Court of Appeal dismisses appeal against sentence for sexual assault where judge's sentence was within available range.

THE COURT OF APPEAL

[279/2017]]

The President

Whelan J.

Baker J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

S.A.

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered on the 26th day of October 2018 by Birmingham P.

1. This is an appeal against severity of sentence.

2. The sentences under appeal were imposed on 15th December 2017 in the Dublin Circuit Criminal Court. On that occasion, sentences

of nine years’ imprisonment, but with the final 18 months suspended, were imposed in respect of a number of counts of sexual

assault. At the same time, concurrent sentences of three years’ imprisonment were imposed in respect of offences of buggery.

3. The background to the case is to be found in the fact that the appellant is the Uncle, and indeed, Godfather, of the complainant

who was born in January 1989. The Court was dealing with offending that occurred between January 2004 and January 2006. The

injured party was 15 years of age when the offending began and it ended when he turned 17 years. At the time of the offending, the

accused was between 32 and 33 years old. The offending was very frequent and involved oral sex and anal penetration. In a situation

where the anal penetration offences were charged as offences of buggery and gave rise to concurrent sentences of three years’

imprisonment, the focus on this appeal has been on the sexual assault offences where the longer sentences were imposed, the sexual

assault offences involving, as they did, oral sex. It was also the case that the appellant would record the sexual activity that took

place on his mobile phone.

4. In terms of the background and personal circumstances of the appellant, he was born in August 1973. He was 44 years old at the

time of the sentence hearing and he had a good and varied work record involving, among other things, working in an off-licence and in

the security industry. The Court heard that he had experienced difficulty with alcohol over the years and the Court was also told that

he himself had been the victim of similar conduct as a child. He was involved in the care of his elderly mother who accompanied him to

Court. He was a person who came to Court without any previous convictions. A psychological report that was put before the Court

indicated that his cognitive reasoning fell into the low average range and that his abilities were exceeded by 81% of the population.

5. The Judge’s approach to sentencing was to identify a sentence of 12 years’ imprisonment as the starting point or pre-mitigation

point. It is to be noted that the Judge in the Circuit Court has faithfully followed the two-step approach that has been advocated by

this Court. The identification of a sentence of 12 years as the starting or pre-mitigation point is criticised by the appellant who says

that this was too high when considered against a maximum sentence of 14 years. It is also said that not enough weight was given to

the mitigating factors that were present. The Director, on the other hand, says that having regard to the aggravating factors that

were present, the relationship of trust, the age disparity and the duration and intensity of offending, that the starting sentence was

entirely appropriate and that the reduction from 12 to 9 years and then the further suspension of 18 months fully reflected the

factors in favour of the appellant.

6. Counsel for the appellant acknowledges that the offences in issue are serious, but reminds the Court that it has been called on to

deal with cases that were clearly more serious still, including cases that involved multiple victims, referring specifically in that regard

to the case of DPP v. ML which came before the Court as an application for a review on grounds of undue leniency. That was a case

where there were six sisters who were victims of the abuse.

7. In recent times, the Court has, on a number of occasions in the course of appeals, expressed some doubt about the usefulness of

references to undue leniency reviews in the context of appeals against severity of sentence. In the first undue leniency review, the

case of DPP v. Byrne, the point was made that it will rarely be useful to ask the question whether a more severe sentence might have

been upheld. By the same token, in the context of an undue leniency, it may well be the situation that a more severe sentence than

that ultimately imposed by this Court on the review or the sentence imposed at first instance would have been upheld, so the

usefulness of the exercise is, it seems to this Court, somewhat limited.

8. Counsel for the appellant, as indicated, submits that the headline or starting pre-mitigation sentence of 12 years was too high. He

says that had a sentence of ten years, or something close to that, been identified, that there would be little scope to quarrel.

Moreover, he says that whatever about the starting sentence, that the net sentence of seven and a half years is too high and that it

is a sentence which, when imposed on someone like the appellant who has never been in prison, has the capacity to crush him and so

to set back rehabilitation. Counsel says that if it was felt necessary to mark the seriousness of the offending with a starting sentence

of the order of 12 years, that the sentence should have been structured differently and a greater portion suspended.

9. This Court has said time and time again that it is not sufficient for it to intervene, that had it been called on to sentence at first

instance, it might have considered imposing a somewhat different sentence, making the point that, still less, would the fact that an

individual member or members of the Court might have considered a different sentence provide a basis for intervention.

10. In this case, when the question of the extent of the suspension is in issue, it is not enough that the Court or individual members

might have opted to suspend a somewhat different portion and in making that observation, the Court is not suggesting that it would

in fact have opted for any different approach, but simply to draw attention to the fact that the question has to be whether the

sentence actually imposed by the Judge in the Circuit Court fell outside the available range so as to amount to an error in principle.

11. In the Court’s view, the sentencing Judge approached her task with particular care. The sentence that she arrived at was one

that fell within the available range. No error in principle is identified and the Court must dismiss the appeal.