Court of Appeal dismisses appeal against excessive sentence for multiple rape and sexual assault convictions.

THE COURT OF APPEAL UNAPPROVED NO REDACTION Record No: 215/2023 Neutral Citation Number [2025] IECA 271 Charleton J. McCarthy J. O’Moore J.

Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent/ -AND-

P.C.

Appellant/

JUDGMENT of the Court delivered by Mr. Justice Brian O’Moore on the 25th day of November, 2025.

Introduction

1. The appellant is appealing the sentence imposed on him by the Circuit Court on the 7th of June 2023 in respect of Bill No. CCDP0154/2020.

2. On the 25th of April 2023, the appellant was found guilty by unanimous verdicts of five counts on the indictment:

a) Counts 1 and 2 relate to the offences of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 6 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990.

b) Count 3 was the offence of rape contrary to section 4(1) of the Criminal Law (Rape) (Amendment) Act 1990.

c) Counts 4 and 6 referred to the offence of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37 of the Sex Offenders Act 2001.

3. The appellant was not found guilty of count 5 and count 8 on the indictment. These counts related to a sexual assault allegation and a false imprisonment allegation.

4. The trial judge indicated a headline sentence of 12 and a half years’ imprisonment in terms of all three rape counts and reduced the headline by one and a half years to a period of 11 years’ imprisonment on counts 1,2, and 3. The appellant was sentenced to 20 months’ imprisonment on count 4, and 25 months’ imprisonment on count 6. The sentences were to run concurrently.

5. By Notice of Appeal, dated the 14th of November 2023, the appellant set out the grounds of appeal. These focus on two main arguments; that the trial judge erred in setting too high a headline sentence, and in failing to suspend any portion of the custodial sentence imposed.

Counsel for the appellant argue that the sentencing trial judge erred in law and/or in principle in passing an excessive sentence, having regard to all the circumstances of the case, thereby failing to have adequate regard to the principles of the established case law, proportionality, and totality in imposing the said sentence.

Background to the Appeal

6. The relevant offences in this case occurred over a five-year period (between the 21st of December 2008 and the 20th of December 2013). The complainant was between the ages of seven and twelve years old at the time of the offending, and the appellant was between the ages of 41 and 45 years old. The appellant is a relative of the complainant.

7. The appellant had 12 previous convictions. In respect of the most relevant previous conviction, on the 27th of March 1998 the appellant was sentenced to three years’ imprisonment for sexual assault. The victim in that offence was 15 years old at the time.

The appellant did not accept the verdict of the jury and maintained his innocence.

8. When the complainant was taken into care with her siblings, she struggled due to the abuse that she had suffered at the hands of the appellant. She was eventually moved to a residential unit where she received good support and disclosed the abuse. She submitted a powerful victim impact statement at the sentencing hearing which set out the profound impact of the offences on her mental health and wellbeing.

9. The counts of sexual assault occurred in the appellant’s house and his trailer, which were situated near the complainant’s home. The appellant said to the complainant during the first rape that: “you don’t have to be ugly anymore” (Transcript, 25th of May 2023, Page 6, Line 34). The second rape occurred when the appellant told the complainant to go to his trailer for safety when a fight broke out in the estate. The appellant forced himself on the complainant, pulled down her pants, and raped her. The s.4 rape occurred on the bed in the appellant’s trailer. There was also an incident of sexual assault in the appellant’s caravan where the appellant stroked the complainant on her bottom.

Submissions on Appeal

Appellant’s Submissions

10. Counsel for the appellant argue that, although the appellant’s conduct was deserving of a significant term of imprisonment, proportionality requires that the overall sentence be less severe than sentences imposed in cases of “prolonged and consistent abuse”. To illustrate this point, counsel refers to case-law of this Court.

