Court of Appeal: Priest who sexually abused and raped 12-year-old has sentence reduced

About this case:

• Citation:
  [2018] IECA 344
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

In 2017, the man was sentenced to a total of eight years imprisonment for rape and sexual assault, to run consecutive to a sentence of seven years imposed in 2014 for defilement of a child.

Stating that the Court was obliged to intervene in circumstances where the sentencing judge incorrectly referred to the previous sentence as one of three-and-a-half years rather than seven years, Mr Justice George Birmingham, President of Court of Appeal, reduced the sentence from eight years to six years.

Background

The appellant, DN, was a parish priest involved in the Board of Management of the local school, attended by a 12-year-old child who he raped and sexually assaulted throughout 2005 and 2006.

The Court heard that DN took the child to his parochial home and another home of his in a nearby village, where DN would force the child to touch his penis, engage in attempts to masturbate him, and place his penis in the child’s mouth.

DN denied the claims and pleaded not guilty at trial.

In 2017, DN was convicted by a Jury in the Central Criminal Court on two counts of oral rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990 and four counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990. DN was given concurrent sentences of 8 years’ imprisonment in respect of each s.4 count, and 4 years for each s.2 count.

These sentences were to be served consecutive to sentences imposed in Wicklow Circuit Court in 2014 in respect of sexual offences against a minor. In the 2014 case, DN pleaded guilty to 20 counts involving defilement of a child between 2007 and 2012. The sentences imposed in Wicklow Circuit Court were concurrent sentences of 7 years’ imprisonment in respect of the offences when the child was under 15 years of age, and three and a half years when the child was under 17 years of age.

In the Court of Appeal, DN brought an appeal against the severity of the sentence imposed by the Central Criminal Court in May 2017. In an earlier judgment, the Court of Appeal dismissed DN’s appeal against his conviction.  

Appeal against severity of sentence

In the Court of Appeal, DN complained that the Sentencing Judge commented that there were no mitigating factors. DN said that this was incorrect, as mitigating factors which should have been taken into account by the Sentencing Judge included:

• - His age (DN was 64-years-old at the time of sentencing);
• - That he was destitute;
• - That he had a history of work and of service;
• - That he had been of good character prior to and apart from his offending behaviour;
• - That he had been admitted to an enhanced regime in prison following guilty pleas in the Wicklow case;
• - That as a former priest convicted of sexually abusing children, his status would be of a pariah upon release.

The Sentencing Judge referred to the fact that the victim was a child, and that ‘the seriousness of the offences was compounded by virtue of the fact that the accused was the local Parish Priest in the area’ where the victim and his family lived, and that DN was involved in the management of the victim’s school.

The Judge said that it was plain that the victim had been groomed by the accused, and ‘referred to the most grave breach of trust as exacerbating the offences and greatly increasing the moral culpability’ of DN.

The victim impact report also showed that ‘the offending had impacted very severely’ on the victim.

The Judge noted DN’s ‘fall from grace and loss of standing in the community’, however, the fact DN continued to deny wrongdoing was considered in light of the fact that the Sentencing Judge ‘saw admissions of responsibility as the first step towards rehabilitation’.

In imposing concurrent sentences of 8 years, the Sentencing Judge said that the appropriate sentence would have been around 10 years if the sentences imposed in the Wicklow Circuit Court did not have to be considered. In this regard, the Sentencing Judge referred to the 3.5 year sentence, apparently in error, given that the effective sentence imposed there was 7 years. DN submitted that ‘the effective global sentence of 15 years with no portion suspended fails to achieve proportionality and failed to address the question of rehabilitation’.

Principle of totality

In the Court of Appeal, Mr Justice Birmingham said that, given there was no admission of guilt in the Central Criminal Court, the Sentencing Judge was entitled to take the view that ‘rehabilitation should not have been to the forefront of his considerations’.

However, the fact that the Sentencing Judge referred to 3.5 years rather than 7 years, raised the question of whether the Judge had intended a global sentence of 11.5 rather than a global sentence of 15 years.

Mr Justice Birmingham said that the Court was obliged to intervene in this situation where the Sentencing Judge ‘was expressly proceeding on the basis that the sentence he was imposing had to be modified from what it would otherwise have been because it was being made consecutive to another sentence’.

In all the circumstances, Mr Justice Birmingham said that if the Court was to reduce the sentence by 3.5 years, the remaining sentence would ‘fail to reflect the seriousness of the offending behaviour that was in issue with the many aggravating factors that were present’. As such, Mr Justice Birmingham said that the appropriate course of action was to reduce the sentences that were imposed in respect of the s. 4 rape counts from 8 years in each case to 6 years.

• by Seosamh Gráinséir for Irish Legal News