DPP v T.v (No. 2)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] IECA 323 |
| Docket Number | Record No. 222/2015 |
| Court | Court of Appeal (Ireland) |
| Date | 07 December 2017 |
[2017] IECA 323
THE COURT OF APPEAL
Mahon J.
Mahon J.
Edwards J.
Hedigan J.
Record No. 222/2015
Crime & sentencing – Sexual offences – Multiple counts of rape – Appeal against severity of sentence
Facts: The appellant had been convicted of 25 counts of rape, relating to offences carried out against his daughter when she was between 7 to 11 years old. He now appealed against his sentence, arguing that mitigating factors such as his relatively clean record and foreign nationality were not taken into account.
Held by the Court that the appeal would be dismissed. Whilst the sentence was lengthy and one reserved for the most serious offences, the repeated rapes carried out against the appellant’s daughter justified the sentence handed down. As the offences could have had a sentence of life imprisonment, it could not be said that the application of the sentencing judge’s discretion was flawed.
The appellant was convicted by a jury at the Central Criminal Court of twenty five sexual offences. Eighteen were of rape contrary to common law and as provided for in s. 48 of the Offences Against the Person Act 1981 and s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. Seven were of rape contrary to s. 4(1) of the Criminal Law (Rape) (Amendment) Act 1990. Concurrent sentences of fifteen years were imposed in respect of each of the counts, to date from the 18th June 2015. He has now appealed against sentence, his conviction appeal having been dismissed by this Court in June 2017.
The appellant is a Lithuanian national aged thirty six years. He and his family have lived in Ireland since mid 2004 including his wife, whom he married in 2001, and his children one of whom, his daughter, VV, is the complainant. She was born on the 31st August 2001, and is now aged approximately fifteen years.
In April 2012, when VV was approximately eleven years old, she disclosed to a friend that she was being sexually assaulted by her father. A teacher in the complainant's school was informed, and the HSE was notified within days. An investigation was then undertaken by the HSE and the gardaí. The complainant was immediately removed from the family home. She was medically examined at the sexual assault treatment unit in Galway. The gardaí searched the family home under a search warrant and certain items were seized, including two vibrators. The complainant was interviewed on a number of occasions by appropriately trained specialist interviewers. The appellant was arrested on the 15th May 2012 and was interviewed on three occasions while in custody on the same date. Further statements were taken from the complainant and from her foster mother.
The offences occurred between 2008 and 2012 when the complainant was between seven and eleven years old. She alleged that the appellant routinely raped her on a weekly basis with most offences taking place in the family car.
The grounds of appeal against sentence are summarised in the appellant's written submissions in the following terms:-
• It is respectfully submitted that the learned sentencing judge imposed a sentence of excessive duration upon the appellant. The appellant has a number of previous convictions relating to road traffic offences. None of the previous convictions relate to violence or sexual assault. The appellant is a foreign national who differences in language and culture serve to isolate him from the rest of the prison population. This isolation will result in an increased severity of his sentence. During the course of the trial of the appellant there was no allegation of unusual violence or intentional humiliation of the complainant. These issues taken together impart that the learned trial judge deviated from the normal practice of sentencing and imposed a sentence of excessive duration upon the appellant.
In the course of his sentencing judgment the learned sentencing judge specifically excluded the existence of previous road traffic convictions to be anything other than a minimal factor in this particular case. He also acknowledged that there would be an added difficulty for the appellant as a foreign national in serving a lengthy prison sentence in this country, but he observed that:-
‘The extent to which a sentence might be less where an non national is concerned is far more limited than was once the case, because we now live in a society where there are people, many people from different cultures and different backgrounds and different nationalities…’
The victim impact statement which was read to the Court below was powerful and very clearly identified the very serious and long lasting effect on the complainant of the offences committed by the appellant, her father. She referred to her whole childhood having been taken from her and how that childhood was destroyed by fear and a sense of powerlessness....
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DPP v E.R
...of the judge's discretion, it was not erroneously excessive and no error in principle was identified. 27 In The People (DPP) v. TV [2017] IECA 323, the appellant received a sentence of fifteen years in relation to 25 counts of rape. The complainant was the daughter of the appellant and she ......