11. Counsel for the appellant submit that the trial judge set the headline sentence of 12 and a half years’ imprisonment at the midway point of the category of “most serious cases”, as outlined in the judgment of Charleton J in People (DPP) v. F.E, at paragraph 59:

‘There is a category of rape cases which merit a headline sentence of 10 to 15 years’ imprisonment. What characterises these cases is a more than usual level of degradation of the victim or the use of violence or intimidation beyond that associated with the offence, or the abuse of trust.’

12. Counsel submits that the offending in People (DPP) v L.D. IECA 53, “by virtue of its frequency and the fact that two victims were involved, was of a much greater degree of gravity than the offending in the present case” (paragraph 15 of submissions). The appellant in that case was convicted of 13 rapes and 6 sexual assaults committed against one victim who was between the ages of 7 and 23 years old, and of 11 rapes committed against the other victim while that victim was between the ages of 5 and 15 years old. The offender was the father of the victims. The effective sentence in the present case is 11 years’ imprisonment compared to the effective sentence of 12 years in L.D.

13. Counsel refers to the People (DPP) v D.W. [2018] IECA 143 in their submissions at paragraphs 16 and 17, where the offending was extremely grave:

‘The offending in People (DPP) v D.W. [2018] was, by any standards, extremely grave.

This was an appeal against severity of sentence, that Appellant having pleaded guilty to 19 counts of rape, all committed against his step-daughter. The following extract from this Court’s judgment provides a brief summary of the essential facts:

“The complainant was about 11 years of age when the appellant moved in with the complainant’s mother and her family. The house in which [they] lived at this time was a three bedroom, semi-detached, property and the appellant would rape the complainant three to four times a week, usually on the landing. It would regularly occur when the complainant’s mother was out of the house at Bingo on a Sunday night. On other occasions, the appellant would rape the complainant when her mother was out working. He also sometimes raped the complainant upstairs on the landing even when her mother was down stairs, and [the Detective Sergeant] told the court that on these occasions the complainant would be “gripped by fear” that her mother would come upstairs...”

It appears that the Appellant in that case continued to abuse the complainant in this manner over a period of five years. He was sentenced to 18 years’ imprisonment on each count, with the final six years conditionally suspended, all sentences to run concurrently. This resulted in an effective sentence of 12 years’ imprisonment for conduct that it is submitted is immeasurably more serious than that in the present case’.

14. At paragraph 18 of their submissions, counsel refer to the case People (DPP) v P. McL [2022] IECA 234:

‘People (DPP) v P. McL [2022] concerned prolonged, serious and persistent sexual abuse by a father of his daughter. The indictment contained 54 counts, including several offences of rape, s. 4 rape, aggravated sexual assault and sexual assault. The offending extended over a 16-year period beginning when the victim was 6 or 7 years of age. The Accused in that case pleaded guilty (though it was a late plea) on a representative basis. This was an undue leniency application, the original sentence having been 12 years with the last 18 months suspended. This Court held that the appropriate headline sentence was 22 years, reduced to 17 years to account for various mitigating factors. Again, however, it is submitted that the offending, in terms of its nature, frequency and duration, was vastly more serious than that in the present case’.

15. It is submitted by counsel that the application of this principle justifies the imposition of a headline sentence lower than that determined by the trial judge in the present case.

Mitigating Factors & Lapse of Time

16. Counsel for the appellant placed significant emphasis on the fact that the appellant had not committed further offences between the date that the last offence was committed and the date of the trial, excluding minor road traffic offences. Counsel submit that this period of time amounted to almost 10 years.

