Court of Appeal: Man who raped nieces loses appeal against severity of sentence

About this case:

• Citation:
  [2018] IECA 281
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

The man, who had a history of serious sexual offences and convictions for burglary, was sentenced to cumulative sentences of thirteen years in May 2017.

Dismissing the appeal, Mr Justice John Edwards was satisfied that there were no errors of principle in the sentences imposed on the man who was described as having a major pattern of serious sexual offending.

Background

In February 2017, WM pleaded guilty to three counts of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990, and four counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990.

The four victims in the case were WM’s nieces, and the rapes and sexual assaults were all carried out when the girls were staying at their grandmother’s house between 2001 and 2010, when they were between the ages of 7 and 16 and WM was aged between 33 and 42. WM also lived in the house at the relevant times.

During a Garda investigation into an unrelated matter, WM’s offences against two of his nieces came to light, and he was arrested in February 2015. It was only after his arrest that two other nieces came forward with their complaints. In victim impact statements considered by the Court, WM’s victims described how they were too afraid to tell anyone what happened to them, how they were terrified, avoided going to their grandmothers house knowing that he would be there, continued to experience nightmares, and contemplated suicide as a result of the abuse they suffered.

Previous convictions

At the sentencing hearing, the Court heard that in 1997, when WM was 29, he was convicted of ‘unlawful carnal knowledge of a female under the age of sixteen years’ contrary to s.2 of the Criminal Law (Amendment) Act 1935. The victim was WM’s 14-year-old cousin who became pregnant as a result, and WM received a wholly suspended 18-month prison sentence.

WM also admitted to ‘a further similar type of conduct on a child of 16 or thereabouts’, who also became pregnant. While WM was not aware if he was responsible for that pregnancy, it was stated that on his own admission there was a major pattern of serious sexual offending.

WM also had previous convictions for a number of burglaries of residential homes and shops, committed when he was in his early 20s, for which WM served a custodial sentence of 18 months.

Sentencing

The sentencing judge stated that the maximum penalty for the sexual assaults was a sentence of 14-years imprisonment, and for the rape offences was imprisonment for life. The sentencing judge explained that the appropriate starting point for each of the rape offences was around 12 years, and that a deduction 3 years was appropriate considering the late guilty plea. Properly applying the principles of proportionality, sentences of 7 years imprisonment for each of the three rape offences were ordered to run concurrently. A sentence of 1 years’ imprisonment for one of the sexual assault offences was ordered to run concurrently to this, and sentences of two years for each of the remaining three sexual offences were ordered to run consecutively.

As such, WM was sentenced to a total of 13 years imprisonment, with five years’ post-release supervision.

Grounds of Appeal

In the Court of Appeal, WM argued that the sentencing judge erred in:

1. Measuring a total sentence of 13 years (with 5 years’ post-release supervision) in all the circumstances of the case;
2. Measuring 2 years in each case as an appropriate period for sexual assaults in which there had been a plea of guilty;
3. Making each such sentence consecutive;
4. Failing to afford adequate mitigation to WM for his intellectual limitations as found in the psychological report;
5. Failing to give sufficient weight to the pleas of guilty entered in relation to the offences;
6. Effectively punishing WM for a later allegation both in rejecting the findings of the psychological report as to the likelihood of his reoffending and in deciding to mark his lack of candour.

WM submitted that in the course of sentencing, the judge focused excessively on specific deterrence and imposed disproportionate sentences as a result. Mr Justice Edwards considered specific deterrence to be a legitimate sentencing objective, and that this objective was naturally of concern to any sentencing judge in the case of a sexual offender.

In WM’s case, Mr Justice Edwards said that the sentencing judge was entitled to reject the psychologists’ assessment of WM as being at moderate-low risk of re-offending because ‘it was clear to him that the psychologists had not been provided with benefit of full information’.

Considering the seriousness of the offences committed by WM against his nieces, Mr Justice Edwards said that this was manifestly a case for consecutive sentences having regard to the multiplicity of victims and the overall incidence of offending.

Finding that the sentences were not too severe or excessive, Mr Justice Edwards was satisfied that the sentences imposed were “proportionate, both individually and cumulatively”. Dismissing the appeal, Mr Justice Edwards stated that the Court did not find any errors of principle.

• by Seosamh Gráinséir for Irish Legal News