The People at the suit of DPP v Ismaeil

• Jurisdiction: Ireland
• Judge: Mr. Justice Joseph Finnegan
• Judgment Date: 08 February 2012
• Neutral Citation: [2012] IECCA 36
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 193 of 2011]
• Date: 08 February 2012

DPP v Ismaeil

BETWEEN/

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

RESPONDENT

AND

MOUSTAFA ISMAEIL

APPLICANT

[2012] IECCA 36

FINNEGAN J.

MORIARTY J.

HOGAN J.

[No. 193 CCA/2011]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Severity - Child abduction - Imprisonment - Whether offence capable of attracting maximum penalty in principle - Approach to sentencing for child abduction - Gravamen of offence - Aggravating factors - Mitigating factors - Proportionality - Constitutional rights of victim - People (DPP) v Loving [2006] IECCA 28, [2006] 3 IR 355, People (DPP) v M [1994] 3 IR 306 and People (AGl) v Edge [1943] IR 115 considered - Non-Fatal Offences Against the Person Act 1997 (No 26), s 17 - Appeal dismissed (193/2011 - CCA - 8/2/2012) [2012] IECCA 36

People (DPP) v Ismaeil

Facts: The applicant appealed against the severity of a six-year sentence imposed by him in the Circuit Court following a conviction on a single count of child abduction pursuant to s. 17 Non-Fatal Offences against the Person Act 1997. He was an Egyptian national who was the paternal uncle of an Irish citizen. He had brought the child disguised as a girl on a false passport to Egypt. The elaborate and intentional nature of the abduction, the tender age of the child, the element of false imprisonment and the permanent nature of the removal of the child were all asserted to be gravely aggregating factors. The applicant was asserted to be of good character otherwise. Efforts to return the child were of no avail to date.

Held by the Court of Criminal Appeal per Finnegan J. that the sentence imposed here was entirely proportionate reflecting the inherent gravity of the offence and the life-changing impact that it had upon the mother of the child. If the applicant petitioned for clemency the Government would be fully justified in exercising its powers of remission pursuant to s.23 Criminal Justice Act 1951. The Court would dismiss the appeal against the severity of the sentence imposed.

Reporter: E.F.

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S17

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S17(3)(B)

DPP v LOVING 2006 3 IR 355 2006/19/3964 2006 IECCA 28

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S48

DPP v DUFFY 2009 2 IR 395 2009/16/3677 2009 IECCA 20

CRIMINAL JUSTICE ACT 1999 S29(2)

DPP v MCC (R) & D (C) 2008 2 IR 92 2008 1 ILRM 321 2007/19/3923 2007 IESC 47

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S16

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S16(2)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S17(1)

AG, PEOPLE v EDGE 1943 IR 115

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3(1)

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S4(2)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15(3)(B)

DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994/9/2641

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 41.1.2

CRIMINAL JUSTICE ACT 1951 S23

1 1. The abduction of a young child from the safety and security of its family and its transposition by a combination of stealth, deception and force to a different country, language and culture is one of the worst ordeals which may befall any family. This is especially true where - as the tragic facts of this case illustrate - that abduction results in a separation of the child from its lawful custodian which is likely to prove permanent.

2 2. The applicant, Moustafa Ismaeil, has appealed to this Court against the severity of the six year sentence imposed on him by His Honour Judge McCartan on 27 ^th July, 2011, following his conviction earlier that month in the Dublin Circuit (Criminal) Court on a single count of child abduction contrary to s. 17 of the Non Fatal Offences Against the Person Act 1997 ("the 1997 Act"). The conviction on the single count came at the end of a jury trial at which he had pleaded not guilty to the charge. On 25 ^th January, 2012, this Court announced that it was dismissing Mr. Ismaeil's appeal. The purpose of this judgment is now to give the reasons for that decision.

3 3. Mr. Ismaeil is an Egyptian national who is the paternal uncle of an Irish citizen, Daniel Faris Heaney. Faris was born in 2007 and was just over two years of age when he was abducted by Mr. Ismaeil on 29 ^th July, 2009, in circumstances we will shortly describe. Faris is the son of Mr. Amir Ismaeil and Ms. Norma Heaney. Following the breakdown of the couple's relationship, Ms. Heaney retained custody of Daniel, save that from time to time, the child would remain overnight with his father. The child otherwise lived at Ms. Heaney's family home in Blanchardstown, Co. Dublin with his grandparents and other family members.