17. In their submissions at paragraph 21, counsel make the following argument:

‘During his plea in mitigation, counsel for the appellant placed considerable emphasis on the fact that the appellant had not committed any further offences between the date on which the last of the offences of conviction was committed and the date of trial (assuming that a few minor road traffic offences dealt with by way of fine in the District Court can be discounted). This amounted to a period of almost 10 years. The Appellant was first arrested in respect of the present offences in 2018, approximately five years after the last of the present offences was committed. Counsel made particular reference to the judgment of Charleton J (while sitting in the Central Criminal Court) in People (DPP) v P.H. [2007] IEHC 335, Charleton J. outlined at paragraph 26:

“The court might then usefully look at the date on which the offences were committed. A sentencing court, in structuring any sentence, is obliged to have regard to the subsequent life circumstances of the victim. In terms of settling on the final tariff of sentence, the offender’s conduct in the intervening years will be of particular importance. If there was evidence of genuine repentance of the offending;

if the offender had led a good life of family, or friendship, and work; or if the offender had sought in some meaningful way to make up for his abuse of the victims, this should be taken into account. The reason that I mentioned these factors is that part of the settled sentencing principles operated by the Superior Courts emphasise that while punishment must be meted out to an offender in order to ensure the social stability of the community, and that deterrence is a necessary aspect of sentencing policy, one of the ultimate goals of the sentencing processes is the rehabilitation of the offender. If he has managed to effect that purpose, in the intervening years between offending and sentence, by his own efforts, then, it seems to me, a discount, perhaps substantial in appropriate cases, of the relevant sentence might be contemplated.”

This was quoted with approval by the Supreme Court in People (DPP) v M.J. [2022] IESC 50 and was mentioned by this Court in People (DPP) v S.H. [2023] IECA 206’.

18. Counsel further submits, at paragraph 24, that:

‘The Court placed some emphasis on the fact that the Appellant had a previous conviction for a sexual assault, and from the manner and context in which the Court referred to that previous conviction, it is submitted that the trial Judge regarded it as cancelling out any credit that might be given for the absence of convictions over the decade preceding his conviction for the instant offences. It is submitted that the previous sexual assault conviction, which related to an offence committed almost 30 years earlier, was entirely irrelevant for this purpose. It is true that the Appellant had previous convictions, but he was still entitled to some credit for not having reoffended, apart from the few minor road traffic offences already mentioned, since 2013. While it is acknowledged that the degree of mitigation attributable to this factor may be modest, it is respectfully submitted that it nonetheless constitutes a mitigating consideration—one to which the Learned Trial Judge failed to afford adequate weight, particularly in light of the severity of the sentence ultimately imposed’.

19. At paragraph 26 of their submissions, counsel state that:

‘…a considerable body of empirical and academic research over the past 25 years or so has shown that desistance from crime is usually a gradual process, whereby an offender “slows down” (in terms of committing offences) until they gradually stop. Whether and when the offender reaches a point of complete desistance can depend crucially on the kind of support received from a variety of sources, including state agencies such as the courts.

An offender who is on the path of desistance can be greatly encouraged to persevere if a court signifies that it has confidence in their capacity and willingness to maintain a lawabiding lifestyle’.

20. Counsel’s submissions make reference to the case People (DPP) v Kavanagh [2020] IECA

13 (paragraph 27 of submissions):

‘…[this case] which arose from an undue leniency application, the Defendant, on pleading guilty to a money laundering offence, had been sentenced to three years’ imprisonment with

18 months suspended. The DPP’s main argument was that, while the three-year sentence might be unobjectionable in itself in light of the mitigation that was present, the suspension of half that term rendered the ultimate sentence unduly lenient. This Court held that while the sentence was very lenient, it was not so unduly lenient as to warrant intervention. With regard to the period of suspension, the Court said[ at paragraphs 15 and 16]:

“Although the sentencing judge spoke in terms of rehabilitation, this was not in truth a case in which rehabilitation, in the positivist sense, was required. The respondent had no underlying condition, or addiction or problem which required to be treated or addressed and which if treated or addressed would enable him to avoid committing crime in the future. Rather, the sentencing judge’s objective was to facilitate the reformation of the respondent in the interests of society, by imposing an appropriate prison sentence (3 years) to mark society’s deprecation of what he had done, while at the same time suspending a significant proportion of that sentence (50%) so that only eighteen months of the indicative three year term needed to be actually served, so as to promote desistence and incentivise the respondent to stay out of trouble in the future in circumstances where there were grounds to be hopeful that if given a further chance to turn away from crime that he would do so. In addition to offering a positive incentive, such a sentence also has the effect of holding a Sword of Damocles over the offender for the duration of the period of suspension. It therefore seeks to achieve future behaviour modification primarily through incentive, but also to some extent through deterrence, while at the same time still requiring the offender to spend some time in custody both as censure and as punishment by way of hard treatment in the hope of inducing in him as a presumed moral actor recognition of the unacceptability of his conduct and that his punishment is deserved”’.

