The People (At the Suit of the DPP) v F.M.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice Edwards
• Judgment Date: 25 January 2022
• Neutral Citation: [2022] IECA 40
• Docket Number: Record No: 63 CJA/21

In the Matter of an Application Pursuant to Section 2 of the Criminal Justice Act, 1993

Between/

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

Applicant

and

F.M.

Respondent

[2022] IECA 40

Edwards J.

McCarthy J.

Kennedy J.

Record No: 63 CJA/21

THE COURT OF APPEAL

Sentencing – Sexual offences – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The respondent appeared for sentencing in Cork Circuit Criminal Court on the 26th February 2021 following the entering of signed pleas of guilty in the District Court on the 10th of December 2020, with the affirming of those pleas on the 26th of February 2021, in respect of three offences: (i) sexual assault, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by s. 37 of the Sex Offender Act 2001; (ii) inviting or inducing a child to touch the respondent’s body for sexual purposes, contrary to s. 4 of the Criminal Law (Sexual Offences) Act 2017; and (iii) contacting a child for the purpose of sexual exploitation of that child contrary to s. 7 of the 2017 Act. All the offences were committed on the 4th of December 2018 when the victim was 14 years of age. The respondent was sentenced to 2 years imprisonment in respect of each offence to run concurrently, with all sentences fully suspended for a period of 2 years on condition that the respondent enter into a bond to keep the peace and be of good behaviour and to refrain from having contact with the victim. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the sentences imposed, pursuant to s. 2 of the Criminal Justice Act 1993, contending that they were unduly lenient on the following grounds: (1) the sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances; (2) the sentencing judge erred in law and in fact in failing to attach appropriate weight to the aggravating factors in the case; (3) the sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors proffered on behalf of the respondent both as to his background and as to his subsequent behaviour and as to his medical circumstances; (4) the sentencing judge erred in law and in fact in determining a headline sentence for each of the offences of two years, bearing in mind the seriousness of the kinds of offences, and the maximum sentence provided, as a reflection of that level of seriousness; (5) the sentencing judge erred in law and in fact in failing to place initially the offences on the spectrum of seriousness for offences of this kind and in failing to have appropriate regard to the range of sentences appropriate to such offences, in his approach to sentencing.

Held by the Court that this case, on any view of it, was one in which wholly suspended sentences might reasonably have been imposed. The Court concluded that the sentencing judge’s decision to do so was within his legitimate range of discretion. The Court held that the reasons he expressed for imposing the sentences which he did were cogent, rational and based in the evidence. The Court held that his sentences could not therefore be said to have been sentences that were outside of the norm. The Court accepted that they were lenient, but was satisfied that they were not unduly lenient.

The Court dismissed the application.

Application dismissed.

JUDGMENT of the Court ( ex tempore) delivered on the 25th day of January, 2022 by Mr Justice Edwards.

Introduction

1 The respondent the subject of this appeal appeared before Judge O'Donnabháin for sentencing in Cork Circuit Criminal Court on the 26th February 2021 following the entering of signed pleas of guilty in the District Court on the 10th of December 2020, with the affirming of those pleas on the 26th of February 2021, in respect of three offences, i.e., (i) sexual assault, contrary to s.2 of the Criminal Law (Rape)(Amendment) Act, 1990 as amended by s.37 of the Sex Offender Act 2001; (ii) inviting or inducing a child to touch the respondent's body for sexual purposes, contrary to s.4 of the Criminal Law (Sexual Offences) Act 2017; and (iii) contacting a child for the purpose of sexual exploitation of that child contrary to s.7 of the Criminal Law (Sexual Offences) Act 2017. All the offences were committed on the 4th of December 2018 when the victim was 14 years of age.

2 The respondent was sentenced to 2 years imprisonment in respect of each offence to run concurrently, with all sentences fully suspended for a period of 2 years on condition that the respondent enter into a bond to keep the peace and be of good behaviour and to refrain from having contact with the victim.

