People(DPP) v TCW

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 14 October 2010
• Neutral Citation: [2010] IECCA 95
• Docket Number: 64/CJA/09
• Court: Court of Criminal Appeal
• Date: 14 October 2010

[2010] IECCA 95

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

O'Keeffe J.

64/CJA/09

DPP v W (T C)

IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

T C W

RESPONDENT

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S16

DPP v BYRNE 1995 1 ILRM 279 1995/5/1758

CRIMINAL LAW

Sentence

Undue leniency - Sexual assault - Function of Court of Criminal Appeal - Whether trial judge took into account all material circumstances - Whether sentence imposed unduly lenient - DPP v Byrne [1995] 1 ILRM 279 approved - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 37 - Criminal Justice Act 1993 (No 6), s 2 - Criminal Justice (Public Order) Act 1994 (No 2), ss 6, 16 - Non-fatal Offences Against the Person Act 1997 (No 26), s 2 - Application allowed (64/2009CJA - CCA -14/10/2010) [2010] IECCA 95

People (DPP) v W(TC)

Facts The respondent herein was sentenced to 4 years imprisonment with two years suspended following a plea of guilty to one count of sexual assault. The sexual assault was perpetrated on the respondent's partner's thirteen year old daughter at their home. The facts were horrific and the assault was accompanied by threats including a threat to kill. The respondent was under the influence of alcohol and drugs at the time of the offence. The respondent left the jurisdiction after the offence was committed but did return at a later date. The victim impact statement disclosed that the complainant regarded her life as ruined and suffered every day. The respondent offered compensation but that was rejected by the complainant and her family. The respondent had 3 previous convictions but none of this nature. He was 48 at the time of sentencing and had the support of his children.

Held by the CCA; Finnegan J. (Budd, O'Keeffe JJ) in allowing the application: That the learned trial judge in sentencing took into account everything that ought to have been taken into account. However, it was not clear from his judgment on sentencing where in terms of seriousness on the range between a non-custodial sentence and the maximum term of imprisonment prescribed by statute, this particular offence fell. This offence was far more serious than a sentence of four years would indicate. It was towards the upper reaches of offences of this nature. Taking all the circumstances into account the sentence imposed was unduly lenient. This offence was placed towards the bottom of the range of appropriate sentences and a sentence of six years imprisonment was imposed with the last two years suspended upon the terms imposed by the learned sentencing judge.

Reporter: L.O'S.

Finnegan J.

1 This is an application pursuant to section 2 of the Criminal Justice Act1993. The respondent on this application was charged with and pleaded guilty to one count of sexual assault contrary to the Criminal Law (Rape) Amendment Act 1990 section 37. The facts of the case are horrific.

2 On the 24^th February 2007 in Co. Limerick a sexual assault was committed on SM. The maximum sentence for this offence is a sentence of fourteen years imprisonment she being at that time a child of thirteen years. It is to be noted that there was an early acceptance of responsibility and there was an early plea of guilty.

3 The facts surrounding the offence were that the respondent was in a relationship with the child's mother. The mother was at work and at about 11 p.m. the respondent returned home from a public house having consumed drink and having apparently taken drugs. He went upstairs, came back down to the sitting room where the child was minding his child who was under three years of age. He grabbed his child from her arms, grabbed his victim, removed her clothing and then removed his top. He fondled her roughly about the breasts. She was crying, screaming and fighting back. He removed her pants and underpants. He forced her legs apart and put his head between her legs and licked and bit her genital area. He made her touch his penis. All this was carried out as his only child was crying on the floor in the same room. The offence occurred over a considerable period of time. It was accompanied by threats including a threat to kill. He left the house but then returned. His victim had locked herself in her bedroom. The respondent tried to force his way in to the extent that...