21. Counsel submits that the trial judge did not consider whether rehabilitation was a relevant consideration in determining the sentence when this should have been a consideration. They make this argument with reference to the period of non-offending, as mentioned above.

22. Counsel responds to the idea of a lengthy period of post-release supervision (seven years)

to incentivise desistence and rehabilitation at paragraph 30 and 31 of their submissions:

‘…it is submitted that such an argument is misconceived for three reasons:

the fact that post-release supervision happens to be available because the offences of conviction are of a sexual nature should not deprive an offender of the opportunity afforded by part-suspension to secure conditional release from custody at some point before the entirety of the sentence has been served.

any such release from custody is conditional on the offender abiding by the conditions of suspension, which will typically be designed to promote rehabilitation, desistance or both. In this connection, it must be recalled that, as this Court pointed out in Kavanagh (above), the prospect of return to custody to serve out the balance of the sentence operates as a Damocles’ sword over the offender’s head. This provides a real incentive to remain law-abiding. Failure to abide by the terms of post-release supervision is also an offence, but this requires a separate prosecution. As a summary offence, it is punishable with a fine or, at most, a short term of imprisonment.

The third reason revisits the submission made at paragraph 26 herein concerning desistance and the importance of affirming the court’s confidence in the offender’s capacity to avoid future offending—an approach that also supports rehabilitation.

Post-release supervision, by contrast, conveys no such affirmation and instead imposes an additional burden. This is not to suggest that part-suspension and postrelease supervision are incompatible; indeed, the encouragement offered by partsuspension may enhance the effectiveness of post-release supervision’.

23. Counsel for the appellant argue that the sentencing judge erred in not considering suspending part of the sentence in this case as this would, in their submission, have favoured desistence and rehabilitation.

24. For the reasons outlined above, it is further submitted that the sentencing judge erred in law and/or in principle by fixing a headline sentence of 12 and a half years, instead of at the bottom of the “more serious” range as seen in DPP v. F.E., and by not having regard to the fact that the appellant had not committed further offences between the date that the last offence of conviction was committed and the date of the trial.

25. Finally, it is submitted by counsel that the Court should have had due regard to the mitigating factors present and erred in not suspending a greater portion of the sentence imposed.

Respondent’s Submissions

Margin of Appreciation

26. Counsel for the DPP submit at paragraph 9 of their submissions that the Court should only interfere with the sentence imposed by the below court where there is: ‘…a sufficient error in sentencing to render the sentence either so severe or so lenient that the court must intervene to correct an error in principle’. The sentencing judge must benefit from a significant margin of appreciation. Counsel maintains that both sentences imposed fell within the margin of appreciation enjoyed by the sentencing judge in this matter.

27. Counsel for the respondent refer to this Court’s judgment in The People (DPP) v Stanescu [2020] IECA 55. They state that this case determined that: ‘a sentencing judge has a wide margin of discretion concerning how to structure a sentence and concerning which objective of sentencing to prioritise’ (paragraph 10 of submissions). At paragraph 10 of their submissions, they submit that this Court in The People (DPP) v Maughan [2018] IECA 343 found that:

‘…simply because the Court, had it been called on to sentence, might have imposed a somewhat different sentence than the one actually imposed, does not provide a basis for intervention. The Court stated that the question is whether the respective sentence fell outside the available range.

