DPP v Rashid

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 08 May 2019
• Neutral Citation: [2019] IECA 130
• Court: Court of Appeal (Ireland)
• Docket Number: [295/2018]
• Date: 08 May 2019

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

AND

ABDUR RASHID

RESPONDENT

[2019] IECA 130

[295/2018]

THE COURT OF APPEAL

Sentencing – Sexual assault – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Rashid, was found guilty of a single count of sexual assault contrary to common law as provided for by s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s. 37 of the Sex Offenders Act 2001. The respondent was sentenced on 19th November 2019 in the Circuit Criminal Court to eighteen months with the final four months suspended for a period of one year. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking review of sentence on grounds of undue leniency. The appellant submitted the following grounds of appeal in that the sentencing judge erred: (1) in law by setting the headline sentence at 2 years’ imprisonment; (2) in law by not taking sufficient account of the aggravating factors; (3) in law by placing too much weight on the mitigating factors; and (4) in imposing a sentence which did not reflect the seriousness of the offending.

Held by the Court that the trial judge fell into error in fixing the headline sentence at two years. The Court held that the threshold for intervention by the Court was met. The Court thought that this offence fell at the lower half of the middle range for offences of this type, the maximum being 14 years in the case of someone of the victim’s age. The Court thought, accordingly, that the appropriate headline sentence was 5 ½ years’ imprisonment. The Court thought that should be reduced not merely because of the mitigating factors but, in accordance with the jurisprudence of the Court, by virtue of the fact that a higher sentence than that imposed by the trial judge was being imposed. The Court accordingly quashed the order of the Circuit Court. The Court took the view that the post mitigation sentence should be one of 4 ½ years.

The Court held that, in lieu of suspending any portion thereof, it was appropriate that the respondent be subject to post-release supervision. The Court accordingly directed such supervision for a period of two years after his release. The term which the Court would impose upon him in that regard was that he would abide the directions of the probation and welfare services during that period.

Appeal allowed.

JUDGMENT of The Court ( ex tempore) delivered on the 8th day of May, 2019 by Mr. Justice McCarthy

1 This is an application brought by the Director pursuant to s.2 of the Criminal Justice Act, 1993 seeking review of a sentence on grounds of undue leniency.

2 The respondent was found guilty of a single count of sexual assault contrary to common law as provided for by s.2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by section 37 of the Sex Offenders Act, 2001. The respondent was sentenced on November 19th 2019 in the Circuit Criminal Court to eighteen months with the final four months suspended for a period of one year.

3 The offence in this case took place in a Mosque where the respondent was providing religious education to children. The offence occurred when the injured party was six years old. The complainant was attending his class. The nature of the offending consisted of the respondent placing his tongue inside the child's mouth and placing his hands under the tights and underwear of the child and rubbing his fingers outside the child's vagina.

Grounds of Appeal

4 The appellant submits the following grounds of appeal in that the sentencing judge erred:-

(1) In law by setting the headline sentence in this case at 2 years” imprisonment;

(2) in law by not taking sufficient account of the aggravating factors in this case;

(3) in law by placing too much weight on the mitigating factors in this case;

(4) in imposing a sentence which did not reflect the seriousness of the offending.

It seems to us that the grounds of appeal overlap and therefore can be dealt with together.

Submissions

5 The appellant submits that the sentencing judge failed to give sufficient weight to the aggravating factors in this offence. This placed the offending behaviour at an improper point in the spectrum of this offence, and led to an error in law in the assessment of gravity and the setting of a headline figure of two years” imprisonment, absent mitigation. While it is accepted that the contention that ‘ Touching of this nature which is not penetrative is generally deemed to come within the lower end of the scale for abuse of this nature’ is correct, it fails to take into account fully the aggravating factors in this particular case, thereby leading to an error in law.

6 Reference was made to of DPP v M.S [2014] IECA 58, where the accused was convicted after a three-day trial of the sexual assault of a fifteen-year-old girl; the accused was a friend of her father. The assault consisted of rubbing against the victim while she was in bed, kissing the back of her neck, and touching her over her clothing on her breast and groin. Her Victim Impact Report noted that the assault had changed her life forever. At sentencing, the accused accepted what he had done and apologised. The accused was sentenced to three years” imprisonment with the final six months suspended. This Court held that: -

‘ While the court acknowledges that all sexual offences are serious, it is nevertheless this Court's function and obligation to distinguish between different cases and different circumstances. The factor in this case which is of relevance to where the offence ought to lie is the fact that the offence was of very short duration and the appellant touched the victim on the outside of her clothes. The court has considered the submissions in respect of sentence and identifies two years” imprisonment as the starting point’

M.S, with a two year starting point sentence, shares a number of features with the instant case: a breach of trust, non-penetrative touching, a young complainant, and significant victim impact. However, there are also some differences. First, the respondent in the instant case touched his victim inside her underwear, skin to skin. Second, the victim in M.S was fifteen, the complainant in the present case was six years old at the time of the offence. While both cases involved a breach of trust, the breach of trust in the instant case was perpetrated by the respondent while he was in a position of authority, a teacher. The appellant submits that the starting point of placing the offending conduct at the lower end of the scale is an error in law, and that the added aggravating factors leave a court dealing with conduct which is not ‘in the middle end of the low range’.

In DPP v Walsh [2017] IECA 187, this Court noted as follows: -

‘ 13. The assessment of the gravity of an offence involves a consideration of the offender's culpability and the harm done. In assessing culpability the court looks at the generic nature of the offence in terms of: its fundamental ingredients; the range of penalties available to address the various circumstances in which the offence may be committed, the particular circumstances in which the actual offence was committed; whether the offence was committed negligently, recklessly or intentionally; and any case specific circumstances tending to aggravate or mitigate the moral culpability of the offender. In assessing the harm done the court must consider the position of the victim, as well as the requirements of society in terms of the need to deprecate and deter future instances of the offending conduct.

14. We readily acknowledge that that the sexual assault in this case was a once off, and was not premeditated. While it was submitted that it was brief in duration it commenced while the victim was asleep in an intoxicated state such that she was extremely vulnerable. It lasted sufficiently long for her to be undressed by the appellant as she slept so that she was naked from the waist down, for the appellant to place his head between her legs, for the appellant to place the victim's legs over his shoulders and to simulate sexual intercourse with her, and for the appellant to touch the victim's vagina. This was all done in the view and presence of a male third party, who to his shame and discredit failed to intervene, and on that account represented an especial humiliation and degradation of the victim. Moreover it is clear from the terms of the victim's impact statement that she was profoundly traumatised by what was done to her and it continues to significantly blight her life in numerous ways.’

7 There, it was held that the sentencing judge had not erred in setting...