4 4. The events giving rise to this appeal really commence on 27 ^th July, 2009. On that day Ms. Heaney left Faris with Mr.Amir Ismaeil at the latter's apartment for an overnight visit. On the following day, he telephoned his former partner to ask her to permit Faris to stay for a further night. When Ms. Heaney went to collect Faris on the 29 ^th July, he was not present. Mr. Amir Ismaeil made a phone call in Ms. Heaney's presence to another member of his family in Egypt in the course of which she believed that she could hear her son crying at the other end of the telephone. It then became clear to her that Faris had been abducted and was by then in Egypt with other members of her former partner's family.

5 5. Following a very prompt and efficient Garda investigation, it emerged that Mr. Moustafa Ismaeil had flown to Egypt on 28 ^th July, 2009, and was due to return on 1 ^st August, 2009. Further Garda investigations had shown that Mr. Moustafa Ismaeil had travelled with a small child on a flight from Dublin to Istanbul with Turkish Airlines and from there on to Cairo. Security camera footage at Dublin airport showed Mr. Ismaeil taking Faris with him through security screening before boarding the airplane. That footage had also identified the taxi in which Mr. Ismaeil had arrived at the airport and the taxi driver gave evidence at the trial to the effect the young child was in a very distressed state as he was brought to the airport by the applicant. Prosecution evidence was led at the trial to the effect that Faris was dressed in pink clothes and disguised as a little girl as he was accompanied by Mr. Ismaeil through the airport complex. The applicant was in possession of a passport for his four year old niece and Faris was represented by him to be the little girl on that passport. It was through this calculated act of deception that the applicant managed to bring Faris through immigration and passport control.

6 6. Faris was evidently delivered by the applicant to the Ismaeil family in Egypt, where he remains. Ms. Heaney and members of her family have managed to visit Faris on four occasions. It would appear that they were pressurised into handing over his actual passport in return for permission to see him. These visits seem to have been exceptionally unpleasant and emotionally draining for Ms. Heaney. Even this Court -the sensibilities of whose members are inevitably dulled by hearing a litany of tragic events and human suffering in the course of the dispatch of the criminal appeal process - cannot but be deeply moved by Ms. Heaney's account of being compelled to leave Faris behind at the Ismaeil family home in Egypt as her son called out to her in his great distress.

7 7. Mr. Mustafa Ismaeil was arrested by Gardaí following his return to Dublin on 1 ^st August, 2009, on a flight from Istanbul. His account to the Gardaí was that he had taken a young female child of a friend with him to Cairo. He further suggested that the child was simply taken for the purposes of a short visit. Mr. Ismaeil did not give evidence at his trial.

8 8. Following the conviction of the applicant, Judge McCartan was told at the sentencing hearing that he had been in contact with his family in Egypt and had requested that Faris be returned. The court was further informed that Mr. Ismaeil had been generally of good character, save that he had also been convicted of a serious assault upon Sergeant Connolly, one of the investigating officers, as the latter had endeavoured to serve a fresh book of evidence on him in relation to this case.

9 9. In a very thorough review of the relevant evidence, Judge McCartan, described this crime as "appalling" and "one deserving of the full rigours of the law", absent compelling circumstances. He noted that the videotape evidence showed that Mr. Ismaeil "executed this operation very skilfully and deceitfully." Noting that the maximum sentence prescribed by s. 10 of the 1997 Act for this offence was seven year, he allowed the applicant a reduction of one year to take account of the fact that he had a (relatively) good record. The judge further acknowledged as a non-national serving time in jail would be more onerous than would be the case for an Irish citizen and that he had not sought to present a false account of evidence to the jury. These were also factors to be taken into account in assessing the appropriate degree of mitigation.

10 10. The starting point for this appeal is whether the offence in question was capable of attracting in principle the maximum penalty prescribed by the Oireachtas, namely, 7 years imprisonment following conviction on indictment: see s. 17(3)(b). In this context, counsel for the applicant, Mr. Loughnane, placed heavy reliance on the comments of Fennelly J. for this Court in The People v. Loving [2006] 3 I.R. 355, 365:-

"It is unusual to impose the maximum sentence allowed by the law for any offence. Such a decision implies that the actual offence is at the highest level of seriousness. It also fails to make any allowance for the two most basic mitigating points: previous good character...