DPP v v T
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 15 April 2021 |
| Neutral Citation | [2021] IECA 117 |
| Docket Number | Record No: 198/2020 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 117
Birmingham P.
Edwards J.
McCarthy J.
Record No: 198/2020
THE COURT OF APPEAL
The matter came before the Central Criminal Court on the 27 th of July, 2020, where the appellant pleaded guilty to one count of defilement of a child between the ages of 15 and 17 contrary to s. 3(1)(a) of the Criminal Law (Sexual Offences) Act, 2006. The appellant was originally charged with a count of rape, but the Director of Public Prosecutions accepted the plea of defilement and entered a nolle prosequi in respect of the rape charge.
The sentencing hearing began on the 19 th of October, 2020, and on the 20 th of October, 2020, the eve of the appellant's 18 th birthday, Judge White sentenced the appellant to 18 months’ detention. The appellant now appeals against the severity of the sentence.
The court heard from Garda Brian Law, who stated that at 2.20 p.m. on the 10 th of August, 2018, he followed a report of a male, J., aggressively banging on the appellant's door, attempting to gain entry. J. approach Garda Law with his girlfriend, the injured party, and alleged that V.T. had carried out unwarranted sexual activity with her the previous night.
Garda Law received a report and an outline of the allegation from the injured party. The injured party was subsequently interviewed on the 19 th of August, 2019, during which she stated that she and J. were out drinking together in an estate in Carrigmore, Tallaght, with the appellant, two other males, and another female. J. and the appellant went to purchase alcohol and returned outside to the group. They drank and smoked a cannabis joint at around 9.30 p.m.
The other female went home, leaving the injured party with the four males. The injured party felt cold and went to retrieve a jacket from her house, accompanied by the males. As they were walking away from the house, three of the males engaged in their own conversation in front, whilst the injured party and the appellant had their own conversation behind. They arrived at a park, where the injured party sat on a bench, and the appellant sat beside her. The injured party described being in a confused state of intoxication, but became conscious of the appellant with his trousers down and penetrating her vagina with his penis. She had one leg up on the bench, and the appellant was holding her hand. The injured party froze and pretended to be asleep while this continued for a few minutes. The appellant then pulled up his trousers and told her to get up, and said that they should go and find J. They then shared a cigarette.
The injured party had given the appellant her telephone, and got him to call J. She then started quickly walking up to the rest of the group. When she met them, she told the appellant to “ fuck off”. The appellant stood there, and she repeated herself, at which point he walked away. The injured party then hugged J. He asked what was wrong with her, at which point she told him what had happened, and proceeded to give further details over the next while.
The appellant was arrested for interview and cautioned on the 1 st of September, 2019. He confirmed during the interview that he attempted sexual activity, that he had put his penis in the vagina of the injured party, that he did not put it all the way in, and that it lasted for around two minutes. He confirmed how he shared a cigarette with the injured party, and their state of intoxication. He confirmed that there was a confrontation.
It was accepted by Garda Law under cross-examination that the appellant pleaded guilty at an early point, and did not seek the disclosure of any counselling notes. It was further accepted that the appellant and the injured party had previously been in a relationship, but that there was no suggestion of sexual activity in the course of such. Garda Law confirmed that neither J. or the injured party had called the gardaí, and that the appellant himself had rang the gardaí to avoid the violent confrontation waiting outside his door. Garda Law agreed that during interview, the appellant did not seem to understand that sexual intercourse had still occurred despite the penetration being only slight, and had to have this explained to him. It was accepted by Garda Law that the appellant had not attempted to separate the injured party from the group and that she had sat on the bench with him consensually, and that the pair conversed quite normally in the immediate aftermath.
The victim prepared an impact statement, in which she stated that she suffered pain and discomfort when using the bathroom following the incident. She received three hepatitis B injections over a three-month period. The injured party describes feeling guilty, ashamed and angry, which has led to further embarrassment, debilitating flashbacks and a diagnosis of anxiety. She developed agoraphobia which has greatly affected her social and academic life to the degree that she failed her Leaving Cert due to low attendance. She said she had missed 160 days of school that year, but the previous year had missed none. She said that she had lost a lot of weight and had developed acne which required medication. The injured party spoke of trust issues arising from the betrayal of a close friend, and this has impacted her other relationships. She is however determined not to let the actions of the appellant impact her life going forward.
The appellant was born on the 21 st of October, 2002, and was 15 years old at the time of the incident. He is 10 days younger than the injured party. He has no previous convictions. He was in employment at the time of sentencing, and began residing with his sister once it became clear that the allegation was being made. His parents had recently separated, and his father then died suddenly shortly before the incident, which appeared to deeply affect the appellant.
After outlining the facts of the case, the sentencing judge noted the conflict in principles between the Children's Act, 2001, and the general principles of sentencing, particularly that under the general principles of sentencing, a headline sentence should be fixed, while under the Children's Act, detention is regarded as a last resort. He noted section 96 of the Act of 2001 which requires a court to have due regard to the best interests of the child and the victim, as well as the protection of society and specific matters relating to the child. The sentencing judge then cited s. 1(42) as allowing the court to impose a detention order, and s. 1(43) as requiring the court to be satisfied that detention is the only suitable response. He then noted that s. 1(56) prohibits the passing of a sentence of imprisonment, even though the appellant would be becoming an adult the following day. The sentencing judge was satisfied that if he was an adult, an appropriate headline sentence would be 5 years.
In terms aggravating factors, the sentencing judge noted that the huge breach of trust and bodily integrity involved, considering the appellant was a close friend, akin to a brother to the injured party. The appellant was aware that she was in the company of her boyfriend at the time. The sentencing judge recounted how badly the victim's education had been affected, as well as her relationships and ability to trust. Not only was the appellant unable to consent due to her vulnerable state, but she was unable to consent in law due to her age. The sentencing judge characterised this as a very serious offence.
Turning to mitigation, the sentencing judge concluded that the appellant's state of intoxication could not be a mitigating factor, but did take into account the following: his young age; his previous good character and lack of previous convictions; his genuine remorse; his low risk of reoffending and his cooperation and admissions; and his plea of guilty. The sentencing judge went so far as to describe the appellant as “ clearly a good young man”, and indicated that the court would take that into consideration.
The sentencing judge acknowledged s. 1(44) of the Act of 2001 which would allow the imposition of a deferred sentence followed by a subsequent suspended sentence, but concluded that to do so would be unduly lenient in the circumstances.
Concluding that a detention order was unavoidable, the sentencing judge was mindful to take into consideration s. 96 of the Act of 2001. The sentencing judge in his approach spoke of the need for the length of the detention period to reflect the significance of such a punishment on a child, and in light of the significant mitigating factors present, arrived at the detention period of 18 months. He did not consider the appellant at risk of future re-offending, and thus imposed no post-release supervision.
The appellant appeals against the severity of his sentence on the following grounds:
(i) The sentencing judge erred in law or in fact in placing the headline sentence at a term of 5-years imprisonment for an adult offender, in circumstances where the headline sentence was excessive.
(ii) The sentencing judge failed to place adequate or sufficient weight upon the fact that the appellant, at the time of his return for trial, had almost attained the age of majority, by virtue of the considerable lapse of time in the processing of his case, due for which he bore no fault. The offending behaviour occurred on the 9 th August 2018 and, although the injured party had been interviewed by specialist interviewers by 19 th August 2018, it was not until 25 th August 2019 that the prosecuting member made contact...
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