DPP v T.McC.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 14 November 2022 |
| Neutral Citation | [2022] IECA 268 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 131/2021 |
[2022] IECA 268
The President.
Kennedy J.
Donnelly J.
Record Number: 131/2021
THE COURT OF APPEAL
Crime and sentencing - Rape and sexual assault - Appeal against the severity of sentence - Whether the sentence was proportionate or lenient - Age of appellant at time of offences
Facts: Between 1995 and 1998, the appellant (aged between 12 and 14 years old) raped the complainant, his younger sister (aged between 8 and 10 years old). The appellant had called the complainant into his bedroom in their family home, pushed her onto the bed and raped her. Between March and November 2005, the appellant (21 years old) sexually assaulted the complainant (16 years old) whilst she was asleep on the couch in their family home. The appellant was convicted of two counts on a six-count indictment, specifically for count 3; rape and count 5; sexual assault. The appellant appealed the severity of his four-year prison sentence before The Court of Appeal on 20th March 2023. The appellant’s grounds of appeal consisted of assertions of the failure of the Trial judge to take into account his subsequent good character and good work history, along with a low risk of reoffending. Further to, the appellant contended that the Trial judge erred in imposing a sentence which was unduly harsh and not proportionate in the circumstances. In contradistinction, the Respondent took the position that the appellant’s age at the time of offence was already taken into account by the sentencing judge; the Respondent also asserted that the mitigating factor of the appellant’s good character and the low chance of reoffending, had also impacted the sentencing decision.
Held: It was held by the Court that the mitigating factors, specifically the age of the appellant at the time of offence, was already acknowledged by the reduction of the notional sentence to 4 years imprisonment. The appellant had made reference to cases such as the People (DPP) v JH [2017] IECA 206 and People (DPP) v TD [2021] IECA 289, in aid to his assertion that the judge had erred principle and in law by failing to give weight to the accused’s age. The judge contended that in the event of rape, that the appellant would not have been in any doubt to his wrongdoing, notwithstanding his age. It was acknowledged that the trial judge had properly identified the breach of trust and the emotional distress of the complainant as aggravating factors. The judge reaffirmed that the Trial judge had taken the appropriate course of nominating the reduced 4 year sentence and noted that the judge would have been aware that the appellant presented a conspicuous low risk of reoffending. The Court was unpersuaded that the trial judge had failed to take into account mitigating or aggravating factors in respect to the offences. The conclusion was reached that the sentence was proportionate and just. Subsequently, the appeal against the severity of the sentence was dismissed.
JUDGMENT of the Court delivered on the 14th day of November 2022 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. The appellant was convicted of two counts on a six count indictment, namely, count 3, a count of rape and count 5, a count of sexual assault. The dates on the indictment regarding the count of rape concerned a date unknown between the 24th November 1995 and 17th January 1998, when the appellant was aged between 12 and 14 years old. This appeal concerns the conviction on count 3 only, with the focus on the doctrine of doli incapax, specifically, whether the respondent had adduced evidence to rebut the presumption of incapacity to commit a crime given the appellant's age. It was accepted by the respondent at trial that the doctrine applied.
The appellant initially appealed his conviction on the following sole ground:
“The learned Trial Judge erred in law and in fact in including the facts concerned with Counts 1 and 2 in his charge to the Jury despite having previously withdrawn those counts from the jury.”
However, it transpired at oral hearing that the appellant was seeking to rely on an additional ground; that the judge erred in failing to direct a verdict of not guilty on count 3 on the indictment, and, following application to which there was no opposition, he was permitted by this Court to argue the additional ground. Two issues are for consideration: firstly, that the judge erred in failing to grant a direction of not guilty on count 3 and, secondly, that he erred in directing the jury that it could rely on the facts surrounding counts 1 and 2 when considering the doctrine of doli incapax referable to count 3. Although in truth, if the trial judge was correct in leaving count 3 for the jury's consideration, then it seems to us that part of that consideration would have to be informed by what occurred relating to counts 1 and 2. Therefore, the focus of this judgment rests with the refusal by the trial judge of the application to direct count 3. In order to place that issue in context, it is necessary to outline briefly the relevant material relating to counts 1 and 2.
