DPP v W.M.

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date03 July 2018
Neutral Citation[2018] IECA 226
Docket NumberRecord No: 203/2013
CourtCourt of Appeal (Ireland)
Date03 July 2018

[2018] IECA 226

THE COURT OF APPEAL

Edwards J.

Edwards J.

Hedigan J.

McCarthy J.

Record No: 203/2013

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
W.M.
Appellant

Sentencing – Aggravated sexual assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, on the 8th of July 2013, was convicted by a ten member jury of the offences of aggravated sexual assault, contrary to s. 3(1) of the Criminal Law (Rape) (Amendment) Act 1990, and causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, respectively. On the 29th of July 2013, he was sentenced on each count to 13 years imprisonment, both sentences to run concurrently. The sentences were to take effect from the 11th of January 2012. The appellant appealed to the Court of Appeal against his conviction and sentences. On the 15th of May 2018, the Court upheld the appellant’s conviction on all grounds. On the 3rd of July 2018, a differently constituted Court heard submissions on the appellant’s appeal against the severity of his sentences. The appellant submitted that: (i) the sentence imposed by the sentencing judge was excessive in all the circumstances; (ii) the sentencing judge erred in law or in principle in failing to impose a sentence proportionate to the offences.

Held by the Court that this case was within the wholly exceptional category of cases outlined in the People (Director of Public Prosecutions) v Fitzgibbon [2014] 2 ILRM 116, i.e., in respect of offences meriting a sentence of 12.5 years and upwards. The Court held that, although this was not strictly speaking a rape case, it was an aggravated sexual assault case of the most egregious sort. The Court found it noteworthy that cases falling into the category of offences attracting “condign sentences”, as described in People (Director of Public Prosecutions) v WD [2008] IR 308, have attracted sentences of between fifteen years and life imprisonment. The Court held that this case, in terms of its gravity, fits comfortably within that category. The Court considered that it would have been open to the sentencing judge to have started at a point higher than he did. His discount of four years from a starting point of seventeen years to reflect mitigation, the most significant feature of which was the age of the appellant, was generous in the Court’s view. The Court considered that the ultimate sentence of thirteen years imprisonment was in fact lenient, although it was within the sentencing judge’s range of discretion.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court ( ex tempore) delivered on the 3rd of July, 2018 by Mr. Justice Edwards
Introduction
1

On the 8th of July 2013, the appellant was convicted by a ten member jury of the offences of aggravated sexual assault, contrary to s. 3(1) of the Criminal Law (Rape) (Amendment) Act 1990, and causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, respectively.

2

On the 29th of July 2013, he was sentenced on each count to 13 years imprisonment, both sentences to run concurrently. The sentences were to take effect from the 11th of January 2012. The appellant now appeals against his conviction and sentences.

3

On the 15th of May 2018, this Court ( per Mahon J, Edwards J, Hedigan J) upheld the appellant's conviction on all grounds. On today's date, the 3rd of July 2018, this differently constituted Court heard submissions on the appellant's appeal against the severity of his sentences. Accordingly, this ex tempore judgment deals with the sentence appeal.

Background facts
4

The case was concerned with an incident that took place some days prior to the 8th of December 2011, at an address in a small village in rural Ireland. The victim in the case was a thirty-three-year-old woman who is an alcoholic and who also had had a drug problem, although she was off drugs at the time of the incident. The victim first encountered the appellant approximately eighteen months prior to the incident. At that time, she was living alone in rented accommodation in the village. On the evening on which she first met the appellant she had been drinking and had lost her keys. The appellant, a resident of the village and sixty-six years of age at the time, came upon her as she was searching for her keys. He was helpful to her, and when it was evident that the keys could not be found, he brought her to his house and let her stay until she managed to get new keys.

