DPP v W (N)
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 20 November 2003 |
| Neutral Citation | 2003 WJSC-CCA 4201 |
| Court | Court of Criminal Appeal |
| Date | 20 November 2003 |
2003 WJSC-CCA 4201
COURT OF CRIMINAL APPEAL
Denham J.
Peart J.
Gilligan J.
Citations:
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
SEX OFFENDERS ACT 2001 S37
O'MALLEY SEXUAL OFFENCES LAW POLICY & PUNISHMENT 1996 142
CRIMINAL LAW (AMDT) ACT 1935 S14
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S5
O'MALLEY SENTENCING LAW & PRACTICE 185
DPP V TIERNAN 1988 IR 250
CRIMINAL JUSTICE ACT 1999 S29
DPP V T (J) UNREP KEANE 6.11.1996 1998/15/5565
DPP V T (B) 1996 3 IR 294
G V DPP 1994 1 IR 374
HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 514
Criminal law - Sentencing - Sexual assault - Approach of trial judge - Seven one year consecutive sentences imposed - Whether trial judge erred in method at arriving at total figure of seven years imprisonment - Two separate complainants - Whether appropriate to impose consecutive sentences in relation to each complainant - Mitigating factors - Weight to be attached thereto when reducing specified maximum sentence.
the appellant had been sentenced to one year each in respect of counts 6, 10, 14, 16 and 24, for sexual assault on one individual and one year each in respect to counts 4 and 21 for sexual assault on a second individual, each of the seven sentences to run consecutively, on an indictment containing 25 counts of sexual assault in the Circuit Court. The applicant submitted that the trial judge had erred in principle in imposing consecutive sentences in respect of each of the offences to which he had pleaded guilty and in failing to give due weight to mitigating factors such as the fact that he pleaded guilty, his previous good record, his expression of remorse and his employment record.
Held by the Court in allowing the appeal and substituting a sentence of three and a half years in respect of counts 6, 10, 14, 16 and 24 to run concurrently vis-à-vis each other and three and a half years each in respect of counts 4 and 21 to run concurrently vis-à-vis each other but consecutively with respect to the five concurrent sentences for sexual assault on the first individual: 1. that there was no error in principle by the trial judge in the overall length of the sentence of seven years but that there was an error in principle in the method by which the trial judge reached the total figure of seven years; 2. that in the consideration of sentence one commences with the maximum, which in this case was five years for each count on the indictment, as the appropriate sentence and discounts that because of mitigating factors and that the appropriate discount for a plea of guilty and the fact that the applicant had no previous convictions was eighteen months; 3. that there was judicial discretion within which it was appropriate to determine that the sentences in relation to the two complainants be served consecutively; 4. that, considering the “totality principle”, the sentence of seven years did not render such sentence unjust.
20th day of November, 2003 by Denham J.
1. This is an application for leave to appeal against sentence by W.N., the applicant, hereinafter referred to as the applicant.
2. On the 26th March, 2003 Roscommon Circuit Criminal Court sentenced the applicant, for the offence of sexual assault (on M.D.), being counts 4, 6, 10, 14, 16, to one year on each count, and for the sexual assault (on A.D.), being counts no. 21 and 24, to one year on each count, the sentences to run consecutively, being a total of 7 years imprisonment.
3. The applicant was before Roscommon Circuit Criminal Court on an indictment containing 25 counts. The relevant counts were as follows:
" Count No. 4"
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1st day of August, 1997 and the 30 th day of September, 1997 both dates inclusive at… in the county of Roscommon sexually assaulted M.D. a female person.
Count No. 6
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1 st day of October, 1997 and the 31 st day of December, 1997 both dates inclusive at… in the county of Roscommon sexually assaulted M.D. a female person.
Count No. 10
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1 st day of April, 1998 and the 30 th day of June, 1998 both dates inclusive at…in the county of Roscommon sexually assaulted M.D. a female person.
Count No. 14
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1 st day of October, 1998 and the 31 st day of December, 1998 both dates inclusive at…in the county of Roscommon sexually assaulted M.D. a female person.
Count No. 16
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particular of Offence
W.N., on a date unknown between the 1 st day of January, 1999 and the 31 st day of March, 1999 both dates inclusive at… in the county of Roscommon sexually assaulted M.D. a female person.
Count No. 21
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1 st day of January, 1993 and the 30 th day of April, 1993 both dates inclusive at…in the county of Roscommon sexually assaulted A.D. a female person.
Count No. 24
Statement of Offence
Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990as amended by section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
W.N., on a date unknown between the 1 st day of January, 1994 and the 30th day of April, 1994 both dates inclusive at…in the county of Roscommon sexually assaulted A.D. a female person.
4. These are serious offences. The facts were set out by Roscommon Circuit Criminal Court (His Hon. Judge Anthony Kennedy) when sentencing on the 26th March, 2003. The transcript of the proceedings, at p. 2, record the findings of fact of the trial judge and the sentences imposed by the court as follows:
"The intervention by defence counsel in the opening speech of prosecuting counsel was understandable at the time, in that the accused had not pleaded guilty to any offence committed by him on the 5th April, 2001 and indeed there is no such count on the indictment. In passing, I may say that the incident refers to a date of the disclosure by one of the girls and, if nothing else in this case, it is one good thing that the girl finally had the courage to disclose and thus put a stop to further offending. However, in the context of what emerged in evidence, the contents of the statements of the two complainants and the accused's own memoranda of interview and statement, lead without objection through the evidence of Sergeant Lawlor, that intervention, the point of it, has become academic. That is because of the catalogue of sexual abuse disclosed in that way. Marshalling the evidence—a phrase cited in a 1997 case in Mr. O'Malley's book at page 142—marshalling the evidence within the four corners of a guilty plea can be difficult."
The defence does not concede that the seven counts out of the twenty-six in the indictment are representative, but, to some extent, that has become a bit of a fiction. The real, what I might call navigable requirement, the what I might call negotiated distinction, it is plain to me, is that the accused has not pleaded guilty to any crime of penetrative sex. These had been laid in the indictment under the 1935Criminal Law (Amendment) Act as being offences against a girl under the age of fifteen, but the accused does not admit to that or indeed to any penetrative sex. Instead, the seven charges all relate to sexual assault simpliciter under section 5 of the 1990Criminal Law (Rape) (Amendment) Act, which carries a sanction of five years' maximum for each such offence. The range of places where these seven offences took place discloses a picture of the debauchery of these two girls by the accused whenever and wherever opportunity afforded — in his bedroom; on the sofa in the sitting-room;
seemingly a sitting-room/kitchen; in a shed by a disused house; in his garage/workshop; in…………………, on a stretcher-bed or trolley in the kitchen, and another on a stretcher-bed, a trolley, in the workshop there; and in his car, including on school runs. I might say, in parenthesis, the unfortunate girl then had to adjust her school uniform and face the day having been debauched by that by him, delivered to school after he had his way with her. The range of the offences includes subjecting the victim, one of them, to repeat showing of hard-core pornographic videos in his home. It is all too easy to imagine the horrific effect of those alone on innocent, ignorant young girls of thirteen and fourteen years of age.
The accused admits to two offences against the elder girl on a date unknown between 1 st January, 1993 and 30 th April, 1993, the second offence between the 1 st April, 1994 and the 30 th...
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