About this case:

• Citation:
  [2023] IECA 259
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

Delivering judgment for the Court of Appeal, Mr Justice John Edwards stated that “to engineer a situation where the appellant was likely to be released from the children detention centre where he is presently being held in advance of being transferred to an adult prison would not have been a legitimate exercise of the judge’s discretion. Where a sentence is to be served is a matter for the executive”.

Background

The appellant was arraigned in 2022 for five counts of sexual offences contrary to the Criminal Law (Rape) Amendment Act 1990 (as amended) alleged to have been committed when he was 13 years old against his younger cousin, who was seven years old at the time.

The appellant pleaded guilty to counts 2–5, and plead not guilty to a count of rape contrary to s.4 of the 1990 Act, for which he was subsequently tried and convicted on 12 October 2022. On 14 November 2022, the appellant was still a minor when he appeared before the Central Criminal Court for sentencing.

The Central Criminal Court

The sentencing judge considered the factual background of the case and the fact that the appellant had warned the complainant that what occurred between them was a “secret”, and that if she made any disclosure that “he would tell a lie”. The sentencing judge also acknowledged the impact on the young victim and considered ss.96 and 143(1) of the Children Act 2001, which stipulate that detention should be imposed on a child only as a last resort and where a place in a children detention school is available.

The Central Criminal Court further considered the gravity of the offending, and the aggravating factors such as the impact on the victim, the appellant’s attempt to bind her to secrecy, that there were multiple counts involving a penetrative element, the age gap between the parties and the large power imbalance that this gave rise to, the disturbing nature of the offending and that the complainant was violated in her own home.

The sentencing judge listed the mitigating factors in the appellant’s favour, including the appellant’s young age at the time of his offending, his cooperation with the investigation, his lack of previous convictions, that his defence declined to cross-examine the complainant, his engagement with the probation services and the National Interagency Prevention Programme, the reports from those bodies attesting to his remorse, his guilty plea in respect of four counts, and his level of maturity. The judge considered the best interests of the appellant, the victim and of the protection of society, in line with s.96(5) of the 2001 Act.

By reference to The People (DPP) v. T.D. [2021] IECA 289 in respect of the aggravating factors, the sentencing judge nominated headline sentences, taking notice of the approach of the Sentencing Council of England and Wales which recommends that that sentence within the region of one half to two-thirds of the adult sentence might be adopted in the case of minors between 15 and 17.

Having sentenced the appellant to two years in respect of the s.4 rape count, and to 18 months each on the remaining counts, the defence expressed concern that the sentencing judge’s remark concerning the anxiety on part of the victim “at the prospect of a trial taking place” was ostensibly taken into account in sentencing and that this was not grounded in evidence, and the defence would seek to appeal the ruling.

Having acceded to the defence’s request not to finalise the sentence, the sentencing judge adjourned the matter to 8 February 2023, and on that date imposed a revised sentence in light of the fact that the appellant was approaching 18 years old. The Central Criminal Court ordered that the appellant be conveyed to a Children Detention School to serve a 1-year sentence for rape contrary to s.4 of the 1990 Act, and concurrent 9-month sentences for the remaining counts.

It was also ordered that the appellant be subject to notification obligations and post-release supervision for two years from his date of release, pursuant to the Sex Offenders Act 2001.

The appellant appealed on grounds including his treatment at the time of sentencing, the imposition of a custodial sentence as opposed to part or whole suspension of that sentence on the basis that the appellant was a juvenile, the reliance on DPP v T.D., and an alleged delay in processing his case resulting in the prospect of his serving a period of a sentence in the sex offenders wing of an adult prison.

The Court of Appeal

Mr Justice Edwards began by considering the probation report concerning the appellant which had been before the Central Criminal Court. The report detailed that the appellants father had served a custodial sentence for the sexual abuse of his eldest sister, which resulted in the breakdown of his parents’ relationship. The report further described the appellant as having no history of significant mental health issues, no involvement in hobbies or prosocial activities, and no history of substance or alcohol abuse.

The Court further noted that following the disclosure of his misconduct, the appellant was referred by Tusla to the National Interagency Prevention Programme, as part of which he engaged in an offending behaviour focused intervention.

Turning to the remarks of the sentencing judge, Mr Justice Edwards observed that following the conclusion of the plea in mitigation, the sentencing judge declined to immediately rule on the appellant’s sentence, adjourning the matter twice before delivering her ruling on 13 January 2023, staying execution to permit a bail application on behalf of the defence.

Mr Justice Edwards expressed a view on behalf of the Court of Appeal that there was no error in the sentencing judge’s approach, and that the matter was approached “with scrupulous care and with the appropriate level of awareness and sensitivity to the appellant’s youth and immaturity at the time of committing these very serious and violatory offences… while at the same time recognising the effects on the victim and the significant impact the appellant’s offending has had on her”.

Considering the count of s.4 rape, the Court of Appeal considered that the trial judge did not err in concluding that an immediate custodial sentence was required due to the seriousness of the offence and the culpability of the appellant, finding that the absence of an option to suspend the sentence “is irrelevant in our view”.

Stating that “even if she had not done so, we think it unlikely that her initial sentence would have been interfered with”, the court considered that the sentencing judge had revisited her decision and that the varied sentence imposed was “the irreducible minimum that would have been appropriate in the circumstances of this case”.

Proceeding to analyse the remaining grounds of appeal, the Court of Appeal found that the trial judge did not err in having regard to DPP v T.D., did not place excessive weight on the aggravating features of the case, and did not inappropriately rely on the principle of general deterrence, noting that “deterrence is a legitimate objective to pursue in sentencing, and it may operate both generally and specifically. There was actually a case here for some specific deterrence. This was not one-off offending.”

Dismissing in limine the fifth ground of appeal that the sentencing judge erred in considering that the prospect of a trial would have caused anxiety to the complainant, the Court of Appeal remarked that it was “fanciful” to suggest that the complainant would not have known of the trial.

In respect of ground six, the Court of Appeal found that the sentencing judge made a substantial discount for mitigation, and no legitimate complaint could be made that she took inadequate account of mitigating factors, and that she took into account the delay factor in the case.

Finally, the court addressed the contention that the sentencing judge attached excessive weight to the appellant’s failure to accept his guilt for the s.4 rape charge, stating that an “offender is not to be penalised for contesting a charge, but if they plead guilty they can avail of the significant mitigation that goes with that. We find no error on the part of the sentencing judge in differentiating between the rape offence, to which the appellant had pleaded not guilty, and the sexual assault offences, to which he had pleaded guilty.”

Conclusion

Dismissing the appeal, the court concluded that the judge’s function was to impose the appropriate sentence as committed by the particular offender, and she properly and faithfully did that in accordance with her judicial declaration.

Director of Public Prosecutions v. O.G.P. [2023] IECA 259