The Director of Public Prosecutions v OC

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice O'Moore
• Judgment Date: 06 February 2025
• Neutral Citation: [2025] IECA 183
• Docket Number: Record No: 160/2024

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

O.C.

Appellant

[2025] IECA 183

Edwards J.

Burns J.

O'Moore J.

Record No: 160/2024

THE COURT OF APPEAL

Sentencing – Possession of child pornography – Severity of sentence – Appellant appealing against sentence – Whether sentence was unduly severe

Facts: The appellant was convicted for three counts of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act 1998. On 15 May 2024, the Circuit Criminal Court sentenced him to 2.5 years’ imprisonment for one count of possession of child pornography on Bill Number DUDP1397/2021, a mandatorily consecutive 15 months for possession of child pornography on Bill Number DUDP0681/2022, and a concurrent sentence of two years on Bill Number DUDP0044/2023. The effective sentence was one of three years and nine months. The sentence of 15 months was in respect of an offence committed while on bail, hence was one which was required by law to be consecutive. He appealed to the Court of Appeal against the sentence on the grounds that it was unduly harsh having regard to comparators, that the sentencing judge erred in not nominating a headline sentence prior to arriving at the effective sentence, that the sentencing judge did not attach appropriate weight to the mitigating factors when arriving at the effective sentence, and that the sentencing judge attached disproportionate weight to the aggravating factors when arriving at the effective sentence. At the hearing of the appeal counsel for the appellant focused on an alleged error of principle on the part of the sentencing judge in failing to consider or impose a partial suspension of the sentence.

Held by the Court that while it would have been preferable for the sentencing judge to have indicated a headline sentence, it accepted the submission of the respondent, the Director of Public Prosecutions (the Director), to the effect that it was legitimate for the judge to have proceeded as he did: DPP v Konar [2023] IECA 145 at para. 22. The Court held that this did not therefore reflect an error in principle on the part of the sentencing judge. The Court agreed with the Director that neither DPP v Loving [2006] 3 IR 355 nor DPP v O’Byrne [2013] IECCA 93 assisted the appellant. With regard to delay, the Court held that the case was distinguishable from O’Byrne and from DPP v McGinty [2019] IECA 27. Given the contents of the psychological report from Dr O’Leary dated 13 May 2024, and the surrounding circumstances, the Court held that the sentencing judge was quite entitled to decline to suspend any part of the sentence. The Court found that there was no reason to believe that the collateral effects of convictions of this sort were not considered by the sentencing judge. The Court found that there was nothing about the length of the sentences actually imposed that would suggest this was the case. The Court held that the sentencing judge expressly took into account the guilty pleas and lack of previous convictions. The Court held that there was no basis upon which it could be said that the sentences were disproportionate, in particular given the nature of the images found on the appellant’s devices.

The Court held that there was no error in principle on the part of the sentencing judge. The Court dismissed the appeal.

Appeal dismissed.

No Redaction Needed

JUDGMENT of the Court delivered by Mr. Justice O'Moore on the 6 ^th day of February, 2025 .

Introduction

1 . Before this Court is an appeal brought by O.C. (i.e., “the appellant”) against the severity of the sentence imposed on him by the Circuit Criminal Court in respect of his conviction for three counts of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act, 1998.

2 . The appellant had entered a guilty plea several months before he was sentenced.

3 . On the 15 ^th of May 2024 the Court below sentenced the appellant in respect of three Bill Numbers: DUDP1397/2020, DUDP0044/2023, and DUDP0681/2022. The appellant was sentenced to 2.5 years' imprisonment for one count of possession of child pornography on Bill Number DUDP1397/2021, a mandatorily consecutive 15 months for possession of child pornography on Bill Number DUDP0681/2022, and a concurrent sentence of two years on Bill Number DUDP0044/2023. The effective sentence was one of three years and nine months. The maximum sentence for the offence of possession of child pornography is five years' imprisonment. The sentence of 15 months was in respect of an offence committed while on bail, hence was one which was required by law to be consecutive.

