DPP v S.C.

JudgeMs. Justice Isobel Kennedy
Judgment Date19 December 2019
Neutral Citation[2019] IECA 348
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 220/18
Date19 December 2019
- AND -
S. C.

[2019] IECA 348

Edwards J.

Kennedy J.

Donnelly J.

Record Number: 220/18


Sentencing – Rape – Totality principle – Appellant seeking to appeal against sentence – Whether the sentencing judge failed to properly apply the principle of totality

Facts: The appellant was convicted of two counts of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981, one count of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990 and three counts of attempted oral rape contrary to Common Law. The appellant pleaded guilty to four sample counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 as amended, in respect of two further victims. The appellant received a total sentence of 15 years’ imprisonment. He appealed to the Court of Appeal against sentence, contending that the sentencing judge failed to properly apply the principle of totality.

Held by the Court that, despite the sentencing judge’s careful consideration of the case before her and her clear knowledge of the sentencing principles, while the sentence she imposed was within the margin of appreciation, she erred in the manner in which she structured the sentences. Firstly, the Court held that while the judge adjusted the sentences downwards as a result of the pleas of guilty, she failed to adjust the notional sentences concerning the offending relating to each victim separately in light of the general mitigating factors. The Court held that in order to properly adjust the notional sentence in the case of the offending conduct relating to each victim, it was necessary to reduce each notional sentence separately by reference to the mitigating factors present, thus identifying the indicative sentence in each case. Moreover, the Court was satisfied that the judge erred in conflating her determination of the appropriate allowance for the general mitigation, with the application of the totality principle. In the view of the Court, the appropriate course was to identify the notional sentences in each instance, reduce the sentences by virtue of the mitigation present and then, consider the sentences and adjust downwards, if necessary, on application of the totality principle; in other words, apply the three-stage sentencing process. The Court held that the judge did not structure the sentence so as to incentivise the appellant’s rehabilitation on his release from custody.

The Court held that, in view of the structural errors identified, it would, in due course, proceed to re-sentence the appellant. The Court held that the matter would be adjourned in the meantime to enable the appellant to gather material for that purpose.

Appeal allowed.

JUDGMENT of the Court delivered on the 19th day of December 2019 by Ms. Justice Isobel Kennedy .

This is an appeal against sentence. The appellant was convicted of two counts of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, one count of rape contrary to s.4 of the Criminal Law (Rape) Amendment Act, 1990 and three counts of attempted oral rape contrary to Common Law in respect of victim B. The appellant pleaded guilty to four sample counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990 as amended, in respect of two further victims; A and C. The appellant received a total sentence of 15 years’ imprisonment.


The sexual abuse in this case took place within a family unit. The appellant acted as a stepfather towards two of the complainants, who we will call A and B to preserve their anonymity, and is the biological father of the third complainant; C. The abuse came to light in April 2015 when C indicated to a family member that something inappropriate was happening between her and the appellant. This began a chain of events that led to disclosures being made by all three complainants. During this time, the appellant denied any wrongdoing and the matter proceeded to trial. The indictment, which originally contained counts relating to all three girls, was severed and the trial proceeded in February 2018 in respect of B only. The appellant was found guilty of those counts and when the matter came before the Court for sentence on the 19th April 2018, the appellant pleaded guilty to two counts in respect of A and C on a representative basis, with full facts to be given in evidence.


In relation to A, the period of offending was not continuous in her instance and by additional submissions on behalf of the appellant, it was clarified that the periods of offending were from the 1st April 2001 to the 31st October 2003, and from January 2007 until April 2010. She was born in 1992 and was therefore aged between 8 and 11 years and 14 and 18 years during the relevant periods of the offending conduct. The nature of the abuse in her case involved the appellant trying to hug her and kiss her on the lips, trying to put his tongue in her mouth and rubbing his hand over her vagina outside her clothing. On one occasion, when she was ten years old, he pulled down her top in order to look at her developing breasts. When she was 15, she described times when she would bring him up coffee or breakfast in bed at his request, she would lie on the bed beside him, sometimes under and sometimes over the covers and he would hug her and rub his erect penis against her side or back. From the age of 18 she ensured she was never alone with the appellant.


