DPP v S. L
| Jurisdiction | Ireland |
| Judge | Edwards J |
| Judgment Date | 02 July 2020 |
| Neutral Citation | [2020] IECA 177 |
| Docket Number | Record No: 257/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 02 July 2020 |
[2020] IECA 177
Birmingham P.
Edwards J.
McCarthy J.
Record No: 257/2017
THE COURT OF APPEAL
Sentencing – Sexual offences – Severity of sentences – Appellant seeking to appeal against sentences – Whether sentences were unduly severe
Facts: The appellant, on the 19th of October 2017, was convicted by a jury of eleven counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law (Amendment) Act 1935, being counts 1, 2, 3, 4, 5, 6, 14, 15, 16, 17,18 and 25 respectively (the first group); eight counts of indecent assault contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981, being counts 7, 8, 19, 20, 21, 22, 23 and 24 respectively (the second group); and one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, being count 26 on the indictment. On the 27th of October 2017, the appellant was sentenced to twenty months imprisonment in respect of each of the offences in the first group with the exception of count 25. The appellant received a sentence of sixteen months imprisonment on count 25. The appellant was also sentenced to seven years imprisonment in respect of each of the offences in the second group. Finally, the appellant was sentenced to three years and six months imprisonment on count 26. All sentences were to run concurrently. The appellant appealed to the Court of Appeal against the severity of the sentences imposed upon him for the offences in the second group. He also appealed against the severity of the sentence imposed on him in respect of count 26. The appellant submitted that a sentence of seven years imprisonment was disproportionate and excessive for the offences in the second group. In response, the respondent, the Director of Public Prosecutions, maintained that the sentence imposed was proportionate and within the margin of appreciation available to the sentencing judge. It was further maintained that the sentence imposed by the sentencing judge was proportionate and accurately weighed the aggravating factors and mitigating factors in the matter.
Held by the Court that, in circumstances where the sentencing judge did not opt for consecutive sentencing, but opted instead for concurrent sentences in all instances, it was particularly important that the sentences for the second group (i.e., the longest sentences) should have adequately reflected the gravity of the offending conduct involved. The Court was satisfied that the sentences imposed for the offences in the second group did adequately reflect the gravity of the offending conduct involved, that there was no error on the part of the sentencing judge and that the sentences ultimately imposed were both just and appropriate.
The Court held that the appeal would be dismissed.
Appeal dismissed.
On the 19 th of October 2017 the appellant was convicted by a jury of eleven counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law (Amendment) Act 1935 (“the Act of 1935”), being counts no's 1, 2, 3, 4, 5, 6, 14, 15, 16, 17, 18 and 25 respectively (“the first group”); eight counts of indecent assault contrary to common law and as provided for by s.10 of the Criminal Law (Rape) Act, 1981 (“the Act of 1981”), being counts no's 7, 8, 19, 20, 21, 22, 23 and 24 respectively (“the second group”); and one count of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, being count no 26 on the indictment.
On the 27 th of October 2017 the appellant was sentenced to twenty months imprisonment in respect of each of the offences in the first group with the exception of count no 25. The appellant received a sentence of sixteen months imprisonment on count no 25. The appellant was also sentenced to seven years imprisonment in respect of each of the offences in the second group. Finally, the appellant was sentenced to three years and six months imprisonment on count no 26. All sentences were to run concurrently.
The appellant has appealed against the severity of the sentences imposed upon him for the offences in the second group, namely the eight concurrent sentences of seven years imprisonment imposed on counts 7, 8, 19, 20, 21, 22, 23 and 24, respectively. He also appeals against the severity of the sentence of three years and six months imprisonment imposed on him in respect of count no 26.
This Court has already delivered a judgment on the 8 th of May2020 in respect of an appeal by the appellant against his convictions, which appeal was dismissed. That judgment contains a detailed review of the evidence, and the present judgment should be read in conjunction with that judgment. The twenty-one counts of which the appellant was convicted related to offences involving three complainants, all of whom were sisters and neighbours of the appellant. Their father was a first cousin of the appellant, and the appellant lived within 200 yards of the complainants' home. Nineteen of the twenty-one counts related to complainant “F”, one count related to complainant “M” and one count related to complainant “E”.
There is no appeal against sentence in respect of count no 25 which related to the complainant “M”., and we need not be concerned with the evidence in so far as it related to “M”. There is, however, an appeal against sentence in respect of count no 26 which related to the complainant “E”. The remainder of the appeals against sentence relate to eight of the nineteen sentences imposed for offences in respect of the complainant “F”, i.e., those in the second group. To appreciate why this arises it is necessary to state that while all of the counts of which the appellant was convicted relating to offences against “F” charged indecent assault of a female contrary to common law, eleven of those charges (i.e. those in the first group) were in respect of incidents pre-dating the coming into effect of s.10 of the Act of 1981. The maximum sentence available in respect of those offences in the first group was one of two years imprisonment, as provided for by s.6 of the Act of 1935. However, s. 10 of the Act of 1981 repealed s.6 of the Act of 1935 with effect from the 6 th of June 1981, and further provided for a new maximum sentence of ten years imprisonment for the offence of indecent assault (whether of a male or a female) contrary to common law. This new maximum sentence applied to the second group of offences relating to “F”, in respect of which the concurrent sentences of seven years now appealed against were imposed.
With respect to the evidence relating to the offences involving “F”, the reader is referred to this Court's earlier judgment. It is sufficient for the purposes of this judgment to summarise by saying that in qualitative terms the nature of the indecent assaults, which were all very similar, was essentially the same whether occurring before and after the coming into effect of s.10 of the Act of 1981. in that they all involved instances of genital touching of an initially pre-teenage, and latterly teenage, girl inside her clothing, with penetration of her vagina by the appellant (mostly digitally, but in one instance with his tongue), and coerced masturbation of the appellant by the victim, frequently to the point of ejaculation. The offences involving “F” all took place on one or other of the farm properties owned by the appellant's family or the victim's family.
The evidence was that all three complainants were members of a large family comprising their parents and nine children who lived in a farmhouse in a rural part of Ireland. M was the oldest, having been bom in 1966, F was born in 1967 and E was the youngest in the family and was bom in 1982.
The appellant was born in 1955. His father had died when he was quite young. At all times material to these proceedings he lived in a farmhouse with his widowed mother and four siblings. They were immediate neighbours to the complainants' family.
It was common theme in the evidence of all three complainants that their father and the appellant's father had always had a close relationship and that they were more like brothers than first...
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