The appellant is the older brother of the complainant. The offending related to counts 1, 2 and 3 is alleged to have occurred between the 24th November 1995 and the 17th January 1998.
Counts 1 and 2 relate to an incident in the bathroom of the family home. An older brother, approximately 16 years old or thereabouts entered the bathroom first with the appellant coming in after him. The complainant described incidents of a sexual nature with both brothers participating. The relevant portion of the evidence for the purpose of this appeal is as follows:
“A. They both left the room, the bathroom, together, and I just cried, I think, for ages afterwards and just left the bathroom and went to bed.
Q. And was anything said?
A. Nothing. No, nothing.
Q. And when they came in and started doing us (sic) what was your reaction?
A. They never said anything anytime. Like, the only time [older brother] after said shush or stop was when I was crying downstairs. They never said anything that day either in the bathroom. They literately (sic) didn't even speak. It was evil.
Q. How were you during all of it?
A. At the time, I don't — I don't think there was emotion at the time in the middle of doing it, that there was none. Afterwards, I don't know, I cried and I cried. I just wanted someone to come home.”
She then gave evidence regarding the next incident, the subject of count 3, which related to an incident in the boys' bedroom. The complainant described that the appellant called her upstairs, and once in the bedroom he pushed her down onto the bed, pulled her legs and tried to penetrate her with his penis, hurting her. The complainant pleaded with the appellant to stop. Her evidence in this respect is as follows:
“A. He went to put his penis inside my vagina, and I know it hurt. I remember crying, stop, please stop, because it was really, really sore.
Q. Yes?
A. And I remember just saying, “Please stop.”
At this point, it appears the incident was interrupted by the complainant's older sister who grabbed her from the bed, and the complainant recalled that the appellant said: “it's not, it's not, it's not”, being, if accepted by the jury, evidence of the appellant's reaction to the interruption.
On the 28th April 2021, an application was made by counsel for the appellant to have counts 1, 2 and 3 withdrawn from the jury. Initially, the relevant time frame for each count was between the 24th November 1995 and the 11th January 2001 but the indictment was amended so that the timeframe preferred was between the 24th November 1995 and the 17th January 1998, the end date reflecting that the child of an older sister had not been born when the events the subject of the counts occurred.
Counsel for the appellant applied for a direction on counts 1, 2 and 3 on the indictment on the basis of insufficient evidence to rebut the presumption of incapacity to commit the offences alleged. The common law position at the time of the allegations was that a child between the ages of 7 and 14 was presumed to be incapable of having the capacity to commit a criminal offence but that that presumption could be rebutted. Whilst counts 1, 2 and 3 referred to the offending occurring on a date unknown when the appellant was aged between 12 and 14 years, and over 11 months of that was at a time when the appellant was 14 years old, the respondent was not in a position to prove that the offending occurred when the appellant was 14 years and therefore the Director accepted that the doctrine of doli incapax applied.
The trial judge found that counts 1 and 2 should be taken together, given that they share the same factual matrix, and that count 3 be considered separately. He granted a direction on counts 1 and 2 on the basis that there was no evidence before the jury to enable them to determine the issue of capacity on the part of the appellant aside from the conduct constituting the offending itself.
However, the judge refused the application concerning count 3 as he determined that the jury were entitled, if they accepted the evidence, to take account of three strands of evidence to enable them to determine whether the appellant held the necessary capacity regarding that offence. Those three strands included the complainant's distress in the aftermath of the incidents in the bathroom; (which incidents were the subject of counts 1 and 2), that the complainant was called to the privacy of the bedroom by the appellant, and so the jury could infer an element of planning on his part and thirdly, the appellant's reaction to his older sister's arrival during the alleged incident, from which the...
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