NI Court of Appeal: Court rejects claim that 9-year sentence is unduly lenient in child rape case

About this case:

• Citation:
  [2023] NICA 43
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

The court found that although the sentence was at the lowest end, and could be considered lenient, the trial judge had properly considered all the evidence, and applied the sentence he considered appropriate. Accordingly, the claim failed to meet the test for being unduly lenient. 

Background

This was a reference brought by the NI DPP under section 36 of the Criminal Justice Act 1988 as amended by section 41 of the Justice (Northern Ireland) Act 2002. 

Gerard McKenna was convicted after trial and guilty verdicts of 6 counts, including sexual assault and rape of a child under 13, offering to supply a Class A drug, namely cocaine, and taking and removing a child without lawful authority.

He was sentenced to nine years’ imprisonment and a three-year extended custodial sentence, along with ancillary orders. 

Paul Sheridan pleaded guilty to 6 counts, including rape of a child under 13, and taking and removing a child without lawful authority. He was sentenced to a total period of six and a half years’ imprisonment and a three-year extended custodial sentence, along with other ancillary orders. 

This all occurred when the two respondents, then aged 27 and 23, attended at a children’s home, where one had been a former resident. The first complainant was 12 years of age, and the second complainant was 15. 

The Public Prosecution Service (PPS) maintained that the sentences were unduly lenient. 

The reference

In R v Sharyar Ali [2023] NICA 20, the Court of Appeal explained the nature of a reference. The court may increase a sentence that is unduly lenient, but cannot do so if the original sentence was merely less than that court would have imposed, unless the disagreement resulted from a manifest error. 

Leave should only be granted in exceptional circumstances, and the section 36 reference procedure is not intended to confer a general right of appeal on the prosecution. 

A sentence is unduly lenient where, in the absence of it being altered, it would affect public confidence or the public perception of the administration of justice. Even if a court decides that a sentence is unduly lenient, the court retains discretion about whether or not to interfere with the sentence. 

Consideration 

The reference acknowledged that the judge considered several aggravating features in the case, including the young age of the complainants, the fact that the complainants were resident in a children’s home, their vulnerability, and the provision of alcohol.

There was no suggestion that the judge made an error of law. Prior authorities, such as R v Kubik [2016] NICA 3, established that the higher starting point of eight years for sentencing is appropriate in circumstances where; the rape is committed by two or more offenders acting together; or it involved rape of a child.

The judge’s sentence of nine years was therefore one year in excess of the starting point suggested for cases of this sort. McKenna’s case had little mitigation available, given the fact that he had contested the case, had a poor criminal record, and was continuing to deny his guilt. 

Sheridan’s mitigating factors included his reported very low-level intellectual functioning, his guilty pleas, and his lack of any previous sexual offending, 

The prosecution claimed that an increase of one year from the starting point did not adequately reflect the gravity of the offending. They emphasised the aggravating factors relating to the abduction of the complainants and the provision of drugs and alcohol by the respondents. 

The court stressed that the trial judge heard the evidence and so he was uniquely placed to assess the weight to be given to aggravating and mitigating factors, and to an overall view of the case. 

The PPS noted one area where the judge did not mention the potential supply of drugs by McKenna. However, the court found this was not the most significant factor, given that drugs were not found at any stage. 

Ultimately, it could not be said that the judge did not consider any of the aggravating factors in the case. Rather, the reference came down to the weight the judge placed on the aggravating factors, and it was therefore concerned with the exercise of discretionary judgment. 

It was accepted that the trial judge could have selected a higher starting point, and that a sentence of ten years would not have been manifestly excessive. However, the sentence of nine years, whilst at the lowest end, was within the general scope of the sentences envisaged. 

Sheridan pleaded guilty, which prevented the complainant from having to go through a second trial. On this basis, the court thought the judge was entitled to afford him the reduction that he did. 

Again, Sheridan’s starting point could have been higher, given his plea to two forms of rape, however the court also believed that his mitigation was strong. 

Conclusion 

Ultimately, the court found that the sentences of imprisonment imposed were not insignificant, and were within a range for these offences. 

The court highlighted that the complainants were not removed from the children’s home against their will or taken by the use of threats or force. The sentence would have been considerably higher in this was the case.  

Similarly, if either respondent had had a previous rape conviction, the sentence would have been higher, towards the upper end of the 8-15 year range, to serve as a warning to repeat offenders.

Overall, the court found that nine years was lenient. However, the judge considered all of the relevant factors and applied the weight he thought appropriate to them having heard the evidence. The court was therefore unable to say that the sentence met the high test for undue lenience. 

The court therefore refused leave, and reiterated the fact that, “lengthy extended custodial sentences have been applied in this case to reflect society’s abhorrence of such crimes and to deter those who offend in this way”.