The People (DPP) v KS

 
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[2014] IECA 50

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Sheehan J.

256/12

The People at the Suit of the Director of Public Prosecutions
and
K.S.
Appellant

256/2012 - Ryan Birmingham Sheehan - Court of Appeal - 11/12/2014 - 2014 17 4776 2014 IECA 50

Sentencing – Sexual assault – Manifestly excessive sentence – Appellant seeking to appeal against sentence – Whether sentence was excessive in the circumstances

Facts: The appellant, in July, 2012, pleaded guilty to sexually assaulting and falsely imprisoning the victim in his own bedroom, at his home in January, 2011 and also to producing a knife at that time. The sentencing judge imposed concurrent sentences of six years imprisonment on the sexual assault charge, six years imprisonment on the false imprisonment charge and four years imprisonment on the charge of producing an article. In addition, the court placed the appellant on the Sex Offenders Register and further directed that he undergo eighteen months post release supervision by the Probation Service on terms that he comply with their directions. In July, 2012, the appellant filed an appeal to the Court of Appeal contending the sentence was in all the circumstances excessive, stating that the trial judge failed to state adequately or at all his reasons for imposing the sentence which he did, and further that he failed to take properly into account the mitigating factors on the appellant”s personal circumstances. The respondent, the DPP, maintained that there was no error in principle. The appellant submitted that the failure of the trial judge to provide a reasoned explanation for the sentence he was imposing amounted to an error in principle.

Held by Sheehan J that, having noted that the trial judge did not mention that the appellant had never before come to the notice of the Gardai, and that there was no mention of any of the troubling factors in the appellant”s background which were addressed in the psychological report which showed that the appellant was a particularly complex, troubled and vulnerable young man, with many disturbing issues arising in his childhood and adolescence which continued to affect his life, if the trial judge took the view that these issues were irrelevant, it was incumbent on him to explain how he came to that view. The Court was unable to say whether the trial judge considered any of those factors to be relevant to sentence, which was an unsatisfactory situation and led the Court to hold that there was an error of principle in the trial judge”s approach to sentence. The Court therefore decided on that basis to quash the sentence and proceeded to consider the appropriate sentence to be imposed, having given the parties an opportunity to put forward further material in accordance with DPP v Cunningham. Having regard to the appellant”s troubled and difficult background, to the unlikelihood of his re-offending, and therefore to the real prospect of rehabilitation, Sheehan J held that this was a case in which part of the sentence could and should have been suspended.

Sheehan J held that, having noted that the appellant had been accepted for a sex offender”s programme and also noting the Governor”s report which stated that the appellant has been well behaved, the Court would suspend the final eighteen months of the said sentence on terms. The Court therefore confirmed the two sentences of six years imprisonment, but suspended the final eighteen months of each of those sentences on condition that the appellant complete the sex offenders programme.

Appeal allowed in part.

Judgment of the Court (ex tempore) delivered on the 11th day of December 2014 by Mr. Justice Sheehan
1

This is an appeal against sentence.

2

On the 30th July, 2012, the appellant K.S. pleaded guilty to sexually assaulting and falsely imprisoning L in his own bedroom, at his home on the 23rd January, 2011 and also to producing a knife at that time.

3

The learned sentencing judge imposed the following sentences on the 31st July, 2012.

(1) Six years imprisonment on the sexual assault charge.

(2) Six years imprisonment on the false imprisonment charge.

(3) Four years imprisonment on the charge of producing an article.

All sentences to run concurrently.

4

In addition, the court placed K.S. on the Sex Offenders Register and further directed that he undergo eighteen months post release supervision by the Probation Service on terms that he comply with their directions.

5

On the 31st July, 2012, the appellant filed an appeal contending the sentence was in all the circumstances, excessive, stating that the learned trial judge failed to state adequately or at all his reasons for imposing the sentence which he did, and further that he failed to take properly into account the mitigating factors on the appellant's personal circumstances. Further and more detailed submissions were filed by the appellant and detailed replies to these submissions were filed on behalf of the Director of Public Prosecutions.

Background Facts
6

The back ground to the assault which occurred in January, 2011, lies in a friendship between the appellant and the victim which had commenced in October 2009. The parties had met through a social network site and following this, they had further communications through another social network site and then met towards the end of that month.

7

The meetings took place in the appellant's bedroom, in his parent's home on a Dublin estate and the victim who was a childcare worker would visit him there. The appellant suffered from depression and the victim was of great assistance to him particularly one evening when he had self-harmed.

8

The relationship continued for a period of about twelve months during which time the appellant and the victim would play Sega in his bedroom and also watch DVDs.

9

The relationship appears to have tapered off towards the end of 2010 when the victim says she was reluctant to visit the appellant when he was on his own, the reason for this being that the appellant was drinking at the time and the victim said she did not like this because when he was drinking he would get very cuddly with her. The victim knew at that time that the appellant had a girlfriend.

10

Then on the 21st October, the appellant sent a text to the victim saying that he had broken up with his girlfriend, that he was upset and would she call over. At the time that the victim received the text, she was out with her parent's having a meal, but her father drove her over to the appellant's home and she arrived there at 11.30 pm.

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