…the Court found that simply because the Court, had it been called on to sentence, might have imposed a somewhat different sentence than the one actually imposed, does not provide a basis for intervention. The Court stated that the question is whether the sentences fell outside the available range’.

The Headline Sentence

28. Counsel for the respondent refer to the Supreme Court case of The People (DPP) v F.E., where it was noted, at paragraph 12 in their submissions, that:

‘…the category of rape cases which merit a headline sentence of 10 to 15 years’ imprisonment were cases where there was a more than usual level of degradation of the victim or the use of violence or intimidation beyond that associated with the offence, or the abuse of trust. The Respondent in this matter was of the view that it fell within the category of cases that merited a headline sentence of between 10 years and 15 years.

The degradation of the complainant, the use of violence and intimidation, the abuse of trust, the age of the complainant and the age difference between the Appellant and the Complainant all informed this opinion [Transcript, 25th May 2023, Page 11, Lines 17- 30]’.

29. Counsel further submits, at paragraph 13 in their submissions, that:

‘…the FE case consideration of precedents since the analysis in The People (DPP) v WD, [2021] 1 IR 217 at paragraph 64 that a series of offences is not an ordinary rape and, on the headline sentence, is not to be punished as if such offences were in that lower band of seriousness’.

30. It can be found at paragraph 14 of their submissions that:

‘it was technically open to the sentencing judge to impose consecutive sentences in circumstances where multiple offences occurred over a period of time. The Learned Sentencing Judge did not exercise that discretion. However, the court was entitled to increase to take account of all of the offences in setting the same headline sentence for each of the rape offences. The Appellant degraded the complainant. He hit the complainant in the face on one occasion. He took advantage of his position of trust to the complainant. The complainant’s young age is an aggravating factor. These factors all inform the culpability of the Appellant. The Learned Sentencing Judge took into account the impact of the offences on the complainant. The gravity of the harm caused to the Complainant also lead to the imposition of the headline sentence of 12 and half years’.

31. Counsel’s argument continues at paragraph 15 of their submissions where it is stated that:

‘In The People (DPP) v FE, the Supreme Court noted that the sentence for the most serious offence should be set at a level reflecting the surrounding circumstances. The Appellant’s submission that the headline sentence should have been situated at the lower end of the said category does not account for the fact there were multiple rapes and sexual assaults committed against a young child over a period of about five years.

The headline sentence imposed by the Sentencing Judge was appropriate, and considered in all of the circumstances’.

Refusal to Suspend

32. Counsel refer to The People (DPP) v Broe [2020] IECA 140 where this Court noted that:

‘suspending a sentence in whole or in part will often be an appropriate way of reflecting mitigating circumstances, particularly where amongst the factors which the sentencing judge wants to rewards is progress towards rehabilitation or reform to date, and where he/she also wishes to incentivise continuation along the path’. However, counsel argues that the appellant in the matter at hand did not accept the jury verdict, did not indicate remorse, nor can he benefit from a guilty plea. The submissions continue to state that the appellant had a previous conviction for sexual assault of a child of the age of 15 years and had served a term of imprisonment in the years before the commission of the offences that are the subject of the current appeal.

33. Rehabilitation was considered by the trial judge when imposing the sentence. Counsel’s submissions continue at paragraph 18 with reference to the sentencing judge’s consideration of the issue of rehabilitation when imposing her sentence:

‘This court must always consider rehabilitation and endeavour to structure a sentence with that in mind. Given the way the defendant has met this case, this court has struggled with regard to structuring a sentence and I always endeavour to include rehabilitation’.

