DPP v R.K.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 07 July 2016
• Neutral Citation: [2016] IECA 208
• Docket Number: 209/15
• Court: Court of Appeal (Ireland)
• Date: 07 July 2016

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

R.K.

Appellant

[2016] IECA 208

Birmingham J.

209/15

THE COURT OF APPEAL

Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, on the 22nd June, 2015, pleaded guilty to one count of rape contrary to s. 4 of the Criminal Law Rape (Amendment) Act 1990 and one count of sexual assault. The sentence hearing took place on the 20th July, 2015, when the court heard that the pleas were entered on a full fact basis and reflected sexual abuse of the victim between the 1st July, 2009, and the 26th November, 2012. The victim was six years of age when the abuse commenced and nine years of age when the abuse ended. On the 27th July, 2015, the Central Criminal Court sentenced the appellant to eighteen years imprisonment with the final five years suspended in respect of the rape count and a concurrent sentence of thirteen years imprisonment imposed on the sexual assault count. The appellant appealed to the Court of Appeal against the severity of those sentences contending that the sentence imposed on the rape count, and indeed on the sexual assault count, involved an error in principle in that it was out of line with, and so disproportionate to, the normal range of sentences applicable for similar type offences, referring to The People (DPP) v Ryan?[2014] IECCA 11. The appellant submitted that the starting sentence of eighteen years was significantly out of line with sentences imposed in similar cases. He also said that the judge departed from the norm in an unacceptable manner by making the entirety of any reduction from the sentence of eighteen years that he was prepared to contemplate conditional.

Held by Birmingham J that a starting sentence of fifteen years, rather than one of eighteen years, was more in keeping with sentences that have been imposed in other cases. Birmingham J held that it would have been more appropriate to reduce the sentence of fifteen years first considered, to one of twelve years in order to take account of the plea of guilty as well as the other factors that were in favour of the accused such as his relative youth, family circumstances and work history. In addition, given his professed determination to avail of all the services that would be available to him while serving his sentence of imprisonment, Birmingham J held that it would have been appropriate to consider suspending a portion of the remaining sentence to incentivise rehabilitation. Accordingly, in the Court?s view an appropriate sentence would be one of twelve years imprisonment with the final two years suspended. Birmingham J held that the sentence for the sexual assault should be less than that imposed for the rape offense. Accordingly, the Court substituted a sentence of eight years imprisonment in respect of the sexual assault count. The Court also proposed to provide for two years post release supervision.

Birmingham J held that the Court would allow the appeal and substitute the sentences indicated for those imposed in the Central Criminal Court.

Appeal allowed.

JUDGMENT of the Court delivered on the 7th day of July 2016 by Mr. Justice Birmingham

1 This is an appeal against the severity of sentences imposed in the Central Criminal Court on the 27th July, 2015. The sentences appealed are a sentence of eighteen years imprisonment with the final five years suspended in respect of a rape count and a concurrent sentence of thirteen years imprisonment imposed on a sexual assault count.

2 On Monday the 22nd June, 2015, the appellant pleaded guilty to one count of rape contrary to s. 4 of the Criminal Law Rape (Amendment) Act 1990 and one count of sexual assault. The sentence hearing took place on the 20th July, 2015, when the court heard that the pleas were entered on a full fact basis and reflected sexual abuse of the victim between the 1st July, 2009, and the 26th November, 2012. The victim was six years of age when the abuse commenced and nine years of age when the abuse ended.

3 The abuse included acts of compelling the victim to masturbate the appellant, oral penetration with the appellant ejaculating in the victim's mouth, digital penetration of the vagina, on one occasion the digital penetration caused bleeding, and anal penetration by the penis, which occurred some nine or ten times. The abuser was 18 years of age when the abuse commenced and 21 years of age when it ended. It is possible to date the ending of the abuse, because on the 26th November, 2012, the victim's brother referred to the abuse that was occurring when in a car with the victim's aunt, setting in train an inquiry. It should be explained that the abuser was in a relationship with the victim's mother, and it was this relationship that brought him into contact with the young victim.

4 The court heard of the very significant impact that this abuse has had on the victim. She attended a psychotherapist weekly for a year and thereafter fortnightly. At the time of the sentence hearing, she was again seeing the psychotherapist weekly, and it was expected that she would continue to do so indefinitely. The victim is still afraid to sleep in the dark for fear of her abuser appearing again. She felt ?angry, dirty, sad, terrified, guilty and nervous?. She was afraid that her abuser would kill her if he found out that she had told on him. The court was told that the abuse had serious effects on the victim's academic achievements and had stalled her emotional maturity. She displayed symptoms of post traumatic stress disorder.

5 The appellant had a number of previous convictions for theft, cultivation of cannabis and possession of drugs as well as convictions under the Road Traffic Acts, but he had no conviction that was in any sense comparable.

6 When imposing sentence, the judge outlined the aggravating factors as:-

(i) The horrendous breach of trust.

(ii) The very young age of the victim.

(iii) The progressive nature and regularity of abuse.

(iv) The profound and continuing effect on the victim.

7 In the course of his sentencing remarks of the 27th July, 2015, having previously put the matter back to allow time for consideration, the judge commented that he saw the plea of guilty as being the only significant mitigating factor, though he added that significant weight had to be attached to it. The judge felt that because of the nature of the crime, the appellant was not entitled, as he put it, to a straight forward discount but rather only to a conditional one, whereby the appellant would serve part of the sentence back in the community. He then proceeded to impose a sentence of eighteen years on the rape count, as the headline sentence, but suspended the final five years subject to conditions.

8 The appellant contends that the sentence imposed on the rape count, and indeed on the sexual assault count, involved an error in principle in that it is out of line with, and so disproportionate to, the normal range of sentences applicable for similar type offences.

9 The grounds set out in the notice of appeal were as follows:-

1. The learned trial judge erred in principle in respect of both counts in imposing sentences which are excessive and disproportionate in all the circumstances.

2. The learned trial judge erred in principle in considering the appropriate sentence, absent mitigating factors, to be one of eighteen years imprisonment on count 1.

3. The learned trial judge erred in principle in failing to place the sentence as regards count 3 [sexual assault count] on the scale, thereby arriving at a particular sentence before considering mitigation.

4. The learned trial judge erred in principle in failing to make any deduction for mitigating factors as regards count 3.

5. The learned trial judge erred in principle in respect of both counts in imposing sentences that are inconsistent with and out of kilter with the normal range of sentences for similar type offences.

6. The learned trial judge failed to have due regard to the mitigating factors and/or failed to correctly balance the mitigating factors against the severity of the offences namely:

(a) the guilty plea by the appellant;

(b)...