DPP v Stewart

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 November 2016
• Neutral Citation: [2016] IECA 369
• Date: 21 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Record No 86 CJA/16 Bill No CN 38/14

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN:

THE PEOPLE OF THE SUIT DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

-AND-

EDMUND STEWART

RESPONDENT

[2016] IECA 369

Record No 86 CJA/16

Bill No CN 38/14

THE COURT OF APPEAL

Sentencing – Sexual assault – Undue leniency – Applicant seeking a review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Stewart, pleaded guilty before Cavan Circuit Criminal Court to one count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The respondent was sentenced to three years imprisonment, the entirety of which was conditionally suspended for a period of four years on the respondent entering into a bond in the sum of €500 to keep the peace and be of good behaviour. The applicant, the DPP, appealed to the Court of Appeal seeking a review of the sentence pursuant to s. 2 of the Criminal Justice Act 1993 on the grounds that the said sentence was unduly lenient. It was complained firstly that the sentencing judge erred in placing the offences at the lower end of the scale. In doing so, the applicant said, the sentencing judge failed to adequately take into account the significant aggravating factor in the case that the respondent took advantage of a young woman who was in a vulnerable state; he also returned several times to the victim, and had been careful to desist when he had thought someone in the vicinity might see him indicating a clear awareness on his part that what he was doing was wrong. Secondly, it was complained that the sentencing judge attached undue weight to the mitigating factors. Thirdly, it was complained that the case did not in any circumstances merit a wholly suspended sentence and it was suggested that this represented a substantial deviation from the norm and an error of principle in itself.

Held by Edwards J that the trial judge was in error in his approach to the assessment of the seriousness of the offence. Edwards J held that the trial judge fell into error in believing that this was an offence that could be dealt with by means of a wholly suspended sentence. The Court considered that this was a case that on any view of it required the imposition of a custodial sentence to be actually served at least in part. Edwards J held that the sentence imposed was in the circumstances unduly lenient and outside of the sentencing judge’s legitimate margin of appreciation. The Court therefore quashed the sentence imposed in the court below and proceeded to sentence the respondent afresh.

Edwards J held that, applying R v Sergeant [1975] 60 CAR to the circumstances of this case, it was necessary to sentence the respondent to a term of imprisonment. The sentence that the Court would impose was one of three years imprisonment with two year and three months suspended on the respondent entering into a bond to keep the peace and be of good behaviour for a period of three years and the amount of the bond to be €500.

Appeal allowed.

Judgment of the Court (ex tempore) delivered the 21st day of November, 2016 by Mr. Justice Edwards

Introduction:

1 In this case the respondent pleaded guilty before Cavan Circuit Criminal Court to one count of sexual assault, contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990.

2 The respondent was sentenced to three years imprisonment, the entirety of which was conditionally suspended for a period of four years on the respondent entering into a bond in the sum of €500 to keep the peace and be of good behaviour.

3 The applicant now seeks a review of the sentence pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) on the grounds that the said sentence was unduly lenient.

The Facts

4 The respondent, who is resident in Northern Ireland, is a member of a cycling club. On the 23rd of June 2012 he was part of a group of cyclists who had crossed the border on a sight seeing trip and who were booked in to stay the night at the Farnham Arms Hotel in Cavan. They arrived at approximately 4pm on that date and later that evening spent time drinking in a public house in Cavan town before returning to their hotel where they continued drinking.

5 In the early hours of the 24th of June 2012 the Respondent was in the hotel foyer with another cyclist, Mr. Louis Finnegan. A woman, S. P., had drink consumed to the extent that she was asleep or certainly not conscious. She was sitting slouched on the couch in the hotel foyer. The man working behind the desk in the foyer asked the Respondent and Mr. Finnegan to move into the residents' bar. Mr. Finnegan put his hand on the woman's shoulder to try to wake her but it was not possible because she was not responding. Mr. Finnegan then moved into the residents' bar and was sitting at a table facing the door looking out into the foyer.

6 Mr Finnegan described seeing movement from the couch where the girl in the foyer had been asleep. He noticed the respondent was beside her. When the respondent came back into the bar, he asked him what he had done to the girl. The respondent had then put two fingers of his right hand up to his nose and sniffed them and he stretched his hand towards Mr Finnegan and asked Mr Finnegan if he wished to smell them. He made the same gesture to a Mr Tommy Lawlor and asked him did he want to ‘smell her’. The respondent then stuck his index finger into his mouth and sucked it.

7 Mr Finnegan, who was ostensibly disgusted with what he had observed, reported the matter the Gardaí who commenced an investigation. Unbeknownst to the respondent the incident had been captured on CCTV, and gardaí quickly discovered this and took possession of the relevant footage.

8 Sergeant Harten of Cavan Garda Station described to the sentencing court what the footage showed in the following terms:

‘At 4.08 a.m., S.P. entered the hotel foyer and is greeted by her sister. She sits down on a couch in the foyer and falls asleep. She has her legs crossed and she is slumped to her right on the couch, it's like a two seater couch. She slumps slightly to her right. At 5.17 a.m., the Accused, Edmund Stewart, sits down beside her on her right hand side. He then gets up and he uncrosses her legs. She had the legs crossed. He uncrosses her legs and he sits on a low table which is directly in front of her with the table in the foyer. He can be seeing looking around as in watching for any persons approaching. He opens her legs slightly and then he opens them wider. She has a dress on her and at this time then he appears to be disturbed by something off camera and he stops and he looks around and he then stands up and he places his right hand up between her legs and he then sits down back down beside her on the couch and then, so she is sitting on his left, so he places his left hand right up between her legs. Her skirt or dress is pulled right up at this point. At 5.21 a.m., the Accused leaves and she remains in the same position on the couch with her legs apart and her dress up. At 5.28 a.m., he returns, the victim is still in the same position. He stands over her with his right hand around her upper thigh and he lifts up her up and he puts her lying down on the couch. So, she is now lying on the couch and he sits beside her. At this stage he has his back partially to the cameras so you can't really see what he is doing but he appears to open her legs again at that point. Somebody approaches and he gets up but he remains in her immediate vicinity. At 5.29 a.m., when the coast is clear, he returns to the couch and he lifts up one of her legs again and he spreads them wide. Someone then approaches and he gets up and he leaves the foyer. At this point, the victim is lying on the couch with her legs wide apart and again her dress is fully pulled up. It is believed that he went to the toilet, at that time. He returns to the foyer shortly afterwards; and there is another man with him, it is one of the cycling party and a coat is secured from the porter in the hotel and its placed over her, at that point. That's at 5.32 a.m. At 5.35 a.m. members of the victim's family arrive and they try to wake her without success, she is completely comatose. At 5.38 a.m., the Accused he appears to notice the CCTV camera in the corner, inside the door and he walks directly towards it and looks up at it. Now, he subsequently the identified himself from that CCTV, as did other witnesses, that it was Edmund Stewart, the Accused and at 5.43 a.m., members of the victim's family take her from the foyer to bed.’

9 The respondent had returned to Northern Ireland shortly after the incident and it was necessary for Gardaí to travel to Northern Ireland to interview him. He was co-operative to the extent of making himself available for interview at Grosvenor Road Police Station in Belfast, and in the course of being interviewed admitted that he had touched S.P's upper thigh but denied touching her vagina. He was subsequently returned to this jurisdiction on foot of a European arrest warrant in order to be charged and tried for sexual assault. He consented...