The People (At the Suit of the Director of Public Prosecutions) v D.N.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 10 December 2024
• Neutral Citation: [2024] IECA 312
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 277/2023

Between/

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

Respondent

and

D.N.

Appellant

[2024] IECA 312

Edwards J.

McCarthy J.

MacGrath J.

Record No: 277/2023

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 10th of December, 2024.

Introduction

1 This is the appellant's appeal against the severity of the sentence imposed on him by the Central Criminal Court in respect of his conviction for two counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, and thirty-six counts of sexual assault contrary to common law and as provided for by s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (i.e., “the Act of 1990”).

2 On the 28th of July 2023 the appellant was arraigned and pleaded guilty to count no. 1. (a count of sexual assault), and count no. 23. (a count of s. 4 rape), respectively.

3 On the 6th of November 2023, the appellant was further arraigned on counts nos. 2 to 22 inclusive and counts nos. 24 to 38 inclusive and pleaded guilty. With the exception of count no. 24, all were counts of sexual assault. Count no. 24 was a further count of s. 4 rape.

4 On the 13th of November 2023, the Central Criminal Court passed sentence, ordering that the appellant serve 5 years imprisonment for the s. 4 rape comprising count no. 23, with count no. 24 being taken into consideration; and 3 years imprisonment in respect of the each of the sexual assault counts. All sentences were to run concurrently but to commence on the lawful expiration of a sentence imposed on Bill No. CCDP42/21 (Court of Appeal Reference CCACJ0011/23) on the 8th of June 2023.

5 As the sentences on Bill No. CCDP42/21 (Court of Appeal Reference CCACJ0011/23) had in turn been made consecutive to an earlier sentence of six years imprisonment imposed on him on Bill No. CC0088/15 in the Central Criminal Court (Court of Appeal Reference CCACJ0145/17) for similar type offending on the 15th of May 2017, which earlier sentence had in turn had been made consecutive to an even earlier sentence of seven years imprisonment imposed on him on Bill No. WWWDP46/13 by Wicklow Circuit Criminal Court on the 21st of March 2014, the appellant was already serving an effective 19 year sentence before the imposition of the sentences of 5 years imprisonment and 3 years imprisonment, respectively, which are the subject matter of the present appeal. His anticipated release date prior to the imposition of the sentences the subject matter of this appeal was the 19th of June 2028.

6 The net effect of the imposition of the consecutive sentences the subject matter of this appeal is that the appellant faces having to serve a cumulative 24 years in prison before remission for the totality of his offending, meaning that his new anticipated release date is now the 19th of March 2032.

Factual Background

7 At the sentencing hearing in this matter on the 6th of November 2023, the Central Criminal Court heard evidence from a Detective Garda James McDonagh in respect of the rape and sexual assault offences.

8 The victim in this case, “W”, lived and went to school in a Dublin City suburb. He was in 6th class in school in 1994. He was known for being willing and available to perform odd jobs and menial tasks for persons in his locality in order to earn pocket money.

9 In the summer of 1994, or shortly after, the victim encountered the appellant who was an ordained priest of the Roman Catholic Church, assigned at the time to the parish in which the victim lived. The appellant was wearing a priest's outfit at the time of this encounter. W was asked if he was interested in doing some work for the appellant, mainly gardening, in or about the parochial house where the appellant was then living. W went there within a few days of this first meeting, and on the first two occasions of his attendance at the parochial house, he did the work that he was asked to do, which was mostly gardening tasks. The evidence was that W was “ paid money, cash, and nothing untoward happened on those two occasions”. However, on subsequent occasions W was subjected to sexual abuse by the appellant.

10 The abuse was divided into seven categories by D. Garda McDonagh.

Counts nos 1 to 3

11 Firstly, evidence was given of three specific sexual assaults (count nos 1 to 3), which occurred at the aforementioned parochial house in a three-month period in the summer of 1994. W was 11 to 12 years of age at that point and the appellant was 41 to 42 years of age.

12 In terms of count 1, the appellant got the victim to join him on his couch in the living room in the parochial house and touched his thigh, telling him: “ There's no point in telling the grownups because it's sometimes what the grownups do”.

