this Honourable Court
Although the appellant puts forward five grounds of appeal, it appears that the gravamen of the appellant's submissions is that the trial judge erred in principle in imposing a consecutive sentence for the sexual assault, despite the fact that the assault and sexual assault arose from the same set of circumstances or one single event.
The appellant submits that this was a case for concurrent sentencing as it involved a single factual event that did not extend over a significant period of time and did not involve multiple separate instances of offending over time and only one complainant was involved. While the potential for consecutive sentences for offences contained in the same indictment has been recognised in the case law, these cases usually involve systematic offending over a significant period of time.
The appellant refers extensively to the dicta of Charleton J. in The People (DPP) v. FE [2019] IESC 85 on the issue of consecutive sentencing. One factor which comes into play is the duration of the crime and in considering the duration of crimes generally, Charleton J. differentiates between spontaneous crimes and premeditated crimes. The appellant submits that in the instant case there was no evidence of premeditation.
In terms of consecutive sentencing, Charleton J. makes a number of key observations at para 31:-
“In many instances, but even still sensibly looked at, a criminal event may consist of several different offences. The accused could be a male burglar who breaks into a house in order to steal. In doing so he will be carrying housebreaking implements, he will criminally damage doors and windows to enter and make good his escape, he will steal, he may threaten to kill the householder if confronted, he may tie her up, thus assaulting and falsely imprisoning her. That may take half an hour. It is still one event. While separate charges may be sensible in case the jury are inclined to reject part of the narrative, such as the threat to kill, each crime informs the seriousness of the others in the set. It would be wrong in principle for a sentencing court faced with four convictions out of the same events to split these up for tariff purposes and make each term consecutive to the other. That would be to act artificially. The event of the crime was clearly very bad and deserves an appropriate sentence. It is not appropriate to treat the events as separate and requiring consecutive sentences.”
Charleton J. goes on to state that part of a decision in regarding a consecutive sentence as opposed to making all sentences concurrent will be the existence of a gap in time.
It is submitted that applying the principles outlined above, the offending in the appellant's case should be seen as one single instance of offending and treated as one transaction. The assault and sexual assault occurred together at the same time or immediately following each other, there was no ‘gap in offending’ where an offender might take stock and deserve further punishment for not having corrected his conduct after the first offence. It is submitted that by imposing consecutive offences the sentencing judge erred in law and in fact and additionally breached the principle of totality.
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