DPP v S. A

JudgeMs. Justice Isobel Kennedy
Judgment Date16 November 2020
Neutral Citation[2020] IECA 311
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 214/18
Date16 November 2020

[2020] IECA 311

Birmingham P.

Whelan J.

Kennedy J.

Record Number: 214/18


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

Facts: The appellant, on the 2nd April 2018, following a 42-day trial, was convicted in the Central Criminal Court on three counts of rape and twenty counts of sexual assault. On the 29th June 2018, the appellant received a sentence of fourteen years’ imprisonment with the final two years suspended on terms. The appellant appealed to the Court of Appeal against sentence on the grounds that the sentencing judge erred in law and in principle by: (a) imposing sentences which were excessive and disproportionate in all the circumstances in respect of the counts of rape and in considering the appropriate sentence, absent mitigating factors, to be one of fourteen years imprisonment on counts 1, 6 and 24 (to be served concurrently) with two years suspended; (b) failing to have due regard to the mitigating factors and/or failing to correctly balance the mitigating factors against the severity of the offences; (c) attributing the background evidence to be an aggravating factor; and (d) characterising a legitimate defence point as an aggravating factor. The appellant contended that the sentence imposed was excessive in all the circumstances and placed the most emphasis on Ground (d).

Held by the Court that as the appellant did not wish to avail of the Better Lives Programme for Sexual Offenders, in terms of the order of the Court, the final two years of the sentence would not, in reality be suspended. The Court held that the objective of the sentencing judge in suspending the final two years of the sentence to take account of mitigation could not be fulfilled. The Court held that s. 99 of the Criminal Justice Act 2006, as amended, does not permit of a precondition being fulfilled prior to the operation period of the suspended sentence coming into force. In the circumstances the Court found an error in the structure of the sentence and consequently, it would intervene to a limited extent, and that was to amend the order by removing the requirement that the appellant engage with the Better Lives Programme.

The Court held that, in lieu of that condition, it would suspend the final two years of the sentence on the mandatory condition, that is the appellant enter into a bond before the Governor or Assistant Governor of the prison in the sum of €100.00 to keep the peace and be of good behaviour for the period of his imprisonment and for 2 years following his release from the sentences imposed. The Court would also impose the following additional conditions: (1) that the appellant remains under the supervision of the probation services for a period of two years and that he complies with the directions from the probation services to include the attendance on any programme as directed by the probation services; (2) that the appellant keep away from and have no contact with the complainants in perpetuity. The Court also considered the need for post-release supervision and directed that the appellant undergo post-release supervision for a period of four years from the date of his release on the following conditions: (a) that he remain under probation supervision and comply with all directions from that service; (b) that he provide his address to the probation services; and (c) that he notify any change of address to the probation services 7 days before any change takes place.

Appeal allowed.

JUDGMENT of the Court delivered on the 16th day of November 2020 by Ms. Justice Isobel Kennedy .

This is an appeal against sentence. On the 2nd April 2018, following a 42-day trial, the appellant was convicted in the Central Criminal Court on three counts of rape and twenty counts of sexual assault. The trial involved two complainants, who were sisters. CE and JE, who were ten and twelve years respectively, at the time of the alleged offences, which related to the period 3rd December 2010 to 11th March 2011. On the 29 th June 2018, the appellant received a sentence of fourteen years' imprisonment with the final two years suspended on terms.


CE and JE and their two younger siblings, are the children of RE. They lived with their mother at various addresses in England from birth. The evidence at trial was that RE lived in somewhat chaotic and reduced circumstances. She was known to social services in the UK in the context of parenting issues.


In 2010, the family were living in the Surrey area. CE, in her evidence, described their flat as “a mouse hole”. At some stage in 2010, RE renewed acquaintance with the appellant who had been a long-time friend of her brother. The appellant would later intimate to Gardaí that he was a professional gambler and he gave the appearance of being a person of some financial substance, owning a valuable, substantial detached house in West Sussex. He was separated from his wife and the mother of his two children.