4 . The appellant appeals this sentence on the grounds that it was unduly harsh having regard to comparators, that the sentencing judge erred in not nominating a headline sentence prior to arriving at the effective sentence, that the sentencing judge did not attach appropriate weight to the mitigating factors when arriving at the effective sentence, and that the sentencing judge attached disproportionate weight to the aggravating factors when arriving at the effective sentence. However, at the hearing of the appeal counsel for the appellant focused on a further ground highlighted in the written submissions, namely an alleged error of principle on the part of the sentencing judge in failing to consider or impose a partial suspension of the sentence.

Factual Background

DUDP1397/2021

5 . At the sentencing hearing on the 15 ^th of May 2024, the Court heard evidence from Detective Garda Kevin Drennan in respect of Bill Number DUDP1397/2021.

6 . The gardaí received information indicating that child sexual abuse material may be found at the appellant's address and subsequently applied for a search warrant, which was granted. On the 5 ^th of August 2017, this search warrant was executed and a number of electronic devices were seized including a mobile phone, a tablet, and a HP laptop. The appellant accepted responsibility and ownership of the devices and provided passcodes for access to these devices.

7 . The mobile phone contained 22 images of child pornography, a mixture of category one and two. The tablet contained eight images of child pornography, a mixture of category one and two. The HP laptop contained 1,011 images of child pornography, of which 860 were category one and the remainder were category two. The laptop also contained 102 videos depicting child sexual abuse material with a total run time of 31 hours, of which 65 videos and 19 hours were category one. The TOR browser had also been downloaded onto the laptop, which allows users to access the dark web and search the internet without a record of the IP address. There were a number of bookmarks on the TOR browser with names indicating that they were in relation to child sexual abuse material.

8 . On the 18 ^th of May 2020, the appellant was arrested by appointment for the purpose of interview. During the interview the appellant answered all questions put to him and accepted responsibility and ownership of the devices, but denied having deliberately viewed or stored child pornography. When evidence of the search terms was put to the appellant, he denied having made such searches. When evidence was put to the appellant of link files showing the dates on which the child sexual abuse material had been accessed on the HP laptop, the appellant denied having accessed the files. The appellant indicated that his only exposure to child sexual abuse material was when 20 pop-up advertisements appeared on his laptop while he was browsing the internet, but stated that he closed and did not save the images. The appellant suggested that other family members may have had access to the relevant device or that viruses may have been responsible for the child pornography on his device.

9 . On the 2 ^nd of September 2020, the appellant was arrested by arrangement for the purpose of charge. The appellant was released on station bail on the same day. The appellant was charged as set out on the charge sheets before the trial court. It is accepted that the appellant was generally cooperative with the investigation.

DUDP0044/2023

10 . At the sentencing hearing on the 15 ^th of May 2024, the Court heard evidence from Garda Chris Moylan in respect of Bill Number DUDP0044/2023.

11 . The gardaí received information in January 2019 indicating that child sexual abuse material may be found at the appellant's address and subsequently applied for a search warrant, which was granted. On the 17 ^th of May 2019, this search warrant was executed and a number of electronic devices were seized including an iPad. The appellant accepted responsibility and ownership of the iPad and provided the passcode for access to the iPad.

12 . The iPad contained 349 images and 34 videos with 108 screenshots of child pornography, a mixture of category one and two.

13 . On the 18 ^th of June 2021, the appellant was arrested by appointment for the purpose of interview. During the interview the appellant answered all questions put to him and explained that he had won the iPad in a raffle approximately one month prior to the search. The appellant denied having downloaded any of the information or child sexual abuse material that was found on the iPad. When shown a number of applications that had been installed on the iPad and accessed, the appellant either denied or stated that he did not recall installing these applications. Later examination revealed that the appellant's email address was associated with the applications. The appellant suggested that other family members may have had access to the relevant device (although he did not recall giving anyone the password) or that the applications may have been installed by a remote user rather than a physical user of the iPad. When it was put to him that the screenshot images could not have...