The People (At the Suit of the DPP) v X

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 June 2021
• Neutral Citation: [2021] IECA 168
• Date: 10 June 2021
• Docket Number: Record No: 284/2018
• Court: Court of Appeal (Ireland)

Between:

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

Respondent

and

X.

Appellant

[2021] IECA 168

Birmingham P.

Edwards J.

Collins J.

Record No: 284/2018

THE COURT OF APPEAL

Sentencing – Sexual offences – Severity of sentence – Appellant seeking to appeal against sentences – Whether sentences were unduly severe

Facts: The appellant, on the 8th of October, 2018, came before the Central Criminal Court and pleaded guilty to count 2 on an indictment containing 75 counts. Count 2 was a count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. On the 15th of October, 2018, the appellant pleaded guilty to a further 23 counts on the same indictment, representing 11 further counts of rape contrary to s. 4 of the 1990 Act; 6 counts of sexual assault contrary to s. 2 of the 1990 Act; 2 counts of attempted rape contrary to common law; 1 count of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981; and 3 counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The sentencing judge pronounced sentence on the 2nd of November, 2018. The appellant received the following sentences: 18 years’ imprisonment with the final 3 years suspended in respect of each of the s. 4 rape offences, the s. 2 rape offences and the attempted rape offences; 2 years’ imprisonment in respect of each of the sexual assault offences; and 1 years’ imprisonment in respect of each of the counts of assault causing harm. All sentences were to run concurrently. A nolle prosequi was entered in respect of each of the remaining counts on the indictment. The appellant appealed to the Court of Appeal against the severity of his sentences on the basis that in arriving at the headline sentence of life imprisonment, the sentencing judge erred in describing the offences as “at the very apex of the serious offence of rape”. It was further submitted that the sentencing judge gave insufficient weight to the mitigating factors present and undue weight to the following aggravating factors: (i) the profound breach of trust; (ii) the encouragement to consume alcohol and watch pornography; (iii) the gross hypocrisy of physically punishing the complainant for minor transgressions; and (iv) the extended period of offending over 12 years in the family homes.

Held by the Court that in the circumstances of this case it was legitimately within the discretion of the sentencing judge to take the view that the offending in this case was “at the very apex of the serious offence of rape”, and to have nominated a life sentence as the headline sentence. The Court found no error of principle on that account. The Court found no error of principle in respect of how the sentencing judge dealt with the second stage of sentencing. The Court held that the appeal against the severity of the appellant’s sentences must therefore be dismissed.

The Court proposed of its own motion to make a technical adjustment to the conditions attaching to the part suspension of the sentences for the rape offences. The Court amended the wording of the conditions on which those sentences were part suspended so that it reads: “with the final 3 years of said sentences of 18 years to be suspended for 3 years conditional upon the Accused entering a bond in the sum of €100.00 that he will keep the peace and be of good behaviour towards all the people of Ireland during his periods of imprisonment and for the said period of 3 years from the date of his release, that he undergo a sexual offender rehabilitation programme while in custody and further that he will come up if called upon to do so at any time during the said period of 3 years to serve the portion of the sentence of the Court this day imposed but suspended on his entering into this recognizance.”

Appeal dismissed. Order varied.

UNAPPROVED REDACTED JUDGMENT

NO FURTHER REDACTION REQUIRED

FOR ELECTRONIC DELIVERY

JUDGMENT of the Court delivered by Mr Justice Edwards on the 10 ^th of June 2021 .

Introduction

1 In this judgment the name of the appellant, and of the injured party, have both been redacted in the interests of affording appropriate anonymity to the injured party.

2 On the 8 ^th of October, 2018, the appellant came before the Central Criminal Court and pleaded guilty to count 2, on an indictment containing 75 counts. Count 2 was a count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990.