34. In their submissions, counsel refer to the case The People (DPP) v AP [2017] IECA 335, where they submit that:

‘In The People (DPP) v AP, this Honourable Court found an error on the part of the sentencing court in failing to suspend a portion of the said sentence in light of the particular circumstances of the convicted person. In this case the appellant was receiving treatment from mental health services and was described as psychologically vulnerable with mood regulation difficulties. This Honourable Court was of the view that the sentencing judge’s approach to the sentencing process was appropriate. The Court went on to state the following:- “However, it considers that bearing in mind the content of the relevant reports, the judge ought to have given consideration to incentivising rehabilitation. There was every reason to believe that the appellant had faced up to his offending and had taken every opportunity to address the problems which contributed to that offending. To this limited but important extent we find an error of principle and will therefore proceed to resentence the appellant as of today’. (paragraph 19 of submissions)

35. At paragraph 20, the respondent’s submissions refer to the case The People (DPP) v Dent [2015] IECA 169 where it was noted that: ‘it was an error in principle to foreclose the option of suspending a portion of a sentence or otherwise incentivise rehabilitation where there is uncontroverted evidence before the court of a demonstrated track record of progress towards rehabilitation”’.

36. Counsel then refer to O’Malley in Sentencing and to the observation that this Court has insisted that there has to be a sound evidential basis for suspending part of a sentence to incentivise rehabilitation [O’Malley, Sentencing: A Modern Introduction (2025), at [12.69], citing The People (DPP) v Coughlan [2019] IECA 173, and The People (DPP) v Cummins [2020] IECA 42, at [21]]. It is submitted by counsel for the DPP that there was no evidential basis to incentivise rehabilitation in this appeal as the appellant did not accept the verdict, nor did he indicate any remorse in relation to his actions.

37. Finally, counsel for the respondent submits that this is a case where the sentencing judge’s approach to sentencing was careful and deliberate. This resulted in the delivery of a reasoned decision. Therefore, it is submitted that the sentence imposed cannot be considered severe when considering all the circumstances.

Analysis and Decision

38. The parties agree that the approach of the sentencing judge was a careful and deliberate one. It is also agreed that the correct headline sentence was one which lay within the range of 10 to 15 years, as described by Charleton J. at paragraph 59 et seq. of F.E.

However, as noted earlier in this judgment the central submission on behalf of the appellant on this point is that, even allowing for the margin of appreciation to be afforded to her, the sentencing judge erred in principle in imposing a headline sentence that was in the middle of the range rather than at the bottom.

39. In advancing this argument, counsel stress that: ‘this was not, therefore, a case of serial and persistent abuse over a period of several years…’. However, this basic submission does not fully describe the nature of the offending in this case. The disparity between the ages of the appellant and the complainant is striking. In addition, the breach of trust is particularly significant; the appellant is the uncle of the complainant and clearly used his relationship with her to carry out his abuse. In her sentence, the trial judge described the circumstances of the rapes of which the appellant was convicted; these are summarised at paragraph 9 of this judgment.

40. These events illustrate starkly the way in which the appellant utilised his access to the complainant in order to abuse her sexually in a most serious fashion.

41. The abuse, while not persistent, nonetheless took place over a number of years. While precise dates are not available, the attacks on the complainant range from the period 2008 to 2010, to the period 2012 to 2013. The degradation visited on the complainant was also severe. The particularly humiliating comment made by the appellant (set out at paragraph

9 of this judgment) stands out. However, equally striking is the comment made by the complainant herself and referred to by counsel for the DPP at the hearing of this appeal, to the effect that the best day of her life was when she was taken into care.

42. It is often observed in cases such as this that references to other sentences are of little use.

Inevitably, the facts and circumstances differ significantly. Often, these differences are so great that no useful comparison can be made. That is the case here. For example, the appellant relies upon the effective sentence in D.W. as being one of 12 years. However, the headline sentence in D.W. was 18 years (in comparison to a headline sentence in the current appeal of 12 and a half years). The reduction in D.W. from 18 to 12 years arose from a number of factors – including, notably, a guilty plea which is absent from this case. Equally, the appropriate headline sentence in P. McL was found by this Court to be

22 years (reduced to 17 years) but again that case was one in which the accused pleaded guilty.

43. None of the other cases relied upon by the appellant’s counsel support the submission that the sentence in the current case was disproportionate.