In relation to B, the appellant was found guilty of two counts of rape, one count of oral rape and three counts of attempted oral rape. She was born in 1998. The first incident of rape occurred when B was 13 years old. She accompanied the appellant to their old house to collect some items and they were to stay overnight. On the way, the appellant bought alcohol for himself and for B. She had never had alcohol previously. They were sharing a mattress as the furniture had been taken out of the house. As they were both lying in bed, the appellant began touching her breasts underneath her night clothes, B tried to avoid this contact, but he separated her legs, hurting the muscles at the top of her thighs and forced his head between her legs and tried to lick her vagina. She tried to stop him, but he continued and was able to keep forcing open her legs. He then forced himself upon her and put his penis inside her vagina. She tried to move, and she told him to stop, and that he was hurting her, but he continued, saying “it's fine, it's fine.” Eventually, when she managed to push him away, he became angry and turned over on to his side of the bed. B cried all night and felt sick and disgusted.


The next instance of rape took place when B was in secondary school. The appellant had allowed her to take time off school and they were at home alone. He suggested they watch a film in his room, and he started touching her under her clothing. He retrieved oil from his bedside locker which he put on her and raped her by inserting his penis in her vagina. Afterwards, she was very upset and went into her bedroom crying. She lay on her bed and tried to go to sleep. Due to a breathing issue, she was lying with her mouth open and she opened her eyes to see the appellant standing in front of her wearing only his boxer shorts. He tried to force his penis into her mouth, he appeared to think this was funny and was laughing as he did so. He continued his attempts, pushing harder and hurting her as she turned her head away. The appellant attempted to orally rape B in this fashion on other occasions and on one occasion he succeeded in orally raping her. These events took place when B was 13/14 years old. The period of offending was from 1st December 2011 until the 31st August 2013.


In relation to C, she is the youngest of the three victims, born in 2002, and the appellant's biological daughter. The appellant pleaded guilty to two sample counts of sexual assault on a full-facts basis. She was aged 9 to 11 years old at the time of the offending conduct. She described various instances, recalling one incident in particular; the date when the family had moved house. She recalled eating breakfast and watching TV, she was wearing her pyjamas when the appellant felt her breasts and vagina under her clothing. There were subsequently various incidents when he touched her on the breast area under her clothing while rubbing her leg. She recalled one incident, when he asked her to touch him and he pulled her hands into his boxer shorts and made her touch his penis. She tried to pull away, but she was unable to do so as he was trying to rub her hands on his penis. She described how the incidents became more frequent as time passed. The period of the offending conduct was from 1st August 2011 until the 30th November 2013.


Thus, the offending relating to A extended initially for a period of 2 years and 6 months, then for a period of 3 years and 3 months, concerning B for 2 years and 7 months, and concerning C for 2 years and 3 months. There was a period when the appellant was abusing both B and C for a period of 1 year and 8 months.

The Sentence

In sentencing, the sentencing judge identified headline sentences in respect of each victim: on the sexual assault counts relating to A, where the maximum sentence on one count was 5 years and on the other; 10 years; the judge nominated a pre-mitigation sentence of three years’ imprisonment. On the two rape counts and on the count of s.4 oral rape concerning B, she nominated a heading sentence of 12 years, while on the attempted rape counts, she nominated a sentence of 11 years. On those counts, the maximum sentence is life imprisonment. On the sexual assault counts concerning C, where the maximum sentence was 14 years, she nominated a headline sentence of 4 years. The judge identified the aggravating factors, namely; the nature of the...

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4 cases
  • People (DPP) v Noel McKeon
    • Ireland
    • Court of Appeal (Ireland)
    • 23 July 2021
    ...principle of totality and was within the Judge's margin of appreciation. I. Decision 44 As this Court has said in People (DPP) v. S.C. [2019] IECA 348:- “The essence of the totality principle is that when imposing consecutive sentences, a court should review the aggregate sentence to be imp......
  • DPP v Nevin
    • Ireland
    • Court of Appeal (Ireland)
    • 31 July 2020
    ...relevant convictions and thus aggravate the present offences. Consecutive Sentences. 48 As this Court stated in The People (DPP) v. SC [2019] IECA 348:- “The overarching objective is that the sentence imposed must meet the extent of the offending conduct. This may be achieved by the imposit......
  • The People (At the Suit of the DPP) v Trevor Ormond
    • Ireland
    • Court of Appeal (Ireland)
    • 12 October 2021
    ...the cases may indicate trends but each case must turn on its facts. We refer to what this Court said in The People (DPP) v. S.C. [2019] IECA 348 at para. 58:- “[w]hilst broad guidance may be provided by this Court as to the range of sentences which may be appropriate for certain offences, n......
  • DPP v S.M.
    • Ireland
    • Court of Appeal (Ireland)
    • 24 June 2020
    ...Appeal as being one of the circumstances in which consecutive sentences are appropriate. For example, in The People (DPP) v. S.C. [2019] IECA 348 Kennedy J. also quoted approving from O'Malley as follows: - “Where there, are several victims….courts are now inclined to impose a set of concur......

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