13 The second offence took place approximately a week to 10 days later. The appellant and the victim were again on the couch in the living room of the parochial house and the appellant put his hands around W's groin, put his hands over and under W's clothes, opened the zipper of W's trousers and “ fondled” his penis.

14 The third count refers to an occasion where again the appellant and the victim were in the living room of the parochial house, and both were lying on the couch. The appellant undressed himself, told the victim to undress himself, which he did, and the appellant attempted to masturbate the victim while he, the appellant, was erect and ultimately ejaculated and cleaned himself in the presence of W.

Count no 4

15 This count refers to a specific sexual assault committed in November 1994 at the aforementioned parochial house, when the victim was 12 years of age. On this occasion, the appellant took the victim's penis in his mouth, and he asked him if he could give him a blowjob. In his statement to gardaí W stated that he “ probably didn't even know what that meant at the time”. They were both naked and while this was happening, the appellant masturbated himself.

Counts nos 5 to 22

16 These comprise 18 sample counts of sexual assault committed at the aforementioned parochial house over a period of four-years and four-months between 1994 and 1998. At the time, the victim was between 11 and 16 years of age and the appellant was between 41 and 46 years of age. For this period, the sexual assaults took place on a weekly basis, and concerned the progression from the appellant masturbating the victim to the appellant putting the victim's penis into his mouth.

Count nos 23 and 24

17 These comprise two s. 4 rapes committed within the same period, when the victim was made to take the appellant's penis into his mouth. The victim described this offence as “[The appellant] made me suck his penis”.

18 These offences were again committed at the aforementioned parochial house during the previously mentioned four-year and four-month window between dates in 1994 and 1998. Again, the victim was between 11 and 16 years of age and the appellant was between 41 and 46 years of age.

Count no 25

19 This count relates to a specific sexual assault which was committed at an unknown place in a Dublin suburb other than that in which the victim resided, in a three-month period between January and March of 1999. At this point the victim was 16 years of age, and the appellant was 46 years old.

20 In this instance, the victim had been collected outside an AIB branch in the suburb in question by the appellant and was driven to a location, which he could not specifically identify beyond indicating an awareness that it was in the suburb in question, whereupon the appellant took the victim's penis in his mouth.

Counts nos 26 to 31

21 These comprise seven sample counts of sexual assault that occurred at unknown locations in two Dublin suburban areas in a 15-month period between 1999 and 2000. At the time of these offences the victim was 16 or 17 years of age and the appellant was between 46 and 47/48 years of age.

22 The victim stated that the appellant would collect him monthly and take him to various locations and perform oral sex on him.

Counts nos 32 to 38

23 The final category comprised seven sample counts of sexual assaults committed over a 19-month period between 1999 to 2000 at a presbytery in a different parish to that in which W resided. This was in circumstances where the appellant had moved to serve in a new parish in a different county. Again, the victim was 16 to 17 years of age, and the appellant was 46 to 47/48 years of age.

24 The appellant would carry out acts similar to those that he had previously performed at the aforementioned parochial house in the victim's parish, and involved them “ getting naked”, and the appellant performing oral sex on the victim while kissing him and “ sticking his tongue down his throat”.

Disclosure of Offending Conduct

25 On the 2nd of May 2022, the victim travelled from the UK and made a statement at a named Garda Station. He had previously made arrangements to do so with An Garda Síochána but had not followed through as he “ wasn't strong enough at the time”. D. Garda McDonagh stated that Mr. W was in a position to provide detail in respect of the appellant that “ one might only be aware of if one had seen [the appellant] naked”.

26 On the 3rd of June 2022, the appellant, who was by that stage serving a cumulative 19-year sentence, was interviewed by D. Garda McDonagh and a D. Sergeant O'Neill on foot of a warrant obtained pursuant to s. 42 of the Criminal Justice Act 1999. During the course of the interview, the appellant spoke openly in terms of his having been ordained in 1979, travelling to Brazil to work, and his various appointments in Ireland, including in the parish where the victim had resided, between 1991 and 1998 and subsequently in a different parish. He confirmed living in the aforementioned parochial house at relevant times, and that he did engage one or two people “ in a friendly way” to help with...