Court of Appeal: 16-year sentence upheld for man convicted of violent sexual assaults against sex workers

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 212
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Aileen Donnelly

In so ruling, the court upheld the trial judge’s decision that the offences should run consecutively. The court was also satisfied that the principle of totality had been properly applied in the case by the sentencing judge.

The appellant had argued that the trial judge failed to give adequate weight to the mitigating factors in the case, including his early plea of guilty, that he had been abusing substances at the time and that he attempted suicide after the first offences.

However, the court was not persuaded that any of the mitigation warranted a further reduction in sentence.

Background

The appellant, Mr Noel McKeon, was convicted on charges arising from two separate incidents in June 2016 and February 2018. Both of the victims were sex workers and had been contacted by the appellant for their services.

In June 2016, the first victim engaged in consensual sex with the appellant following payment. However, she quickly became concerned as the appellant made remarks that she was Romanian (she was not) and a parasite. He then demanded more sex, forcibly undressed her and was verbally abusing. He slapped her in the face.

The first victim screamed for help from neighbours and went for the door. However, the appellant slammed her head against the door handle, chocked her and dragged her by the hair yelling “Romanian, Romanian.” She was punched in the face, chest and ribs. She also had jewellery ripped from her ears and neck and money taken from her wallet.

The appellant forcefully penetrated the victim’s vagina with his fingers despite her continued screams. The victim escaped naked through the kitchen window, although the appellant tried to stab her with a kitchen knife in the ankles. The victim then hid while the appellant calmly left the apartment.

The first victim immediately went to the gardaí and the hospital to treat her injuries. The appellant was nominated as a suspect and was interviewed by gardaí. An informal identification procedure took place in October 2016, where he was identified by the victim. However, he was only re-arrested in May 2018.

The second victim was a Romanian national, where the appellant sought unprotected sex but this was refused. He subsequently took off his condom during sex, when he was then asked to leave. The appellant then punched the victim, pushed her down and raped her. The victim went to the gardaí the next day and the appellant was arrested in April 2018 for interview.

The victims both made victim impact statements which indicated their injuries and, further, the fear in which they lived following the assaults.

The appellant pleaded guilty to the offences eight months before the trial. In mitigation, the appellant mainly focused on his early plea of guilt, the fact that he was abusing drugs at the time and that he was remorseful for the crimes. Insofar as remorse was pleaded, the appellant claimed to have attempted suicide following the first assault. He also said that he accepted he needed anger management therapy.

The sentencing judge considered that the crimes were very serious, noting that they were committed against sex workers and involved violence, robbery and xenophobic sentiment. The victims had been degraded and seriously affected by the events. As such, the court felt that it was appropriate to impose consecutive sentences for the offences.

The court identified a headline sentence for both offences as 25 years, adjusted downwards to 20 years under the totality principle. After taking mitigation into account, the court imposed a 16-year sentence, with the final two years suspended on conditions. The appellant appealed the severity of the sentence.

Court of Appeal

Delivering judgment in the appeal, Ms Justice Aileen Donnelly began by noting that there was no explanation for the 19-month gap between the appellant being identified by the first victim in 2016 and his re-arrest in 2018. The court considered that an “unsettling aspect” of the investigation.

On the substantive issues in the case, the court held that it was well-established that consecutive sentences could be imposed where there were different victims in separate offences. As such, there was no error by the trial judge to impose consecutive sentences here (People (DPP) v. F.E. [2019] IESC 85).

The appellant’s main point on appeal was that the totality principle had been breached by the trial judge, resulting in a “crushing” sentence. The court applied cases such as People (DPP) v. S.C. [2019] IECA 348 and held that the trial judge gave a significant reduction in the overall sentence to reflect the totality principle. The sentence was reduced from 25 to 20 years, with the court stated that this was clearly appropriate in light of the violent offending.

The court also noted that the attempted suicide of the appellant following the first offence was, if anything, an aggravating factor rather than a mitigating factor. This was so because the appellant was aware of his wrong behaviour but persisted with the second offences.

Further, the court considered that significant mitigation had been provided to the appellant with the final sentence of 16 years with two suspended on conditions. The court noted that the guilty plea was somewhat lessened by the fact that the case against the appellant was strong in both cases.

The remorse shown by the appellant had to be viewed in a context of repeated offending. The fact that the appellant took responsibility for the crimes had been reflected by the trial judge in the sentence.

Overall, the principle of proportionality was not breached in the case. The crimes were “extremely grave offences carried out with considerable violence” over an 18-month period. There had been a “sinister xenophobic context” to the offending and the appellant did not stop even though he had been questioned by gardaí after the first incident.

As such, the court dismissed the appeal.