About this case:

• Citation:
  [2019] IECA 72
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Patrick J. McCarthy

The man had met a 14-year-old girl on social media in 2015, and although her profile stated that she was 20 years old, he realised that she was under 18 when they met in person.

Dismissing the appeal, Mr Justice Patrick McCarthy said that the aggravating factors were significant, particularly the disparity in age, and the element of aggression on the last occasion he met the girl when she complained that he had raped her.

Background

In 2015, Mr David Hoban began exchanging messages with a 14-year-old girl on social media. Her age on her profile was displayed as 20 years old, but when they met at some stage in April or May 2015, Mr Hoban came to the realisation that she must be under 18.

On 29 June 2015, gardaí received a complaint from the family of the complainant to say that she was missing, as she had not returned from school on a given day. She was eventually located and made a complaint that she had been raped.

An investigation ensued and Mr Hoban was later located in an apartment nearby.

Following arrest and detention, he stated in interview his belief that the complainant was between 15 and 17 years old. Mr Hoban was 26 years old at the time.

Mr Hoban had ten previous convictions for public order matters. He had no previous convictions in relation to sexual offences nor any Circuit Court convictions.

Circuit Criminal Court

On 13 April 2018, Mr Hoban pleaded guilty to two counts of defilement of a child under the age of 17.

On 26 April 2018, Judge Martin Nolan sentenced Mr Hoban to three years imprisonment on count one of the indictment, with counts two, three and four taken into consideration.

Firstly, Judge Nolan said that the starting point was five years. He said the mitigation was clear – Mr Hoban had pleaded guilty, expressed true remorse for what he did, was “well capable of reform”, had a work history, and seemed to be an intelligent man. Judge Nolan described Mr Hoban’s “young life” as having been “troubled by great tragedy”, having “lost a lot of people who were close to him to death in one way or the other”. Nonetheless, Judge Nolan said “everybody is the master of their own ship” and that he didn’t make the right decisions.

“For his own reasons, he had sexual relations with a child on six occasions. That is reprehensible. The age difference is substantial; he was 25, 26. We are not talking about an 18-year-old boy here or a 19-year-old boy; we are talking about a grown man who should have been mature enough to stop himself. He didn’t. So a custodial sentence will be given in this case.”

Judge Nolan refused to suspend part of the sentence, stating that Mr Hoban knew the difference between right and wrong, and that he knew he did wrong on the particular dates.

Court of Appeal

Mr Hoban appealed against the severity of the sentence, submitting that the sentencing judge erred in:

• Measuring a total sentence of 3 years in all the circumstances of the case;
• Measuring three years in each case as an appropriate period for defilement under s.3 of the Criminal Law (Rape) (Amendment) Act 2011, in which there had been a plea of guilty;
• Failing to identify a headline sentence from which to mitigate;
• Failing to afford adequate mitigation to the appellant for his genuine remorse and familial circumstances;
• Failing to give sufficient weight to the pleas of guilty entered in relation to the offences;
• Failing to have sufficient regard to the objective of rehabilitation insofar as same is a component part of any sentence.

The substantive ground of appeal was that an error of principle was made in imposing an excessive sentence. It was submitted that the sentence was “out of kilter” with sentences for like offences imposed previously.

Counsel relied upon general principles pertaining to sentence as established by the authorities and referred to a number of them by way of comparator.

Mr Justice McCarthy said the Court did not wish to downgrade the assistance of comparators, but said it was right to emphasise that each case must be decided on its own facts – one is sentencing the offender before the Court for the crime committed by him.

Mr Justice McCarthy said that the fact the sentencing judge did not set a headline sentence and thereafter apply the relevant mitigating factors was not in and of itself a good ground of appeal.

Satisfied that the sentencing judge had regard to all relevant factors, Mr Justice McCarthy said the Court was satisfied that the sentence was within the margin of discretion available to every trial judge.

The principal mitigating factors were the plea of guilty and the expression of remorse, however Mr Justice McCarthy said the aggravating factors were significant: “in particular, the disparity of age and the element of aggression on what appears to be the last occasion”.

Dismissing the appeal, Mr Justice McCarthy said the Court could not see any error of principle.

• by Seosamh Gráinséir for Irish Legal News