3 On the 15 ^th of October, 2018 the appellant pleaded guilty to a further 23 counts on the same indictment, representing 11 further counts of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990; 6 counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990; 2 counts of attempted rape contrary to common law; 1 count of rape contrary to s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape) (Amendment) Act 1990 and s.34 of the Sex Offenders Act, 2001; and 3 counts of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

4 Following the arraignment on the 15 ^th of October, 2018 the sentencing judge heard initial evidence concerning the circumstances of the case. He heard further evidence on the following day, i.e., the 16 ^th of October, 2018 and pronounced sentence on the 2 ^nd of November, 2018.

5 The appellant received the following sentences: 18 years' imprisonment with the final 3 years suspended in respect of each of the s. 4 rape offences, the s. 2 rape offences and the attempted rape offences; 2 years' imprisonment in respect of each of the sexual assault offences; and 1 years' imprisonment in respect of each of the counts of assault causing harm. All sentences were to run concurrently. A nolle prosequi was entered in respect of each of the remaining counts on the indictment.

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

Factual Background

7 The court heard evidence from Garda Ray Dermody, who was a member of the Child Protection Unit at the Garda station at which he was then based. Garda Dermody told the court that on the 9 ^th of December 2017 he received a referral in the course of his duties concerning the injured party “A”. The referral indicated that “A” had presented at the Garda Station with her mother on that date, and had complained of sexual abuse perpetrated by her father, the appellant. The services of specialist garda interviewers were sought, and an appointment was arranged for the 17 ^th of December 2017. In the interim, an investigation was commenced based on the initial allegation. On the 13 ^th of December, the appellant presented at the Garda Station in question and made a voluntary cautioned statement.

8 It later emerged that prior to making her formal complaint “A” had previously indicated some of what had happened to schoolfriends, stating that she had been raped, but not by whom. However, after further offending by the appellant “A” had finally disclosed to her mother that she had been repeatedly raped and sexually abused by her father. She had initially attempted to write down what had happened, which prompted her mother to bring her out of the house discreetly under the pretext of picking up prescription medicine, as the appellant could be controlling in regard to their leaving the house. Both mother and daughter then proceeded to the Garda Station where “A” then made her complaint.

9 The injured party was born in 2001. The relevant offences took place between the 20 ^th of January 2006, and the 8 ^th of December, 2017. In her initial complaint, “A” did not tell gardaí about the most recent offences of the appellant due to fear but provided details in respect of those on a subsequent date later the same month. “A” estimated that the abuse began when she was four years old and recalled her address at that time. She remembered the offending behaviour began with the appellant touching her in an intimate and sexual way while she was in his bedroom in their first house in a Dublin suburb (we will call it “address no 1”), when she would have been between four and seven years old, between 2005 and 2008. She was unclear about much but remembered that she knew at the time that what he was doing was inappropriate, and that it felt wrong.

10 The family subsequently moved for a short period to another address in another Dublin suburb (we will call it “address no 2”), and resided there from March through August, 2008, when “A” was seven years old. “A” recalled being the victim of further sexual abuse by her father during this period, and described him using his hand or penis on her body, but was an unclear historian as to more specific details or dates.

11 In August, 2008, while “A” was still seven years old, the family moved yet again, to an address in County Dublin (we will call it “address no 3”), and remained there until January, 2014, when she was 13 years old. At this property, the appellant repeatedly touched “A” both outside and inside her clothing in a sexual manner. This occurred in various rooms in the house, but most commonly in the sitting room, and in the appellant's bedroom. The appellant also touched “A's” vagina with his penis and fingers in her own bedroom, but did not engage in sexual intercourse. “A” recollects being naked or partially clothed on many of these occasions, and feeling humiliated at having to remove her clothing for the appellant's sexual pleasure.

12 “A” recalled a specific incident at the age of 11 in a field near to address no 3, during which she was forcefully put to the ground by her father, before he removed her underwear and attempted to insert his penis into her vagina, but gave up due to her crying. “A” vividly remembers running away from him afterwards. This incident was the basis for one of the attempted rape counts.

13 A similar attempt was made and abandoned in the...