DPP v E.R

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 03 July 2020
• Neutral Citation: [2020] IECA 238
• Docket Number: Record Number: 226CJA/19
• Court: Court of Appeal (Ireland)
• Date: 03 July 2020

IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT,1993, AND IN THE MATTER OF:

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

E.R.

RESPONDENT

[2020] IECA 238

Birmingham P.

McCarthy J.

Kennedy J.

Record Number: 226CJA/19

THE COURT OF APPEAL

JUDGMENT of the Court (ex tempore) delivered on the 3rd day of July 2020 by Ms. Justice Kennedy .

1 This is an application for a review of sentence pursuant to section 2 of the Criminal Justice Act, 1993. The respondent pleaded guilty to three counts of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990; four counts of rape contrary to section 48 of the Offences Against the Person Act, 1861 and section 2 of the Criminal ( Rape) Act, 1981 as amended by Section 21 of the Criminal Law (Rape) (Amendment) Act, 1990;three counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990; one count of child exploitation contrary to section 3 of the Child Trafficking and Pornography Act, 1988 (as amended) and one count of invitation to sexual touching contrary to section 4(1) of the Criminal Law (Sexual Offences) Act, 2017.

2 The respondent received a sentence often years’ imprisonment with the final two years suspended on terms.

Background

3 The respondent is the uncle by marriage of the complainant. His spouse and the complainant's mother are sisters. The complainant was born in 2010 and she was aged eight at the time of the offences which spanned from 15th October 2018 to 16th January 2019.

4 There was an arrangement that the complainant's aunt, the wife of the respondent, minded the complainant and her siblings after school, along with her own children. The respondent would often pick the children up from school and mind them until he had to return to work. During this time he developed a “secret code” in order to signal to the complainant to go upstairs. The sexual abuse occurred at least on a weekly basis and involved the touching of the complainant's genitals, performing oral sex upon her and penetrating her with his penis. It also included his encouragement and emotional manipulation of her in order for her to fondle his genitals and to perform oral sex upon him. The majority of the offending took place in the respondent's home, aside from one instance of rape which took place in the complainant's home.

5 The offending came to light in January 2019 when the complainant confided to a family member that the respondent would use a special code to signal for her to go upstairs in order to abuse her. At this time, the respondent was in Dublin Airport with the intention of returning to the Philippines due to marital difficulties. The respondent learnt of the allegations being made and eventually returned from the airport and presented himself at the garda station where he was arrested and interviewed. There were four interviews in total and during the fourth interview, the respondent gave a thorough account of the offending behaviour.

Personal circumstances of the respondent

6 The respondent is originally from the Philippines. He moved to Ireland in February 2006 with his wife. They have two children. At the time of sentencing the respondent was 38 years old and he has no previous convictions.

The sentence

7 In imposing sentence, the sentencing judge identified two main aggravating factors: the first being the nature of the horrific offences of grooming, exploitation and sexual abuse of a young child which were of a very serious nature and the second being the breach of trust involved given that the respondent was a trusted uncle who was trusted by the complainant's family and his own family to take care of the children.

8 In terms of mitigating factors, the sentencing judge identified the plea of guilty which came at the earliest stage possible, the respondent's genuine display of remorse and his full and frank disclosure of the offences in question. The judge identified his previous good character and the contents of the probation report. The sentencing judge characterises the report as somewhat of an exceptional nature because it details that the respondent had progressed in understanding the enormity in scale of his wrongdoing and appears willing to engage with the services in order to better understand and address the dynamics of his abusive behaviour. This is further strengthened by the circumstances of the respondent's arrest in that the respondent voluntarily returned from Dublin Airport and presented himself at the garda station. The sentencing judge also refers to the respondent being a foreign national. Moreover, he referred to the period of offending and although he emphasised that this was not a mitigating factor, he did note that the period of offending was shorter than other cases of this nature.

