The People (At the Suit of the DPP) v M. C
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 19 October 2021 |
| Neutral Citation | [2021] IECA 319 |
| Docket Number | Record No: CA 84/2019 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 319
The President
Edwards J.
Kennedy J.
Record No: CA 84/2019
THE COURT OF APPEAL
JUDGMENT of the Court ( ex tempore) delivered on the 19th day of October 2021 by Mr Justice Edwards.
On the 5th March 2019 the appellant was convicted of 72 counts of indecent assault contrary to common law as provided for by s.6 of the Criminal Law (Amendment) Act, 1935. The indictment had charged the appellant with 73 counts of indecently assaulting the complainant, all of which were said to have occurred in her place of residence, bar one incident which was said to have occurred at an unidentified beach. The trial judge directed an acquittal in respect of this charge. The counts covered a time period between October 1973 to August 1979 and were broken down into 4-month increments with four separate allegations being alleged in each separate increment. The appellant was convicted of all 72 remaining counts by a 10–2 majority verdict of the jury.
On the 3rd of May 2019 the appellant appeared before Her Honour Judge Elma Sheahan in the Circuit Criminal Court in Dublin for sentencing and was sentenced to an overall term of ten years, comprising of consecutive terms for Counts No's 1–7, and concurrent terms for Counts No's 8 to 72. The individual sentences imposed on Counts No's 1–7 were sentences of 17.1428571429 months (rounded to 17.14 months) being 120 months divided by 7. The individual sentences imposed on Counts No's 8 to 72 inclusive were terms of 20 months imprisonment, to be served concurrently with the sentence on Count No 1 (i.e., they commence running at the same time as Count No 1 and will expire through effluxion of time after 20 months less whatever remission the appellant has earned. Strictly speaking the Circuit Court's Order which states that they are “ to run concurrently to each other and to the sentence imposed on Count No 1” should have expressed them as being concurrent to Counts No's 1 and 2, as they slightly overlap Count No 2. However, no point has been made about this and in practical terms there are no implications for the amount of time that the appellant will have to serve having regard to the consecutive sentences that were also imposed.)
The appellant lodged a notice of appeal against his conviction in the Court of Criminal Appeal on 13th of May 2019. On the 25th of March 2021 the Court of Criminal Appeal dismissed the appellant's appeal against his conviction.
The appellant now appeals against the severity of his sentence.
The complainant was born in 1966. The appellant was in a relationship with the complainant's mother whom he had first met when they were working in the same restaurant. They subsequently moved into a 3-bedroom apartment in a north Dublin suburb where the two adults shared a room and the complainant and her stepbrother, who was six years younger than the complainant, occupied the other two rooms. The appellant provided the role of de-facto stepfather in the complainant's life at the time of the offences.
The complainant stated that the first offence occurred at a time before her Holy Communion when she was 7 years of age. She gave evidence that the appellant was sitting in a chair and tickling both the appellant and her stepbrother when the appellant unbuckled his trousers and asked the complainant to rub his penis saying that “ If you tickle this, something will happen” and “ Rub it”. The complainant stated that she did rub his penis and it became erect. The appellant then said to the complainant “Don't say anything to anybody.” The complainant stated that she was always afraid of the appellant.
Thereafter there were repeated incidents of abuse between 31st October 1973 and 24th August 1979 comprising of,
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1. the appellant having the complainant rub his penis.
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2. the appellant penetrating the complainant's mouth with his penis,
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3. the appellant touching the complainant's vagina with his mouth and
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4. the appellant having the complainant rub herself up and down his penis while she was naked.
The complainant stated that the offences occurred when her mother was out at work or at bingo and generally lasted around one to two hours. The appellant would wake the complainant up and bring her to his bedroom where he would make her take off her night dress and make her rub and suck his penis. The appellant would make the complainant kiss him all over his body and he would kiss her on the mouth and lick her vagina. The complainant said the appellant treated her like a “ sex doll”. The complainant stated that the offending occurred two to three times a week until she was 12 years of age. The complainant attributed the cessation of offending behaviour to a combination of the onset of her periods and her starting comprehensive school.
Gardaí first received an email from the complainant on their website which stated that the complainant had been the victim of historic sexual abuse in a named area of Dublin. On the 15th February, Sergeant R McM contacted the complainant and took details of the circumstances surrounding the sexual abuse. On the 22nd of October 2015 the complainant attended a named garda station and made a statement to Sergeant McM.
On the 1st of November 2015 the appellant was contacted by the gardaí for the first time and was invited to attend a named garda station which he attended on the 4th of November 2015 where the allegations were put to him. He reattended, at the request of the gardaí for further questioning on the 8th of June 2016 and denied ever being in the apartment on a Friday night at the time of the offences as he would have been in a club and that he was “ never the type of guy who sat in minding kids.” He was arrested and charged on the 11th of September 2017.
It was confirmed by Sergeant McM that no similar allegation had ever been made against the appellant by any other individual.
The appellant pleaded not guilty at his trial.
In her victim impact statement, the complainant outlines the “ the psychological effects that were caused by the child abuse” and the effect the resultant drug and alcohol abuse had had on her mental health. She stated that this contributed to her inability to provide an “ emotional stable home” for her daughters and that they became affected indirectly by the offence.
The complainant stated that following the abuse at a young age and into her adult life she has suffered from depression due to her doubts as to her sexuality and her inability to form healthy relationships and emotional connections with people.
She continued to explain how the abuse had led her to being unable to trust people and engaging in behaviour which pushed people away at times in her life when she needed their support the most. She described herself as a “ lonely wolf”.
The complainant described how the abuse had had an impact on how she interacts with her own children and had affected her normal parent/child relationship. She described how she is always fearful when her daughters go out, believing them to be in danger from a sexual assault.
The complainant stated that she had been in therapy and counselling for most of her life and that she had been diagnosed with Post Traumatic Stress Syndrome (PTSS) and was currently undergoing a course of Eye Movement Desensitization Reprocessing (EDMR) treatment.
The claimant described how her childhood had been taken away from her stating “ I can say with 200% that I have never been a child.” She suffered from alcohol and drug addiction problems from an early age and left the family home when she was 16 years of age.
The complainant concluded that she is now settled in another country and has been drugs free from four years prior to the trial. She is receiving therapy specifically tailored for women who have suffered abuse, along with trauma therapy and alcohol addiction counselling.
In relation to coming forward and making the complaint against the appellant she stated, “ This has been an emotional roller coaster and I never thought I would be able to get this far.” She stated that the impact of the abuse lives with her every day.
The accused was born on the 29th of July 1948 and was 70 years of age at the time of the trial.
The appellant met the complainant's mother when they were working in the same restaurant and after their relationship developed, they moved to a three-bedroom house in a north Dublin suburb with complainant and the appellant's son, who was 6 years her junior.
The appellant and the complainant's mother never formally married but she used his surname for formal occasions. The claimant went by the appellant's name as a child to avoid any stigma. They were in a relationship for 8 years and had a child together. The relationship ended in 1988 when he moved out of the house. He then formed another relationship and currently he and his wife care for their grandson who suffers from autism. Both the appellant's daughter and his grandson live with the appellant.
The appellant had worked in a hotel as a chef in 1961 or 1962 and then began working in the restaurant where he met the complainant's mother in 1968. During the trial he stated that he used to work night shifts which would finish at 11pm.
The trial judge noted that the appellant was of previous good character and had a good and productive work life over many years.
The appellant has two convictions under s.49 of the Road Traffic Act, dating back to year 2000.
The appellant has no previous convictions for sexual offences.
The trial judge noted that notwithstanding that the offences occurred 45 years previously, the victim...
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