3 The applicant now seeks a review of the sentences imposed, pursuant to s.2 of the Criminal Justice Act, 1993, on the basis that they were unduly lenient.

Factual Background

4 The sentencing court heard evidence from Detective Garda Linda Lyons who outlined the circumstances of the offences which resulted in the injured party making a complaint of sexual assault against the respondent.

5 The respondent was a contemporary of the victim's sister and the two communicated through ‘Snapchat’ and it was through this connection that the respondent got to know the victim.

6 The offences occurred at an isolated seaside location on the south coast of Ireland on the 4th of December 2018 when the victim was 14 years of age and the respondent was 19 years of age. The respondent was aware of the victim's age as he had wished her a happy birthday on the 1st of December 2018, three days prior to the offence. Via ‘Snapchat’, he arranged to meet up with her on the 4th of December 2018. He collected her from a nearby village in his car and drove the short distance to the aforementioned seaside location.

7 At this location, and while in the respondent's parked car, the respondent kissed the victim, fondled her breasts and digitally penetrated her. He invited her to touch his penis and placed her hand on his penis. He asked the victim to have sexual intercourse with him, but she declined to do so and no sexual intercourse took place. There is no suggestion that the respondent subjected the victim to any form of duress, coercion or pressure to engage in sexual intercourse contrary to her wishes. In fact, the evidence was that respondent had stopped immediately when the victim intimated that she did not feel comfortable with the prospect of sexual intercourse. However, during the sexual encounter (not involving sexual intercourse) that had earlier taken place the respondent had become aroused and had ejaculated on to the victim's leg.

8 During the time that the respondent and the victim were in the car the respondent understood that the victim's older sister was aware that the victim was in his company. The older sister was not aware, however, of what they were doing or as to what their location was. The older sister did try to contact the victim to tell her to come home but was unsuccessful. The victim's sister eventually told her parents that her younger sister was in the respondent's company and they rang the guards.

9 When the victim returned home she was defensive of the respondent and stood up for him. However, the next day she disclosed to her mother the full details of what had occurred the previous day at the seaside location. This led to a complaint of sexual assault being made to gardai, who upon receiving it arranged for the victim to be examined and assessed at a sexual assault treatment unit (“SATU”).

10 During the SATU examination semen was found on the victim's clothing and leg from which a DNA profile was generated which was subsequently determined to match that of the respondent.

11 Detective Garda Lyons stated that following receipt of the victim's complaint a garda investigation was conducted. She called to the house of the respondent on several occasions and subsequently found out that he had moved to England.

12 Jumping forward in the chronology momentarily, at a bail hearing following the respondent's eventual return and subsequent apprehension there was some dispute as to whether the respondent had travelled to England with his family and had stayed on there after they returned, or whether he had travelled there on his own. It was stated that the respondent and his family left for England on the 24th of December 2018 and that they had had no contact with the gardaí between the date of the (then alleged) offences and that date. However, Detective Garda Lyons had disputed this, stating in her evidence that she was informed by the respondent's brother on the 11th of December 2018, and by his mother on the 12th of December 2018, that he had left for England.

13 Returning to the point in the chronology where the gardai had learned that the respondent had gone to England, the gardai then made certain inquiries through Interpol and an address in Manchester was identified as his possible location. However, this address had been vacated by the respondent by the time the authorities called to it.

14 Subsequently, yet further inquiries were conducted locally during which it was established that the respondent had returned home of his own accord.

15 Detective Garda Lyons called to the family home of the respondent on the 19th of July 2020, and after several efforts to gain entry the guards were admitted and informed by the respondent's mother that he was not at home. Garda Lyons and her colleagues were sceptical of the truth of this representation and requested permission from the mother, as householder, to search the house and permission was granted. They found the respondent hiding behind an alcove in the sitting room.

16 The respondent was then arrested and conveyed to a Garda Station where he was detained and interviewed. While being interviewed he admitted that he had known that...