9 The judge identified a headline sentence of twelve years’ imprisonment. He then went on to impose a sentence often years’ imprisonment, with two suspended, to be imposed concurrently in relation to the three section 4 rapes and the four rape charges, with the remaining counts to be taken into consideration.

Grounds of appeal

10 The appellant puts forward the following grounds of appeal :-

The said learned sentencing judge erred in principle in imposing the said sentences on the respondent in that the said sentences were unduly lenient having regard to the nature, circumstances and gravity of the said offences and, in particular, the said learned sentencing judge, when sentencing the respondent, erred in principle in;

(a) Failing to have any, or any adequate regard to the age of the complainant and failed to properly reflect the complainant's age in assessing the gravity of the offence;

(b) Failing to have any, or any adequate regard to the gravity of the offences and in particular to the fact, that all offences were committed on a child;

(c) erred in principle in setting a headline offence at twelve years’ imprisonment and then imposing a sentence often years’ imprisonment without giving sufficient justification for such reduction and then further suspending two years of the said sentence, again without giving sufficient justification for a further reduction in sentence;

(d) erred in principle by putting excessive weight upon the personal circumstances and mitigating factors raised on behalf of the respondent and inadequate weight to the aggravating factors;

(e) erred in principle by failing to give due and adequate weight to the gross breach of trust of the complainant;

(f) failing to impose sentences of imprisonment on the respondent which reflected the seriousness of the offences, and the circumstances in which the offences were committed;

(g) erred in principle in imposing sentences of imprisonment on the respondent to 10 years’ imprisonment, while suspending the final two years of the said sentence, and backdating the said sentences to the 18th January 2019, and the imposition of the said sentences is a clear divergence from the norm of sentences which could properly have been imposed upon the respondent having regard to the details of the offences and the maximum penalties available and the personal circumstances of the respondent, and thereby justifies the intervention of this honourable Court;

Grounds a & b:

(a) Failing to have any, or any adequate regard to the age of the complainant and failed to properly reflect the complainant's age in assessing the gravity of the offence;

(b) Failing to have any, or any adequate regard to the gravity of the offences and in particular to the fact, that all offences were committed on a child;

Submissions of the parties

11 The appellant submits that the sentencing judge failed to have adequate regard to the vulnerability of the complainant who was entitled to feel safe in the presence of her uncle and whose childhood was essentially ruined by this repeated behaviour which was, in and of itself, at the upper end of any scale of sexual misbehaviour. The appellant refers to the following passage from O'Malley in Sentencing Law and Practice (2nd Ed.) 2006 at p 92:-

“…in order to comply with the principle of proportionality, a court must first make a judgement on the relative gravity of the offence, bearing in mind that maximum sentences should be reserved for the worst cases. A clear distinction must also be drawn between the gravity of the offence and the personal circumstances of the offender. This raises the question of which factors go to gravity and which are more commonly assessed as offender related circumstances. Offence gravity is commonly assessed by reference to culpability, harm and offender behaviour. When assessing culpability, it is generally useful to have regard to the nature of the mens rea which the offender is found, or appears, to have had when committing the act constituting the crime. Intention to cause harm clearly represents the highest level of culpability and the more harm intended, the greater the blameworthiness. Recklessness, in the sense of a conscious disregard of an unjustifiable risk, comes next and again the greater and more dangerous the risk, the greater the culpability…”

12 In terms of culpability and intent, the appellant submits that the respondent was at the higher end of the scale as envisaged by Professor O'Malley and his resultant culpability was more marked. In support of this the appellant reiterates the age difference between the respondent and the complainant, some thirty years and his various attempts to insinuate that the complainant had initiated the sexual activity.

13 The appellant further submits that the sentencing judge did not give sufficient weight to the impact of the offending on the complainant. The appellant submits that the sentencing judge was obliged to take into account the concerns of the complainant's parents as well as the evidence of the Garda as regards the lasting effects of the offending on the complainant....