44. The specific factors in this case (notably the severity of the offences, the degradation of the complainant, the length of time over which the offences occurred, and the breach of trust involved) justify the decision of the trial judge to impose a headline sentence at the middle of what all agree was the appropriate range. No error of principle on the part of the sentencing judge has been made out by the appellant.

45. Counsel for the appellant supplemented this aspect of his submissions by arguing that a lesser sentence than would ordinarily be imposed was appropriate, given the overcrowding of prisons in the State. When asked about the fact that such a submission could have been made to the trial judge (but was not) counsel accepted that this factor could be taken into account by this Court only in resentencing the appellant.

46. While this argument did not feature in the Notice of Appeal or in the written submissions, it arose during the course of exchanges between the Court and counsel for the appellant.

Counsel specifically referred (on this issue) to the judgment of the Court of Appeal in R. v Ali [2023] EWCA Crim 232.

47. Ali was an appeal against severity of sentence. The Court of Appeal allowed the appeal, suspending the sentence of 6 months’ imprisonment imposed by the trial judge. The primary reason for suspending the sentence was the prospect of rehabilitation on the part of the accused. The Court also found (at paragraph 18) that: ‘a further exceptional factor arises from the fact that the appellant was sentenced at a time of very high prison population’. The role that this factor played in the Court’s analysis is set out at paragraph

22 of the judgment. Having referred to the rehabilitation consideration, Edis L.J. went on:

‘Any doubt we may have had on that issue is resolved by this additional factor which we do take into account in dealing with this appeal. This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high’.

48. In Ali, therefore, the high prison population was (a) a supporting consideration in allowing an appeal and (b) a factor which in the main would be relevant to shorter sentences. On no view is the appropriate sentence in the current case a shorter one.

49. Importantly, the judgment in Ali also records the factual basis for the finding that prisons were overcrowded. It refers to a parliamentary statement (of November 2022) announcing Operation Safeguard (by which 400 police cells were to be used to hold persons remanded in custody or serving prison sentences). It also notes an announcement (of February 2023) by the Ministry of Justice about the making available of police cells in the North of England and the West Midlands area. Finally, the judgment quotes a letter from the Deputy Prime Minister to the Lord Chief Justice (also of February 2023) concerning prison capacity.

50. No such documentation, or indeed any documentary indication about the extent of prison overcrowding in the State, was placed before us.

51. It is also worth noting that Ali has since been considered by the same Court in R. v Tripathi [2024] EWCA Crim 769 and in R. v Qasim [2024] EWCA Crim 1655. In the latter case, William Davis L.J. approved the observation in Tripathi that: ‘…the principle to be derived from Ali was clearly aimed at the “cusp of custody” cases’; paragraph 27 of Qasim. William Davis L.J. went on (at paragraph 32):

‘32. We of course accept that there have been concerns in relation to the prison estate, most particularly the male prison estate, for some time. However, the situation at the point at which the Court gave judgment in Ali was extreme. The event which triggered the Court’s consideration of the conditions in prison was the implementation of Operation Safeguard, i.e. the use of police cells to house prisoners. As is well known, crisis conditions persisted for the next 12 months and more after Ali was decided. That led to the introduction in August 2024 of the SDS40 Early Release Scheme. That has released many prisoners after serving 40% of their sentence rather than 50%. At least in the short term that has resolved the gross overcrowding. It certainly resolved the necessity to house prisoners in police cells. The guidance in Ali was given to meet a particular crisis. In our judgment, it did not and does not give the courts a general discretion to adjust the length of sentences to reflect the unsatisfactory state of the prison estate. That would not be a proper function of criminal sentencing. In the absence of a highly unusual factual feature, particular to the individual concerned, a criminal judge must sentence according to the ordinary principles of sentencing. Those principles assume that, when a judge imposes a prison sentence, there will be a prison place available for the offender. We note that at the time of Ali there was a risk that that was not going to be the case. The standard of prison places provided is not, save in exceptional circumstances, an issue for the sentencing judge. If a prison does not meet appropriate standards, then a prisoner may have a public law remedy against the State. That is the means by which the courts can regulate the standards of custodial provision. It cannot be done by judges adjusting sentences that are otherwise mandated by Parliament and the Sentencing Council’.

