DPP v O.R
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] IECA 61 |
| Docket Number | Record No: 2016/99 |
| Court | Court of Appeal (Ireland) |
| Date | 02 March 2017 |
[2017] IECA 61
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Edwards J.
Hedigan J.
Record No: 2016/99
Sentencing – Sexual assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant was convicted on the 25th of February by a majority jury decision in respect of an offence of sexual assault of contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990. He was sentenced to four years imprisonment to date from the 25/02/2016, with the last eighteen months of the said sentence suspended upon conditions. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the sentencing judge erred in failing to take full account of evidence in mitigation; (ii) the judge erred in handing down a sentence which was disproportionate in all of the circumstances; (iii) The judge erred in placing an excessive emphasis on the previous convictions of the appellant in particular in circumstances in which the said convictions were for offences which were not of the same nature or type; (iv) the sentence did not take account of the retributive effect of the loss suffered by the appellant by reason of his conviction with particular reference to his loss of standing within his family and the community; (v) The Court did not have due regard to the good behaviour of the appellant in the period since the commission of the offence; (vi) the Court did not in structuring the sanction have adequate regard to the rehabilitation of the appellant.
Held by the Court that the eighteen month effective discount, which represented a 37.5% discount, was generous in the circumstances of the case and it found no error of principle in regard to the discount for mitigation. The Court was satisfied that a headline sentence of four years imprisonment for the digital penetration of a woman while she slept was not out of kilter with the type of sentences imposed in other broadly similar sexual assault cases. The Court was therefore satisfied that the sentence was a proportionate one. The Court held that as the appellant had twenty eight previous convictions he had well and truly lost any possible mitigation for being of good character.
The Court held that, in circumstances where no error of principle had been demonstrated, it would dismiss the appeal.
Appeal dismissed.
The appellant was convicted on the 25th of February by a majority jury decision (11/1) in respect of an offence of sexual assault of contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act, 2001.
He was sentenced to four years imprisonment to date from the 25/02/2016, with the last eighteen months of the said sentence suspended upon conditions.
The appellant now appeals against the severity of his sentence.
On the evening of the 30th of April 2015 the appellant O.R., a male, and the injured party L.D., a female, had been drinking in a local pub and playing pool. They later returned to the injured party's house and continued drinking a large quantity of alcohol with a third party into the early hours of the 1st of May. At some stage during the night, the third party went upstairs to bed. The appellant made sexual advances on the injured party, putting his foot on her chair, pulling it over and attempting to kiss her. The injured party declined these advances, telling him that she had a boyfriend. She left bedding downstairs on the couch for the appellant to sleep on before going upstairs to bed herself.
Some period of time later, the injured party woke to feel fingers in her vagina. Initially thinking it was her boyfriend, she momentarily encouraged this behaviour, before realising it was the appellant. She asked the appellant to leave and called her parents. The appellant had gone downstairs but didn't leave the house until the injured party's parents arrived. The injured party attended at a Garda Station in the morning where she was attended to by Garda Fiona O'Keefe who arranged a medical examination with a Sexual Assault Treatment Unit. A clinical nurse conducted a full examination and noted an abrasion on the right labia minora at the 9 o'clock position consistent with the history given. On the 20th of June the appellant was arrested and interviewed. He was co-operative to a degree. However, his account was exculpatory to the extent that he maintained that the injured party had been agreeable to his advances, and had in effect had consented to them.
In a victim impact statement read to the Court by Garda O'Keefe, the injured party told the Court of the consequences the assault had had on her. She told the Court that she no longer felt at ease in her own home. She moved to her parents' house for a number of days after the incident, but moved back to keep her six year old daughter in a consistent routine. For four months afterwards, she slept on a mattress in her daughter's room with a knife under her pillow. She applied to the local authorities to move house and rarely left the house alone. She was prescribed anti anxiety medication and antidepressants by her GP and began drinking heavily. Mr R has family in her estate and she fears meeting him. She avoids leaving the house unnecessarily and cannot visit her housebound mother any longer. The impact of the assault was further compounded by the fact that many in her circle of friends disbelieved her, and this is all the more difficult because she lives in a small town. The prospect of a trial was also deeply upsetting to her. She attends counselling and continues to suffer flashbacks and nightmares and suffers mental health difficulties.
The appellant had, at the time of sentencing, 28 previous convictions. Of these, 11 related to public order, five to offences under section 3 of the Misuse of Drugs Act 1977, one to section 15 of the Misuse of Drugs Act 1977, seven to road traffic offences, one to litter and two to criminal damage. These various convictions dated back as far as 2002 and until as recently as March 2015 when he was convicted of the drugs offences. The appellant's family circumstances are relatively normal. At the time of sentencing, his parents and sister were all employed and living in north of the same county as the appellant lives in. Though at the time of trial he was unemployed, he has some work history, having worked as a plasterer from time to time after leaving school at age 14 to pursue an apprenticeship. Testimonials from previous employers indicated that they would be happy to employ him again.
In sentencing the appellant, the sentencing judge was keen to emphasise that alcohol consumption did not excuse the incident. He accepted the serious and traumatic impact on the victim. However, he noted that while the injured party had stated that she had been called a liar by certain persons as she walked down the street, the appellant could not be blamed for the actions of others. The sentencing judge rejected any contention that the injured party had indicated any form of consent, accepting that she was not in a position to do so as she was asleep and believed the appellant was her partner. As soon as she realised who it was, she told him to stop and get out. The sentencing judge...
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