People (DPP) v Noel McKeon
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 23 July 2021 |
| Neutral Citation | [2021] IECA 212 |
| Docket Number | [Record No. 74/20] |
| Court | Court of Appeal (Ireland) |
[2021] IECA 212
Birmingham P.
Edwards J.
Donnelly J.
[Record No. 74/20]
THE COURT OF APPEAL
Sentencing – Sexual offences – Totality principle – Appellant seeking to appeal against sentence – Whether there had been compliance with the totality principle
Facts: The appellant, Mr McKeon, appealed to the Court of Appeal against the imposition by the Central Criminal Court of a combined sentence of sixteen years imprisonment but with two years suspended on various terms including co-operation with the Probation and Welfare Service. The sentences were imposed in respect of a number of counts arising out of two separate incidents of considerable violence perpetrated on two separate victims. A trial date had been fixed for 16th March 2020 and on the 29th July 2019, the appellant entered pleas of guilty to six counts on the indictment covering the following victims and offence dates: victim 1 (18th June 2016) - (count 2) sexual assault, (count 3) false imprisonment, (count 4) assault causing harm, and (count 5) robbery; victim 2 (4th February 2018) - (count 6) rape, and (count 7) rape under s. 4. At the oral hearing, counsel for the appellant confirmed that the central issues were whether there had been compliance with the totality principle and the duty not to impose a crushing sentence. He relied in particular on the mitigating factors in the case, especially as regards the plea of guilty, his remorse, his willingness to engage with the appropriate services while in custody and his family circumstances. In effect counsel submitted that the suspended part of the sentence should have been granted.
Held by the Court that it was not satisfied that the principle of proportionality had been broken. The Court noted that these were extremely grave offences carried out with considerable violence with an interval of eighteen months between them. The Court noted that in the interim period the appellant was questioned by the Gardaí but went on to commit the second set of offences. The Court found that the offences had a sinister xenophobic context to them. The Court held that the sentence imposed reflected the gravity of the totality of the offending behaviour and appropriate mitigation. The Court held that, overall, the sentence imposed did not offend the totality principle.
The Court dismissed the appeal.
Appeal dismissed.
Judgment of the Court delivered on 23rd July, 2021 by Ms. Justice Donnelly
This is an appeal against the imposition by the Central Criminal Court (Hunt J.) of a combined sentence of sixteen years imprisonment but with two years suspended on various terms including co-operation with the Probation and Welfare Service. The sentences were imposed in respect of a number of counts arising out of two separate incidents of considerable violence perpetrated on two separate victims.
A trial date had been fixed for 16th March 2020 and on the 29th July 2019, the Appellant entered pleas of guilty to six counts on the indictment. This was “a relatively early plea of guilty”. The Appellant pleaded guilty to counts 2, 3, 4, 5, 6 and 7 on the indictment covering the following victims and offence dates:-
Victim 1 (18th June 2016):-
Ct. 2 Sexual Assault;
Ct. 3 False Imprisonment;
Ct. 4 Assault Causing Harm; and
Ct. 5 Robbery.
Victim 2 (4th February 2018):-
Ct. 6 Rape; and
Ct. 7 Rape under Section 4.
The victim had been working in the sex trade in Ireland in the months prior to 18th June 2016. A telephone and text exchange resulted in the Appellant arriving at the victim's address. On payment of a sum of money there was consensual sex between them.
The victim then became concerned for her safety due to the tone of the Appellant's remarks. He suggested she was a Romanian (in fact she was not) and was a parasite. He closely followed her to the toilet and then to the kitchen. He then demanded more sex and pulled her pyjama top over her head and bit the nipple of her right breast causing pain. He pushed her onto the bed and she screamed in protest. He was verbally abusive, and he tried to climb on to her in a manner indicating he wanted to have sexual activity with her. He was removing his lower clothes. He slapped her on the face causing her to fall from the bed to the floor. She managed to avoid the Appellant who fell and she shouted to a neighbour when she opened her apartment door.
