About this case:

• Citation:
  [2023] IECA 136
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

Delivering judgment in May, Ms Justice Isobel Kennedy held that the nominated headline sentence of nine years was correct although it would have been higher if the accused had been older at the time of the offending. However, it was held that the total sentence did not reflect the seriousness of the offending which had many aggravating factors. Accordingly, the court increased the sentence to seven years’ imprisonment with the final year suspended.

Background

The respondent was the older brother of the two victims. From the age of 14, he abused DP by raping and digitally penetrating her. She was aged between nine and 11 during this offending. She outlined how sexually assault occurred on a weekly basis and she would regularly be disturbed at night by the respondent touching her vagina.

The second offending occurred against LR, who was aged between six and 10 years at the time. She also suffered multiple incidents of digital penetration and rape over an extensive period. She would be assaulted while her parents went out for evening walks up to four times a week.

The offending was uncovered following a phone conversation in December 2018. To that point, neither girl thought the other had been abused. However, the respondent would admit the abuse to his family.

The respondent was arrested in February 2019 and initially denied raping the victims. A trial date was adjourned to assess his fitness to stand trial and, later, the Covid pandemic intervened. Subsequently, it was indicated that pleas would be entered.

During the sentence hearing, the respondent’s personal circumstances were outlined. In particular, he had no previous convictions and had a history of mental health difficulties. He had been hospitalised at 15 for these difficulties and psychological reports had been prepared for the court.

In sentencing the accused, the court outlined that the appropriate sentence was much less than that which would have applied to an older adult. A headline sentence of seven years was nominated for the rape of DP and three years for indecent assault. Further headline sentences of nine years and three years were nominated for the rape and sexual assault of LR.

The sentencing judge acknowledged the guilty plea (albeit a late one), the letter of apology and the remorse shown by the respondent. It was also noted that he did not have other convictions, had a solid work record and led a quiet life.

However, the aggravating factors included the young age of the victims, the duration of the offending, the abuse of trust, exploitation and destruction of their childhoods which had a lasting impact.

Accordingly, sentences of four-and-a-half years and two years were given for the offences against DP. The court also imposed sentences of six years and two years for the crimes against LR. All sentences ran concurrently with a final 18 months suspended, meaning that the total time served would be four-and-a-half years.

Court of Appeal

The DPP appealed the decision to the Court of Appeal on the grounds of undue leniency. In essence, it was argued that the overall sentence amounted to a substantial departure from the appropriate sentence based on the principles in People (DPP) v Stronge [2011] IECCA 79.

It was emphasised that 48 counts were contained in the indictment and the DPP accepted pleas on four counts on the basis that the remaining counts would be taken into consideration. It was also pointed out that, for an appreciable part of the offending, the respondent was an adult.

While the appellant had been assessed for borderline intellectual functioning and had “some form of schizoid/autistic to his personality”, it was submitted that the respondent knew right from wrong and the harm that he was causing to the victims.

In response, the respondent relied on comparator cases which provided for lower sentences where offences were committed by minors (see People (DPP) v H(M) [2014] IECA 19; People (DPP) v JH [2017] IECA 206). The respondent also relied on his mental health and cognitive abilities as mitigating factors. Further, it was submitted that turning 18 years old was not an automatic switch to maturity.

Delivering judgment in the case, Ms Justice Kennedy held that the focus of the appeal was the nine-year headline sentence for the offending against LR. It was held that the seven-year headline sentence for the offences against DP was within the margin of appreciation afforded to a sentencing judge.

The court went on to describe the nature of the offending against LR. It was said: “This case bears the hallmarks of many cases which this Court all too frequently sees; vulnerable injured parties, the breach of trust, dominion, prolonged offending, committed in secret, manipulative conduct, humiliation and severe impact on an injured party.”

As such, the court held that the “offending is of a most serious order”. It was open to impose consecutive sentences in the present case, the court said. However, whether the sentence was concurrent or consecutive, the headline sentence had to take into account the moral culpability of the accused and the harm done.

The court held that, if the respondent had been older, a nine-year headline sentence would have been a substantial departure from the norm. In the particular circumstances of the accused, the headline sentence was lenient but not unduly lenient, the court said.

The court noted that the actual sentence had been reduced by a third (six years) and a further 18 months were suspended to allow the respondent to return to the community. The court outlined that the headline sentence had taken account of the respondent’s age and level of maturity, and this did not fall for consideration again under the discount for mitigation.

Although credit should have been given for the guilty pleas, the remorse and apology, the court held that the ultimate sentence did not reflect the offending conduct.

As such, the court re-sentenced the respondent. Having assessed all the relevant aggravating and mitigating factors, the court held that the appropriate sentence was seven years’ imprisonment with the final 12 months suspended.

Conclusion

The court allowed the appeal and substituted the sentence for the rape of LR. All other sentences were unchanged. The respondent was to remain on the sex offenders register for life.

The People at the Suit of the Director of Public Prosecutions v. CR [2023] IECA 136