In 2010, when RE was experiencing difficulties with social services, the appellant invited her and her four children to come and live with him at his home. He provided a luxurious and lavish lifestyle, fee-paying schools, horse riding, stabling horses for them and furnishing a large number of expensive presents. In effect, the lives of the children in terms of material comfort were transformed. In late 2010, social services had concerns in relation to SA's involvement with the children, particularly concerns about personal grooming of the older girls such as bathing, etc.


In November 2010, social services had requested that RE and SA agree to a contract of arrangements which would involve the giving of undertakings relating to non-involvement of SA in the personal physical grooming of CE and JE.


According to CE, SA collected her from school one day, told her that he and her mother did not intend to agree to the conditions and that they were going to Ireland on holidays. At very short notice, the appellant. RE and her four children travelled to Ireland on 19th November 2010. They stayed at a number of hotels in the greater Dublin area and all expenses were paid by the appellant. On around 3rd December 2010, SA, after viewing properties in the County Louth area, rented a substantial detached house on its own grounds with gated security and stabling for horses.


The weather in December 2010 was unusually severe. This partly explained why RE was absent from the rented house for periods. On one occasion, SA, despite the very poor road conditions, travelled to Dublin in a taxi with CE for the purpose of retrieving a car left by RE at Dublin Airport. The evidence at trial was that the weather was so poor that SA and CE ultimately stayed at the Hilton Hotel in Dublin Airport that night, sharing a bedroom. CE told the jury at trial that during the night, SA raped and sexually assaulted her. Counts 1 – 5 related to these incidents.


CE described falling asleep watching a pay-per-view movie on television when she became aware that he was sexually assaulting her and that he then raped her. She subsequently fell back asleep. She told the jury that the accused later told her that her mother had communicated her whereabouts to her English grandmother and relatives, and that as a result of their concerns, a request was made by the UK police to Coolock Gardaí to check on the appellant. The evidence was that Gardaí were not aware of any concerns about sexual impropriety, and simply went to the hotel to check on their presence. After the Gardaí left, SA once more sexually assaulted her.


CE's evidence was that following the incidents in the Hilton Hotel, that SA thereafter raped her in their rented home, and that he sexually assaulted her on a number of occasions in that locations until the time when they were taken into care by Gardaí/Tusla on 13th March 2011.


CE's evidence was that she, her sister JE, and her other siblings all slept on the first floor of this substantial residence and that SA had his bedroom on the same floor which was beside the girls' bedrooms, while their mother occupied the second upper floor of the house. CE disclosed the abuse some 18 days after CE went into foster care and led to Gardaí and Tulsa being notified. The nature of the sexual assault involved touching her vagina area and digital penetration.


This led to JE being interviewed by specialist child interviewers where she ultimately described incidents of sexually abuse and rape by the appellant at the rented accommodation.


The sexual offending in respect of both victims occurred over a period of time between the 3 rd December 2010 and the 10 th March 2011.


Sometime in the Spring of 2011 the appellant travelled to South America and took up residence in Chile. He was not apprehended until he entered the United States of America in the summer of 2014 for the purpose of attending a gambling convention in Florida. His extradition was sought from the United States. He did not contest it, and on 24th July 2014, he was arrested following his extradition.


There were two earlier trial dates in 2016 and 2017, but the trial did not proceed. The appellant was convicted in the Central Criminal Court on 2 nd April 2018. He maintains his innocence following his conviction and sentence.

The sentence

On the 26 th June 2018 the appellant received a sentence of fourteen years' imprisonment with the final two years suspended on terms in respect of the three counts of rape and five years' imprisonment in respect of the sexual assault counts. All sentences are concurrent. The final two years of the sentence were suspended on the usual condition. The order of the Court also states:-

“The portion of the sentence suspended of 2...

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1 cases
  • The People (At the Suit of the DPP) v Richard O'Mara
    • Ireland
    • Court of Appeal (Ireland)
    • 22 March 2022
    ...not necessarily require intervention on appeal having regard to all of the circumstances. Reference is made to The People (DPP) v S.A. [2020] IECA 311, where the sentencing court had specifically noted that during the trial it was alleged that the complainant had conspired to make false all......

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