DPP v T.McC.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 20 March 2023 |
| Neutral Citation | [2023] IECA 82 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 131/2021 |
[2023] IECA 82
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 131/2021
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) on the 20 th day of March 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against severity of sentence. The appellant was convicted of two counts on a six-count indictment, namely, count 3; rape and count 5; sexual assault. A sentence of four years' imprisonment was imposed on count 5 with count 3 taken into consideration.
The appellant is the older brother of the complainant. The offending, the subject of count 3, occurred between 1995 and 1998, when the appellant was aged between 12 and 14 years old and the complainant was aged between 8 and 10 years old in a bedroom of the family home. The appellant called her to his bedroom, pushed her onto a bed and raped her. She pleaded with him to stop. This incident was interrupted by the complainant's older sister who grabbed her from the bed and took her out of the room.
The sexual assault occurred between March 2004 and November 2004, when the appellant was 21 years of age and the complainant was 16 years old in the sitting room of the family home. The complainant was asleep on the couch and awoke to the appellant pulling her pants down to her knees. She believed he was attempting to do more and having managed to fight him off, she left the house and made a disclosure to a friend.
The sentencing judge identified the most serious aggravating factors as the breach of trust and the complainant's young age at the time of the offending.
In terms of mitigation, the judge had regard to the appellant's young age at the time of the rape offence, the time that had elapsed between the commission of the offences and the appellant's trial, the absence of previous convictions, that he has led a blame free life since the offending and that he is a good and loyal partner and a good father.
The judge nominated a headline sentence of seven years' imprisonment on count 5, considering this to be the more serious count, given what had previously occurred, and then on foot of mitigation, he reduced the pre-mitigation sentence to one of four years' imprisonment. Count 3 was taken into consideration.
The appellant appeals the severity of his sentence on seven grounds as follows:-
“1. That the learned Trial Judge failed to give adequate weight to the mitigating factors including not giving adequate credit for the subsequent good character of the accused as evidenced by the absence of previous or subsequent convictions and complaints.
2. That the learned Trial Judge failed to take into account the obvious evidence of self rehabilitation that had consequently occurred in the years between the commission of the offences and the date of sentencing.
3. That the learned Trial Judge erred in principle and in law in failing to take proper account of the lapse of time between the commission of the offences and the date of sentencing.
4. That the learned Trial Judge erred in principle and in law in imposing a four year custodial sentence in respect of Count 5 as such was unduly harsh and not proportionate in the circumstances.
5. That the learned Trial Judge erred in principle and in law in failing to properly assess the accused's good work history and that the accused was at low risk of reoffending.
6. That the learned Trial Judge erred in principle and law in failing to give sufficient weight to the accused's age at the time of the offences.
7. That the learned Trial Judge erred in principle and in law in failing to take into account whether the accused was under the influence of an older sibling at the times of the offences.”
Reliance is placed by the appellant on the judgment of McKechnie J in People (DPP) v Begley [2013] 2 IR 188 which sets out general sentencing principles. These principles were summarised by the Supreme Court in Ellis v Ministry for Justice and Equality [2019] IESC 30 as follows—
“Turning to the essential principles of sentencing law, as set out by the Court of Criminal Appeal in D.P.P. v Begley cited above, at a level of generality they require consideration of the following four matters to determine an appropriate sentence: (1) the gravity of the offence; (2) the circumstances in which it was committed; (3) the personal situation of the accused and (4) mitigating factors.”
People (DPP) v TD [2021] IECA 289 is cited as authority for the proposition that a sentencing court is required to consider the youth and likely immaturity of an offender when assessing his culpability. Reference is also made to People (DPP) v JH [2017] IECA 206 in which case it was held that a sentencing court is required to assess an offender's level of maturity at the time of the commission of...
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