The Appellant picked her up and slammed her against the front door. He grabbed her around the throat and closed out the neighbour. She came to her knees and he slammed her head against the doorknob and the door causing a laceration. He dragged her by the hair shouting “Romanian Romanian”. He pushed her to the floor whereupon he kicked her repeatedly in the face. He gripped her by the throat and restrained her. She bled. He demanded her wallet and took money from it. He then started punching her in the face, chest and ribs. She was held against the kitchen sink as he pulled her hair. He kicked her legs apart and used gross language of a sexual nature to indicate what he would do to her. At this time, he had an erection. He ripped a necklace from her neck and earrings from her ears and pocketed them. He forcefully penetrated her vagina with his fingers despite her continuous screaming. He ignored her protestations and struck her. He was scratching inside and outside her vagina area to the anus.
The victim, although naked, managed to get onto the kitchen counter and began to climb out the apartment window. He picked up a kitchen knife and tried to stab her at the top of her ankle. The apartment was on the ground floor but escape entailed her having to alight onto a roof area below. She then hid whereupon the Appellant calmly left the premises. She was driven by a passing taxi to Clontarf Garda Station. She was taken to the Mater hospital for treatment of her injuries which required five sutures. She was also taken to the Sexual Assault Treatment Unit.
As a result of photo fit and telecommunication records, the Appellant was linked to the offences. The Appellant was nominated as a suspect and he presented himself to Clontarf Garda Station where he was arrested detained and interviewed with no probative outcome. He declined to join a formal identification parade.
On the 17th October 2016 an informal identification procedure took place. He was identified by the victim. He was re-arrested on the 31st May 2018. It has not been explained why there was such an interval before his re-arrest. We consider that an unsettling aspect of the investigation. The re-arrest took place after the second offence was committed. He was interviewed but nothing of probative valued was obtained.
Evidence was given that the victim's injuries included a deep vertical laceration between her eyebrows. There was an abrasion on the right side of her neck and on her right shoulder. There was bruising and redness to her right elbow. There was also bruising to her left arm. There was dust and grit on the vulva, the skin around the anus and the soles of her feet. This was consistent with her history of a violent assault.
The victim was present in court. Counsel for the prosecution summarised her victim impact report. €121 was taken from her wallet. She had jewellery taken. She set out her loss of trust in people. She described her treatment in accordance with the evidence given. She is conscious of a permanent mark on her face.
The victim of these offences was a Romanian national. She worked as an escort in the sex trade industry.
Having made contact by text, the Appellant visited the victim at her apartment block. He was initially friendly, but alcohol was detected on his breath. He paid her €70.00 for 30 minutes and she believed he then asked her if she was clean as an introduction to a request for unprotected sex. Sexual activity occurred but the Appellant then took off his condom. The victim asked him to leave. His answer was to tell her in a graphic fashion that he wanted sex, put on another condom, punch her in the eye and push her from behind.
The Appellant then pulled the victim's hair from her head by the roots. She fell on a coffee table. He put his hand over her mouth and again removed his condom. In her bedroom he raped her anally and vaginally. He demanded a repeat, pushed her on to the bed and asked for oral sex. He told her he was sorry; the victim believed he said this because she convinced him she would not seek the Gardaí.
The prosecuting Garda agreed that the victim was satisfied the Appellant had taken cocaine and alcohol before his arrival. It was accepted that the Appellant agreed not to ejaculate inside the victim and instead did so on the bed covering.
The victim contacted the Gardaí the following day who noted she had bruising to her face and swelling to the bridge of her nose. Photographs were taken and incorporated into the book of evidence. She made a formal statement and was taken to the Sexual Assault Treatment Unit.
CCTV footage was collected and led to the accused as did DNA samples.
On 17th April 2018 the Appellant was arrested and detained at Store Street Garda Station where he was interviewed on six occasions with no probative results. He declined a formal identification parade but gave an account of drinking with his brother and his ex-partner. He stated he contacted the victim and that he had used his own telephone and insisted the victim agreed to unprotected sexual intercourse. He explained her injuries as resulting from a push by him but denied...
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DPP v Lewis
...to the totality principle and was not a reflection of the court's consideration of the appellant's mitigation. The People (DPP) v McKeon [2021] IECA 212 is cited in this 29 In response to the appellant's submission that insufficient credit was given for the mitigating factors, the responden......