DPP v S. O'S
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 28 July 2020 |
| Neutral Citation | [2020] IECA 327 |
| Docket Number | Record Number: 229/18 |
| Court | Court of Appeal (Ireland) |
| Date | 28 July 2020 |
[2020] IECA 327
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 229/18
THE COURT OF APPEAL
This is an appeal against sentence. The appellant was convicted in Dublin Circuit Criminal Court of 24 counts of sexual assault relating to N.O and one count of sexual assault relating to T.O. The appellant received an ultimate sentence of 8 years’ imprisonment with the final year suspended on terms.
The complainants in this case are sisters. The appellant is the partner of the complainants’ aunt, effectively their uncle. In respect of N.O, she was born in Spring 1998. The counts in respect of N.O relate to sexual assaults perpetrated between January 2005 and October 2010 when the complainant was between 6 and 12 years old. N.O. gave evidence to the effect that she was often sent to stay with her aunt and the appellant, between 3-4 times a week, although the frequency decreased as she got older. On nights that the complainant stayed over she would sleep top and toe with her cousin. During the night the appellant would come into the bedroom and he would pull the complainant towards him, he would put his hands down her pyjamas, into her underwear and then into her vagina. The complainant described this as happening every night she stayed over. N.O. gave evidence of the last incident which occurred on the night of her brother's Debs in 2010. She had been minding the appellant's son in his flat in Dublin. The complainant believed that nothing would happen as she heard the appellant get into bed, but he then proceeded to get out of his bed and tell her that he loved her more than his partner and he put his hand into her pyjamas and into her vagina. This led to the complainant telling her brother and sister what had occurred.
In relation to T.O., she gave evidence of an incident which occurred while she was staying at her grandmother's house when she was between 6 and 7 years of age. At the time, the appellant, his partner and their son were living in the house on the top floor. There was a bedroom with a double and a single bed. The appellant and his partner were in the double bed and the complainant was at the end of the single bed with her cousin. The complainant gave evidence that during the night she felt the appellant coming towards her, he got into her bed and put his hand down her underwear and touched her vagina. The complainant stated that she got up and told the appellant she didn't like what he was doing, and he told her to come back and that he wouldn't do it again. The complainant gave evidence that she told no one at the time because she didn't understand what had happened and she eventually told NO on the night of her brother's Debs.
A formal complaint was made to Gardaí in 2015. The trial against the appellant commenced on 12th February 2018 in respect of 33 counts. On 14th February 2018, the jury was discharged, and the trial re-commenced on 15th February 2018. At the close of the trial, counts 1-8 were withdrawn from the jury and verdicts of guilty were returned in respect of the remaining counts.
The sentencing judge made the following remarks in identifying the aggravating factors:-
“In advance of addressing the presence of mitigation, I must locate on the scale of gravity where these offences lie. There are two victims here, and the offending was over a decade, committed by a person of dominance abusing his position of trust. In theory, this man has no previous convictions, but since 2000/2002, he has been offending, with the first sexual assault being committed against T.O. in the incident that was identified on Count 33 in the indictment. Thereafter, he offended between 2005 and 2010, and I accept that there has been no substantial delay in terms of historic abuse cases standards, but his dominance with regard to N.O., and his betrayal and substantial breach of trust over all of those years, only serves to further aggravate the facts of this case. Additionally, the youth of both young women also serves to seriously aggravate the circumstances, along with a pattern of behaviour of exploitation and opportunism, where these children were sleeping at night, in bed, and he went into the room, often where his own child was present, and abused them.
The division of the former extended family unit is another aggravating factor, and bearing all the aggravating factors into account, the headline sentence will be one of nine years. He was entitled to contest the charges but has lost the potential mitigation in that respect.”
In terms of mitigation, the sentencing judge observed that the appellant has no previous convictions although he had been committing the offences in question since 2000. The trial judge also made reference to the appellant's family circumstances, his work history and his productivity while in custody.
Having identified a headline sentence of nine years the sentencing judge imposed sentences of seven years in respect of Counts 9 to 31. In respect of Count 33, six years’ imprisonment was imposed and in respect of Count 32, eight years with the final year suspended was imposed, all to run concurrently. The sentences were imposed from the date of sentence.
The appellant puts forward the following nine grounds of appeal:-
i. The sentence imposed by the learned trial judge was excessive in all the circumstances.
ii. The learned trial judge erred in law or in principle in failing to impose a sentence proportionate to both the offence and to the personal circumstances of the Appellant.
iii. The learned trial judge erred in law in placing significance on and identifying inappropriate aggravating factors.
iv. The learned trial judge erred in law and in fact and failed to place adequate significance on the mitigating factors in the case.
v. The sentencing judge erred in law in assessing the gravity of the offence at as being at the high end for offences of this nature.
vi. The sentencing judge erred in law in failing to take any/or adequate account of the fact that the appellant had no previous convictions.
vii. The learned trial judge erred in law in failing adequately or at all to set out the basis upon which the court viewed 8 years imprisonment as appropriate in the circumstances of the case before it.
viii. The court fell into error in not back dating the Applicant's sentence to the date of incarceration.
ix. The learned trial judge erred in law in failing to give adequate consideration to the appellant's personal circumstances.
Although there are nine grounds of appeal, the parties have made submissions under four main headings, which are laid out below.
The appellant submits that the headline sentence of nine years was too high in the circumstances. In particular the appellant points to the following factors: the offending did not involve oral abuse, anal abuse or abuse with the penis or other degradations, the frequency of the offending against N.O. lessened over time, there were no threats or use of violence and in relation to T.O., it was a once-off incident and did not involve any digital penetration.
The appellant refers to the judgment of Charleton J. in The People (DPP) v. FE [2019] IESC 85 wherein he provides guidelines for sentencing in rape cases and it is submitted that by analogy, a headline sentence of nine years, in effect, places the offending in the more serious category of rape cases.
In relation to Count 33, the appellant submits that the sentencing judge erred in handing down a sentence of six years as the timeframe for the count in question, that being July 2000 to July 2002, straddled the commencement date of the Sex Offenders Act, 2001.
The appellant further submits that the sentencing judge erred in describing the offending in respect of Count 33 as involving the digital penetration of the vagina when she stated that the appellant “put his hand down and inside her underwear and put his hand into her vagina.” In fact the act in question was the rubbing or touching of the vagina.
The respondent submits that the headline sentence of nine years is in keeping with the twelve-year headline sentence indicated by the sentencing court in The People (DPP) v. SA [2018] IECA 348. In SA sentences of nine years’ imprisonment, but with the final 18 months suspended, were imposed in the Circuit Court in respect of a number of counts of sexual assault. The appellant was the uncle and godfather of the complainant, who was aged between 15 and 17 at the time of offending. The offending was very frequent and involved oral sex. The appeal was dismissed. While the offending in SA was more serious than the offending in the present case, the offending spanned a period of just two years and ended when the complainant turned 17. In the current case, where a lower headline sentence was identified, there were two complainants of much younger years, with the offending spanning a significantly longer period.
The respondent refers to The People (DPP) v. KC [2016] IECA 278 where a sentence of nine years’ imprisonment was imposed by the Circuit Court in respect of indecent assault offences, following a contested trial. The offences had been committed during the period 1983 and 1987 when the complainant was aged between 7 and 11 years. The appellant was the female complainant's brother. The appellant argued that the sentence was excessive. The appeal was dismissed. While the offending in KC differs from the nature of offending in the current case, in that KC involved oral sex and the rubbing of the appellant's penis against the complainant's vagina area, parallels...
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