52. The novel submission based on R. v Ali, therefore, fails on a number of grounds. Firstly, there is no documentary evidence before us of the actual level of overcrowding in Irish prisons. Secondly, the Ali principle (at least in the view of the Court giving rise to it) is at most applicable to “cusp of custody” cases; this appeal is not such a case. Thirdly, and most importantly, the appellant’s counsel accepts that overcrowding in Irish prisons will only constitute a factor to be considered by this Court should we quash the original sentence and proceed to resentence.

53. The second element of the appeal can be dealt with at lesser length. The appellant argues that the sentencing judge fell into error in neither considering nor putting into effect a partial suspension of the sentence. The trial judge is a very experienced criminal judge. It is to be expected that, as in virtually every case, some consideration was given by her to suspending part of the sentence and (as we set out shortly) she clearly did consider this.

The real question is whether she erred in principle in not actually suspending part of the sentence. The submissions of the appellant emphasise the role that a partly suspended sentence might play in incentivising him not to reoffend, and the separate possibility that he might be rehabilitated. Indeed, the written submissions conclude on this point (at paragraph 29) that:

‘[The appellant] was clearly, therefore, on a path towards rehabilitation as well as desistance and it was an error of principle, first, not to consider part-suspension and, secondly, not to grant it’.

54. In fact, the sentencing judge did expressly consider part suspension. Having referred to the appellant’s previous conviction of sexual assault on a 15-year-old child (when he was 27), the lapse of time between the current offences and his conviction for them, his plea of not guilty, and his description of the complainant as “a little liar”, she went on:

‘This court must always consider rehabilitation and endeavour to structure a sentence with that in mind. Given the way the defendant has met this case, this court has struggled with regard to structuring a sentence and I always endeavour to include rehabilitation’.

55. We do not find any error of principle in this approach. The possibility of encouraging the rehabilitation of the appellant was clearly considered by the trial judge. She found nothing to support partially suspending the sentence for that reason. The appellant had not accepted the verdict, he had shown no remorse, and he had been convicted of sexual assault “a considerable time ago” as the trial judge noted. There was no evidence to suggest that the appellant’s rehabilitation would be encouraged by suspending part of his sentence, given these factors.

56. The same considerations are relevant to the argument that lack of any wrongful activity over the time between the commission of these offences and his conviction for them support a view that the appellant was on a path towards desistance as well as rehabilitation. The appellant had been convicted of sexual assault when he was 27 (in 1995). That assault was serious enough to warrant a sentence of three years’ imprisonment. On the analysis presented on his behalf to this Court, by 2008 it would be thought that the appellant was well on the way to both rehabilitation and desistance. He was not. It was in 2008 that the appellant began the abuse of the complainant that persisted for some years. The sentencing judge was entitled, in considering the lapse between these offences and the date of sentencing, to proceed on the basis that considerations of neither rehabilitation nor desistance required that any part of the sentences be suspended.

57. For the sake of completeness, we should note that the written submissions make the case that the trial judge erred in failing to take the lapse in time since the relevant offences into account as a mitigating factor. This was not pressed at the hearing. It is not a strong point.

The sentencing judge noted the lapse of time. She also noted the ‘very limited mitigation available to this court…’, having also stated that she would impose a sentence that would ‘meet the gravity of the case given [the appellant’s] personal circumstances, the mitigation, his age’. The personal circumstances must refer to the appellant’s health conditions described earlier in the sentencing statement, as well as his role in caring for his partner. The only separate mitigating factor was the lapse in time, which appears to have been taken into account in reducing the headline sentence by 18 months.

58. The appellant has not established any of the grounds of appeal advanced before this Court. We will therefore dismiss the appeal.