DPP v S.L.
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] IECA 222 |
| Docket Number | Record Number: 177/20 |
[2021] IECA 222
Birmingham P.
Edwards J.
Kennedy J.
Record Number: 177/20
THE COURT OF APPEAL
JUDGMENT of the Court delivered (electronically) on the 30 th day of July 2021 by Ms. Justice Kennedy.
. This is an appeal against sentence. On the 28 th July 2020 the appellant received an effective sentence of six years and nine months with the final nine months suspended on terms in respect of three counts, namely, a count of sexual assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended, a count of distribution of child pornography contrary to section 5 of the Child Trafficking and Pornography Act 1998 and a count of production of child pornography contrary to section 5 of the Child Trafficking and Pornography Act 1998. A further count of possession was taken into consideration.
. On the 11 th April 2016, members of an Garda Síochána executed a search warrant in relation to an individual residing in Co. Donegal. Among the items seized was a tablet which contained communications with another individual who was subsequently identified as the appellant. These communications included images and video recordings shared by the appellant which depicted the injured party in the bathroom. The appellant had filmed the injured party by means of a spy camera which he had hidden in the bathroom for this purpose. Skype text conversations relating to pornographic material followed, the nature of which was obscene and depraved.
. On foot of this discovery a search warrant was issued in respect of the appellant's house and a further quantity of child pornography (which depicted persons other than the injured party) was discovered and forms the basis of the possession of child pornography offence.
. Following the search, the injured party was interviewed by a specialist interviewer and the allegation regarding sexual assault came to light. The injured party described an occasion on which the appellant, who was in a relationship with the injured party's mother and resided with her, was home alone with the injured party. Under the pretext of treating the injured party's eczema, he touched the injured party inappropriately along the chest and bottom area. This occurred when the injured party was between the ages of 11 and 12 and forms the basis of the count concerning sexual assault.
. Subsequent to that assault, the appellant obtained and placed a hidden camera in the shared bathroom of the house and filmed the injured party in the bathroom and while undressing to take a shower. The productions of those recordings and their subsequent distribution form the basis of the remaining two counts to which the appellant pleaded guilty.
. The appellant was born in 1970. He has no previous convictions. The Court heard evidence that shortly after Gardaí conducted the search of his house, the appellant began a therapy programme with One in Four and he participated in the after-care programme. At the time of sentencing the appellant was attending counselling with Eileen Finnegan, Forensic Psychotherapist, Systemic/Family therapist, who established a specialist forensic therapeutic intervention service. Ms. Finnegan prepared a psychological report for the court below. This report outlined that the appellant was assessed as being at low risk of re-offending, having been assessed at moderate risk previously in 2016.
. In terms of the count of sexual assault, the sentencing judge referred to the following aggravating factors: that the appellant was aware of his predilection but did not remove himself from the situation, the age differentiation between the parties, the skin on skin touching, that he was a trusted adult in locus parentis at times and a confidant for the child and he assaulted the injured party at a vulnerable time when he was alone with the child in the family home. The sentencing judge placed the offending at the lower end of the mid-range and identified a headline sentence of four years.
. In respect of the count of production, the judge noted that this represented a continuation of the sexual abuse of the injured party and a continuation of an abuse of his position of trust. In respect of both counts of production and distribution the sentencing judge identified the aggravating factors to be the relationship between the appellant and the victim, the planning and the premeditation that took place, the active involvement and the nature of the production. The Court also referred to Skype conversations between the appellant and a third party which accompanied the distribution of the pornographic material. These conversations highlighted the abhorrent nature of the offending, violating a young child, for the perverse sexual gratification of the appellant. The offending was placed at the upper mid-level and headline sentences of nine years were identified.
. In respect of mitigation on the appellant's part, the sentencing judge refers to the appellant's engagement with therapeutic services, the plea of guilty, his previous good character, the fact that he engaged in therapy for a period of four years in an effort to rehabilitate and that this has reduced the likelihood of re-offending to low risk and that he has gained insight and expressed remorse and shame, his loss of company of his family and friends and the social stigma attached to this offending, his loss of business, as he was self-employed and his work history, his cooperation with Tusla, that the numbers of videos and images were not in the higher amounts or numbers which might often be seen before this Court and that he will be placed on the sex offenders register.
. The trial judge reduced the sentences as follows: a sentence of three years for the sexual assault and sentences of six years and nine months in respect of the counts of production and distribution, with all sentences to run concurrently. In order to account for the prospect of rehabilitation the final nine months of the sentence were suspended on terms.
. The appellant puts forward the following grounds of appeal: It is contended that the trial judge:-
-
(1) Erred by identifying excessive headline sentences in respect of each count and in particular, erred in assessing the gravity of offending.
-
(2) Erred in assessing the level of mitigation to be afforded to the accused. In particular, the learned trial judge failed to take account of, adequately or at all, the personal circumstances of the accused and the principle of rehabilitation in determining the level of credit to be afforded in mitigation.
-
(3) Further, or in the alternative, erred in imposing a final sentence which was excessive in all the circumstances of the case. In that regard, the learned trial judge did not have any, or adequate, regard to the principle of totality in determining the sentences imposed.
. The appellant takes issue with the trial judge's characterisation of the counts as constituting a “progression of offending”. While there may be a factual nexus between the sexual assault and the counts of production and distribution, there was no further sexual contact between the appellant and the injured party after the sexual assault occurred.
. The appellant submits that the sentences imposed in respect of the counts of production and distribution represent a departure from the sentencing norms given the factors present which include the low quantity of recordings and the nature of the recordings. The appellant notes that the trial judge referred to inter alia, ( The People (DPP) v Cathal Donnelly The Irish Times, 21st March 2013) and The People (DPP) v. McC [2003] 3 IR 609 in sentencing but it is submitted that the nature of the offences in those cases are of a more serious nature and should be distinguished from the facts of the instant case.
. The appellant further argues that whilst the Court was entitled to have regard to the Skype messages as an aggravating factor, that feature alone was not sufficient to bring the offences into the upper-mid range and as such the headline sentence of nine years was excessive.
. The appellant submits that there was strong evidence before the Court that the appellant had taken significant action to understand his wrongdoing and a comprehensive report was put before the Court. In light of such, the appellant argues that the trial judge failed to take sufficient account of the principle of rehabilitation. The appellant's action in seeking treatment pre-charge was an unusual feature of the case and one which warranted further prioritisation of the rehabilitation principle and credit in mitigation. The appellant refers to the following passage from The People (DPP) v. O'Byrne [2013] IECCA 93 which, while concerned with the offence of possession, is nevertheless instructive:-
“Since the offence of possession of child pornography is often the reflection of the proclivities and appetites of the offender, then any professional assessment of the offender's attitude and state of mind is valuable. In particular, any assessment of the extent to which the offender genuinely recognises that his conduct is wrong and is willing to engage in...
To continue reading
Request your trial