The People (At the Suit of the DPP) v J.McD.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 08 February 2021
• Neutral Citation: [2021] IECA 31
• Docket Number: Record No: 224/2019
• Court: Court of Appeal (Ireland)
• Date: 08 February 2021

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

Respondent

and

J.McD.

Appellant

[2021] IECA 31

Edwards J.

McCarthy J.

Donnelly J.

Record No: 224/2019

THE COURT OF APPEAL

Sentencing – Defilement of a child under 15 years of age – Severity of sentences – Appellant seeking to appeal against sentences – Whether sentences were unduly severe

Facts: The appellant, on the 21st of June, 2019, came before the Central Criminal Court and pleaded guilty to counts 4 and 5 on the indictment, which were both counts of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act 2006. Other counts on the indictment had charged rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, but the pleas offered to the defilement counts, which had been added at a late stage, were acceptable to the respondent, the Director of Public Prosecutions. A nolle prosequi was then entered in respect of the other charges on the indictment. On the 17th of October, 2019, the appellant was sentenced to 4 years’ imprisonment in respect of each count, to run concurrently from the 1st of April, 2019 to reflect time spent in custody. An order was also made providing for two years post-release supervision. The appellant appealed to the Court of Appeal against the severity of his sentences. The appellant rested his appeal on the following grounds: (a) the sentencing judge attached disproportionate weight to the age of the appellant in considering his age as an aggravating feature of the case; and (b) the sentencing judge failed to attach adequate weight to the appellant’s mitigating circumstances.

Held by the Court that in the circumstances it found no error of principle in the assessment of gravity. The Court rejected ground of appeal (a). The Court considered that a 50% discount for the combination of mitigating factors that arose in the circumstances of the appellant’s case, and to be set against the headline sentences nominated for the offences charged as committed by the appellant, was an entirely appropriate and proportionate level of discount. The Court rejected ground of appeal (b).

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on 8th of February, 2021 by Mr Justice Edwards

Introduction

1 On the 21st of June, 2019, the appellant came before the Central Criminal Court and pleaded guilty to counts 4 and 5 on the indictment, which were both counts of defilement of a child under 15 years of age contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act, 2006 (“the Act of 2006”). Other counts on the indictment had charged rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 (“the Act of 1990), but the pleas offered to the defilement counts, which had been added at a late stage, were acceptable to the Director of Public Prosecutions. A nolle prosequi was then entered in respect of the other charges on the indictment.

2 On the 17th of October, 2019, the appellant was sentenced to 4 years' imprisonment in respect of each count, to run concurrently from the 1st of April, 2019 to reflect time spent in custody. An order was also made providing for two years post-release supervision.

3 The appellant now appeals against the severity of his sentences.

Background Facts

4 The two relevant counts relate to two incidents which occurred on the 21st and 25th of August, 2015, respectively, when the appellant, then a teenage boy, was 16 and a half years old and the victim, then a pre-teenage girl, was 12 and a half years old. For completeness, it should be mentioned that there was a second teenage boy, then aged 14 years, co-accused with the appellant in respect of the second incident, i.e, the incident on the 25th of August, 2015.

5 The victim had engaged the appellant over Facebook, falsely portraying herself as 14 years old, and told him that she wished to go out. The pair agreed to meet up on the 21st of August, 2015 near a Lidl supermarket, which was not far from a park.

6 The victim turned up as arranged and was accompanied by a friend, and met up with the appellant who was accompanied by several of his friends. The group proceeded in the direction of the park, and when they got there the appellant took the victim to a location, described in evidence as “ a field with a ditch and trees all around”, some distance away from the others. The victim told gardai that she was effectively dragged and pushed over to this particular area. She had felt unsafe but stated that she didn't go with her gut feeling. The appellant then put his hands on her, feeling her all over her body including around her legs. He then made her kneel on the ground and take his penis in her mouth. She described having to lick his penis like a lollipop as he manipulated her head to make her suck it.

7 According to the victim the appellant's penis was in her mouth for about 10 seconds on this occasion. However, while this was taking place the appellant produced his mobile phone and videoed what was occurring on his mobile phone. Some of his associates, who by this stage had caught up with the appellant and the victim, also took still photographs of what was occurring on their mobile phones. After the appellant had desisted, the victim was shown some of these photographs. The photographs showed her, in her words, “ giving him a blow job”. Seeing these photographs caused her great distress. She had tried to grab the phone on which the photographs were recorded but she was not able to. She later told Gardai that she felt “ really dirty” and that she ran away at that point. She expressed concern that if somebody saw the photographs she would “get a name for having done this” and said they had made her feel horrible.

8 Over subsequent Facebook messages, the victim asked the appellant to meet up with her again on the 25th of August. The appellant initially told her that he did not wish to do so but eventually agreed. They met close to a shopping centre and on this occasion the appellant was accompanied by the aforementioned co-accused. Also present were other friends of the appellant, and the victim's friend who had accompanied her previously. They proceeded to a nearby estate where the appellant made attempts to isolate the victim, which was interfered with by the efforts of her friend. He eventually succeeded however, and once he had separated the victim from the group, he pushed her down to the ground and again put his penis in her mouth. The victim estimated that this lasted for about 2 minutes. Subsequently, the appellant told her that she must engage in oral sex with his friend, the co-accused, or the appellant would show photographs taken on the previous occasion to other members of the boxing club in which she was actively involved. The victim told Gardai that she could not stop shaking as this was happening, but that she did what she was instructed to do and took the co-accused's penis in her mouth, before running away.

9 The incidents came to Garda attention when, on the 26th of February 2016, an off-duty Garda encountered an incident in a shopping centre where a teenager was being pursued through the shopping centre by an adult man, and the Garda had intervened. It had transpired that the victim had been in a library in a shopping centre complex with her parents when she unexpectedly encountered the appellant. Distressed at encountering the appellant, the victim told her parents what he had done to her. The victim's father had then sought to apprehend the appellant leading to a running pursuit through the shopping centre. Following the off-duty Garda's intervention a formal complaint was made by the victim to Gardaí and a Garda investigation was commenced.

10 In the course of their investigation Gardaí examined the Facebook material and the video taken by the appellant of the victim performing oral sex on him. The video had been sent to a third party. When shown the footage by the gardaí, the victim was able to identify herself.

11 There were also exchanges between the victim and her friend following the 25th of August, in which she stated that she would end her life because the appellant was using her, and because she had given him “ things”.

12 Interviews with child specialist interviewers were arranged for March and August, 2016, which led to the emergence of further details, including that subsequent sightings of the appellant had caused her a great degree of fear and discomfort, and that a threat had been made to the victim by a relative of the appellant to pressurise her not take the matter further.

13 Following the commencement of the investigation Gardai had difficulty initially in locating the appellant and they did not succeed in interviewing him until August 2017, when the victim's allegations were put to him. However, this interview yielded nothing of evidential value. The co-accused was subsequently arrested and made statements which Gardai felt it necessary to put to the appellant. This led to his re-arrest and a further interview with him in September 2017, which again yielded nothing of evidential value. In April 2018, directions were received from the respondent that the appellant should be charged with rape, contrary to s. 4 of the Act of 1990. Arrest warrants, including a European Arrest Warrant in circumstances where the appellant was understood to be in the United Kingdom at that stage, were applied for. The appellant was eventually arrested and charged a year later on the 1st of April 2019, following his voluntary return to the jurisdiction.

Impact on the Victim

14 The victim in this case went into the witness box and read her victim impact statement to the court without objection. She was not required to take the oath as defence counsel indicated that they did not consider it necessary. There had previously been considerable...