DPP v TMcD
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 25 February 2020 |
| Neutral Citation | [2020] IECA 44 |
| Date | 25 February 2020 |
| Docket Number | Record Number 7/18 |
| Court | Court of Appeal (Ireland) |
[2020] IECA 44
Edwards J.
McCarthy J.
Kennedy J.
Record Number 7/18
THE COURT OF APPEAL
This is an appeal against sentence. The appellant was found guilty of a count of rape contrary to s.4 of the Criminal Justice Rape Amendment Act, 1990, a count of sexual assault contrary to s.2 of the Criminal Law Rape Amendment Act, 1990 and a count of robbery contrary to s.14 of the Criminal Justice Theft and Fraud Offences Act, 2001.
The background to the offence is set out in the ex tempore judgment delivered earlier on today's date.
The judge placed the offending at the upper middle end of the offending and identified the following mitigation;-
“A number of matters have been considered in mitigation. In my view, a grave factor is the youth or the relative youth of the accused at the time of this offending. He was just in around fifteen and a half years of age and he had no previous convictions relevant to the rape and sexual assault charges. His background was from an undoubtedly deprived background and he suffered a lack of education leaving school at the age of thirteen. There was a degree of cooperation at the trial and certainly the agreement of a number of witnesses shortened the trial very considerably, and that was not in just ease of the court in the administration of justice but must have been in ease of the victim as well. Finally, there was mention of his cooperation with the Gardaí, he did cooperate to every extent except admitting the offence. “One matter I should say that was mentioned in the victim impact statement was his lack of remorse in his fight in the case. He had every right to fight the case and plead not guilty and I am not holding that in the least against him”.
The sentencing judge then proceeded to impose a sentence of eight years' imprisonment with the final eighteen months suspended on terms in respect of the count of rape. In respect of the count of sexual assault a term of three years' imprisonment was imposed and a sentence of eighteen months' imprisonment in respect of the count of robbery all to run concurrently.
The appellant submits that the trial judge failed to adequately consider the youth of the appellant as a mitigating factor. While it is accepted that the trial judge did refer to the fact of the appellant's youth, the sentence handed down was disproportionate to the appellant's age and mental development.
The appellant refers to The People (DPP) v. JH [2017] IECA 206 where the Court reduced the headline sentence from one of four years' imprisonment to two and a half years. This case concerned an appellant who was convicted of two counts of section 4 rape and two counts of sexual assault. The offences were perpetrated when the appellant was fifteen years old but he was not sentenced until he was twenty-three years old. The Court noted as follows:-
“What is relevant in the context of sentencing is the fact that the appellant, although now an adult, committed the crimes in question when he was fifteen years old. A sentencing court is required to access the offender's level of maturity at the time of the commission of the offence and to accordingly access his culpability as of that time.”
The appellant also refers to the following cases: The People (DPP) v. McCormack [2000] 4 IR 356, where the Court of Criminal Appeal allowed a severity appeal of a sentence of three years' imprisonment with the final two years unconditionally suspended. The defendant had pleaded guilty to aggravated sexual assault and attempted rape. The defendant was 17 years old at the time and his youth was one of the main considerations in sentencing.
In The People (DPP) v. Elders [2014] IECA 6 the Court of Appeal suspended the final twelve months of a five-year sentence, where one of the considerations of the Court was the youth of the appellant where he was seventeen at the time of commission of a particularly serious assault.
In The People (DPP) v. MH [2014] IECA 19 the Court of Appeal reduced a nine-year sentence with the final three years suspended to one of seven years with the final three suspended for a young man who had over a period of years had seriously and repeatedly sexually abused a young female relation. In that case, the appellant had commenced his sexual abuse when his cousin was six years of age and he was twelve, it continued until he was eighteen and she was twelve, culminating in a vaginal rape after the appellant had reached his age of majority
The appellant submits that there is a difficulty in assessing the mitigation afforded by the sentencing judge as he failed to identify a headline sentence before applying the mitigating factors.
The respondent submits that it is clear that the trial judge clearly took into account the appellant's youth, lack of education and deprived background.
In relation to the cases referred to by the appellant, the respondent notes that The People (DPP) v. JH [2017] IECA 206; The People (DPP) v. McCormack [2000] 4 IR and The People (DPP) v. MH [2014] IECA 19 all involved appellants who had entered guilty...
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