About this case:

• Court:
  Court of Appeal
• Judge:
  Lord Justice Stephens

The man served just two-and-a-half months of his sentence, and was not subject to a sexual offences prevention order (SOPO).

Since the man had already been released from prison, Lord Justice Benjamin Stephens imposed a sentence of three years’ probation on the man, stating that this would satisfy the need for supervision and intervention so that a SOPO was no longer necessary.

Background

In May 2011, QD was looking after his two-year-old son while his former partner, the child’s mother, was at work. When the child’s mother, MC, returned from work, the child gave an account which was his description of a sexual assault on him committed by QD. MC was too afraid to report the assault to police, and the allegations were only reported when another partner of QD went to the police in 2015.

At Newry Crown Court in September 2018, QD was charged with:

1. Rape of a child under 13;
2. Sexual assault of a child under 13;
3. Possessing an indecent photograph or pseudo photograph of a child;
4. A further count of rape of a child under 13 (added during the course of the trial).

The trial judge withdrew the first and fourth counts from the jury and QD was found not-guilty of the third count. QD was convicted on the second count, of sexual assault on a child under 13 contrary to Article 14 of the Sexual Offences (Northern Ireland) Order 2008.

QD was sentenced to five months in prison, to which he was entitled to 50 per cent remission, but given the length of sentence, he was not subject to licence on release.

The prosecution sought a sexual offences prevention order (SOPO) but this was declined by the trial judge.

Lord Justice Stephens explained that QD was released from custody six months ago, and has been living in England.

In February 2019, QD lost an appeal against his conviction.

Court of Appeal

In the present appeal, the Director of Public Prosecutions (DPP) complained that the sentence and the failure to impose a SOPO was unduly lenient.

The DPP submitted that the starting point should have been a custodial term of four years. He felt the sentence could not be described as “severe punishment” and therefore did not comply with the approach previously set out by the Court of Appeal.

Furthermore, the DPP said that the trial judge incorrectly considered the relevant test in relation to the SOPO to be whether QD was dangerous within the meaning of Article 15 of the Criminal Justice (Northern Ireland) Order 2008 rather than applying the test of the SOPO being necessary as explained in case law.

The DPP relied on a number of cases seeking to establish that the starting point should be four years custody, however, Lord Justice Stephens said none of them were comparable to this case. Lord Justice Stephens did not agree that the starting point should have been four years, but considered a number of reasons why the sentence was unduly lenient.

Firstly, Lord Justice Stephens did not agree with the trial judge that there was only one victim. Emphasising the impact on other family members, especially the victim’s mother, Lord Justice Stephens said that “the harm that has been and will be caused to her is ignored in the submission that there was only one victim and was not taken into account by the judge”.

Lord Justice Stephens also considered the long-term effects the offence would have on the victim, disagreeing with the trial judge that there was not and would not be any harm to him. In this regard, Lord Justice Stephens said there would be real long term emotional harm as the incident affected relationships between his parents, between him and his father, and “may well affect his relationship with his mother”. Lord Justice Stephens added that the lack of any physical injuries, the victim’s young age, and his lack of memory of it “should not obscure the serious psychological harm which is being and will be caused”.

Furthermore, Lord Justice Stephens said that the fact that this was a single incident should not obscure QD’s degree of culpability.

In considering the level of risk to society, Lord Justice Stephens said the offence demonstrated an interest in sexual acts involving young children. He said a SOPO was clearly necessary in this case.

Finding that the sentence was unduly lenient both in relation to the length of imprisonment and the failure to impose a SOPO, Lord Justice Stephens said he would have imposed a sentence of 18 months’ imprisonment and a SOPO, but taking into account double jeopardy it would have sought to achieve an effective sentence of 15 months’ imprisonment and a SOPO.

However, given that QD consented to probation, the court substituted the original trial judge’s sentence of five months’ imprisonment with a three-year probation order containing a number of specified requirements to commence on 16 May 2019.

• by Seosamh Gráinséir for Irish Legal News