DPP v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 25 May 2017
• Neutral Citation: [2017] IECA 187
• Docket Number: Record No: 2016/242
• Court: Court of Appeal (Ireland)
• Date: 25 May 2017

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

THOMAS WALSH

Appellant

[2017] IECA 187

Record No: 2016/242

THE COURT OF APPEAL

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

Facts: The appellant, Mr Walsh, was arraigned and formally pleaded guilty to one count of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 in that he on the 13th of January 2014 at a specified location in Co Galway did sexually assault the complainant. The appellant formally pleaded guilty to the said offence on the 18th of November 2015, the day after the trial had commenced. On the 12th of July 2016 he was sentenced to six years imprisonment with no portion thereof suspended. He appealed to the Court of Appeal against the said sentence on the grounds that it was unduly severe in all the circumstances of the case. The appellant argued that the sentencing judge erred in identifying the appropriate headline sentence, in that he placed the offence at the lower end of the high range on the scale of available penalties and then identified seven years imprisonment as being the headline sentence. The appellant also argued that the sentencing judge erred in failing to give the appellant sufficient discount for the mitigating factors in the case. First, it was suggested that inadequate credit had been given for the plea of guilty, and secondly that there had been a failure to take sufficient account of the appellant’s personal circumstances, and in particular that he had been substantially of good character at the time of the commission of the offence the subject matter of the appeal.

Held by the Court that the sentencing judge acted within the range of his discretion in determining that the case fell at the lower end of the high range, given the multiple aggravating circumstances of exploitation of the victim’s vulnerability, the especial humiliation and degradation of the victim by performing the sexual assault in the view and presence of a male third party, and the significant adverse effect that the assault has had on the victim. The Court held that while a seven year headline sentence may have been at the severe end of the judge’s legitimate range of discretion, it was within the legitimate range of his discretion and did not represent an error of principle. The Court was impressed with the appellant’s argument that while some of the mitigation to which he would have been entitled on account of previous good character might have been lost by him on account of his previous convictions they were neither so numerous nor so serious as to have justified the total loss of that discount. The Court considered that the trial judge was in error in failing to give any additional discount on account of the appellant having been substantially, albeit not entirely, of previous good character. In the circumstances the Court allowed the appeal on that basis only, quashed the sentence imposed at first instance and proceeded to a re-sentencing of the appellant.

The Court held that to reflect the fact that the appellant was substantially, albeit not entirely, of previous good character, it would suspend a further year of the headline sentence, i.e., a year off the net sentence of six years remaining after application of the discount for the plea of guilty; the suspension of the said twelve months was also intended to incentivise the appellant’s continued rehabilitation in circumstances where he contended that he had forsaken alcohol and had not consumed alcohol since the incident that gave rise to the proceedings. The Court held that the conditions attaching to the suspended portion of the sentence were that the appellant should enter into his own bond in the sum of €100 to keep the peace and be of good behaviour, that he should engage with the Probation Service upon his release from prison and that he abides by all recommendations of the Probation Service for the duration of the part suspension of his sentence; the duration of the part suspended portion of his sentence would be for a period of three years from the date of his release from prison.

Appeal allowed.

JUDGMENT of the Court delivered on the 25th of May 2017 by Mr. Justice Edwards .

Introduction

1 The appellant was arraigned and formally pleaded guilty to one count of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001 in that he on the 13th of January 2014 at (a specified location) in Co Galway did sexually assault one L, a female. The appellant formally pleaded guilty to the said offence on the 18th of November 2015, the day after the trial had commenced.

2 On the 12th of July 2016 he was sentenced to six years imprisonment with no portion thereof suspended. He now appeals against the said sentence on the grounds that it was unduly severe in all the circumstances of the case.

The Circumstances of the Case

3 On Sunday the 12th of January 2014 the complainant and the appellant were out drinking in a town in Co. Galway in the presence of mutual friends. A large amount of alcohol was consumed before the group returned to a flat in that town. The complainant recalls sitting on the sofa, taking off her boots and falling asleep. At this stage there were three others present in the flat including the appellant.

4 Some time later the complainant awoke to find herself slumped back on the sofa with her legs sprawled. The defendant was between her legs with his head level to hers. She was not aware of any assault having taken place but pushed him off her before realising that she was naked from the waist down. Her body suit which fastened from the crotch had been undone, her skirt was up around her waist and her tights, socks and underwear had all been removed. Another male person who had been in the room at the time witnessed the appellant remove her clothes as she slept and sexually assault the complainant. This witness told Gardaí that he had seen Mr Walsh remove the complainant's clothes as she slept, that he had also seen Mr Walsh with his head between the complainant's legs, that he had seen Mr Walsh touching the complainant's legs and vagina with his hands, and that he had seen Mr Walsh putting the complainant's legs over his shoulders and simulating sexual intercourse.

5 The complainant on waking up was very upset. She found her clothing, went to the bathroom and got dressed. Shortly afterwards a number of others arrived at the flat and ejected the appellant at around 3:38 a.m. The complainant got the bus back to Galway city, where she lived, the following morning. While in a phone shop in Galway she collapsed and an ambulance was called. She disclosed to an A&E nurse that she had been sexually assaulted the night before and had collapsed due to the stress. She consented to Gardaí being notified and the Gardaí in due course commenced a criminal investigation into what had occurred.

The Victim Impact

6 The complainant read to the sentencing court a detailed victim impact statement. She told the court how she is now very distrusting of men, particularly those who are new to her. Though she was previously friendly and open minded, she is now not. She often freezes momentarily if she sees someone who resembles the appellant. Her family home was burgled three weeks after the incident and at the time she believed it was the appellant, although this was entirely unfounded. She has difficulty with personal intimacy and feels a loss of control when in intimate situations. She has had to take leave from work when the pressure is too great for her. She described the locality in which the incident occurred where she has many friends, as ‘dead’ to her. She only discovered the details of the offence two years and three months after the assault and this also had a serious psychological impact on her. She told the court it was ‘extremely upsetting to feel so vulnerable and powerless over my thoughts and emotions and it's so hard to convey them that no matter how strong I force myself to be, to try to overcome this and not feel like a victim, I still feel so week.’

The Appellant's Personal...