5

Thereafter a friendship developed between them, and the victim began to visit the appellant's house regularly. She moved away from the village for a time but eventually returned. Throughout this time she remained friendly with the appellant. Upon her return to the village the victim had nowhere to stay, having given up accommodation she had previously been renting. At the appellant's invitation she moved into his house, and was allowed to sleep on a sofa. The evidence at the sentence hearing was that the appellant ‘had expressed interest in having a child with her and offered her the sum of €10,000 to have a child with him’. Over time the victim and the appellant became sexually intimate. The evidence was that this was due to her feeling trapped in the situation as she had nowhere else to go ‘ with very few friends and very few family outlets within this country’.

6

On the date of the incident forming the subject matter of the charges with which the appellant was ultimately convicted of, the victim was woken from sleep in the middle of the night to find her trousers down. She could feel the appellant's hand inside her vagina. She described the pain as ‘excruciating, worse than the pain of having a baby, and that she thought he was twisting his hand within side her’. The victim began gushing blood from her vagina to the extent that she thought she was haemorrhaging.

7

The evidence, both at trial and at the sentence hearing, was that the victim became progressively more unwell over the succeeding days. Eventually the appellant called the victim's general practitioner on the 7th of December 2011, who made a domiciliary call, and formed the view that the complainant had a significant infection for which she needed hospitalisation. Although the victim was initially reluctant to go to hospital, and resisted the suggestion for a further 24 hours, by the evening of the 8th of December 2011 her condition had deteriorated to the point where the victim was unable to put up further resistance and she was taken to hospital by ambulance.

8

At trial, the jury heard evidence from a Consultant Obstetrician/Gynaecologist who, together with a general surgeon, attended to the victim in the hospital. He told them that she was initially admitted to intensive care in circumstances where he believed her to be suffering from an infection that was most likely intra-abdominal, with a likely build up of pus and fluid in the abdomen. She was taken from intensive care to an operating theatre where the General Surgeon intended to open her abdomen to see where the infection was seated and to clear out any pus and infected fluids found there. The witness was asked to simultaneously examine her from a vaginal or gynaecological point of view. He then described what he and his colleague found in the course of the operation:

‘A. -- to look at the poor girl, when she was on the -- on the operating table I am in a position that I can look at her -- at her bottom end, at her vulva. We noticed that she had unusual burns or -- I'm not quite sure, we weren't able to characterise them really, but her buttocks were -- looked like they had been burnt or, you know, chemical burns, it's hard to know what type of burn, was it flame, fire, heat, water, but nonetheless they looked like burns, they didn't look like anything else. Also down below she was very swollen, but that would be in keeping with somebody that was in intensive care and was very sick. Once I examined inside in the vagina up on the left side of the vagina, very high up in the vagina there was a very long laceration, seven or eight -- or six -- six to seven centimetres long. Tough to kind of quantify length-wise, naturally we don't get out rulers, but that's about the length of it. It was very jagged edged. There was -- and I don't want to, you know, upset people by saying, but it was pouring with pus just coming out of it. And as, you know, it was in a location that was near large blood vessels inside in the middle of her pelvis, and as [the General Surgeon] was doing his end of the procedure we noticed that we could actually make physical contact with each other which should never ever be able to be made, it's impossible.

Q. All right, do you mean you made physical contact?

A. We actually -- our fingers -- he was -- he was cleaning out the debris and the pus and that kind of material and when he got down and he scooped a lot of this stuff out, he was actually able to -- there was a hole from this laceration. It wasn't just a laceration, it's not just a cut; this was a defect; a hole right the way up inside this poor woman up into her abdominal cavity. And --

Q. Am I understanding you, you can touch from her stomach down to her vagina?

A. It should never be able to happen, because there's the uterus, the bladder, the bowel, everything's in the way, but this now is a hole that we're -- that was, you know, we were able to meet up and commented almost immediately that, ‘How is this woman alive?’ And that's not for dramatic purposes, this is what we thought.

Q. Did you examine the edges of the laceration?

A. Yes, as best you can see. As you can understand, it's -- it's up inside the vagina so it's -- it's, you know, as best we could, yes, they were rough edged. You know, again with experience...

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