Court of Appeal quashes undue leniency sentence for juvenile rape and re-sentences de novo.

THE COURT OF APPEAL

Record Number: 87CJA/2025 Neutral Citation No: [2025] IECA 297

Kennedy J. Burns J. Owens J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT/

- AND -

D.H.

RESPONDENT

JUDGMENT of the Court delivered (ex tempore) on the 5th day of December 2025 by Ms. Justice Isobel Kennedy.

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s.2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency.

2. There are 64 counts on the indictment and on the 10th of March 2025, the respondent pleaded guilty to 17 of those counts. He was sentenced on the 31st of March 2025.

3. There were two complainants in this matter, DB and SB. In relation to DB, the respondent pleaded guilty to 6 counts of rape contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act 1990 (counts 1, 4, 8, 12, 14 and 17), 3 counts of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990 (counts 21, 25 and 33) and 4 counts of sexual assault contrary to s.2 of the Criminal Law (Rape)(Amendment) Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001 (counts 34, 39, 43 and 48). The respondent received an effective sentence of 5 years in respect of these offences.

4. In relation to SB, the respondent pleaded guilty to 4 counts of sexual assault contrary to s.2 of the Criminal Law (Rape)(Amendment) Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001 (counts 49, 54, 58 and 62). The respondent received an effective sentence of 2 ½ years with the final 12 months suspended in respect of these offences, to run consecutively to the sentence imposed in respect of the offences against DB. The total sentence was one of 7 ½ years, with the final 12 months suspended, therefore amounting to a carceral sentence of 6 ½ years.

Factual Background

5. The respondent is a cousin of the two complainants, DB and SB. In relation to DB, the offences spanned the timeframe from November 2003 to June 2007, when the respondent was approximately 12-15 years old, and DB was approximately 10-14 years old. In relation to SB, the offences spanned the timeframe from August 2005 to December 2008, when the respondent was approximately 14-17 years old, and SB was approximately 7-10 years old. There was a degree of overlap in the offending where the respondent abused both cousins for a period of one year.

6. The respondent’s brother pleaded guilty to 1 count of rape and 1 count of sexual assault, in relation to an incident involving DB.

7. The evidence disclosed that the victims had been living with their grandmother and that the respondent and his brother subsequently moved into that same house as their own house was destroyed by fire.

8. DB stated that throughout her early childhood, the relationship with the respondent was inappropriate. Her first recollection of the offending was when she was approximately 10 years old, and the respondent was approximately 12 years old. The respondent called her into his bedroom on the pretence that he wanted to show her something. He then locked the door behind her and proceeded to rape her. She stated that she told the respondent that it was hurting her, but he continued. She bled in the immediate aftermath. It appears therefore from the outset, even though the respondent was only 12 years old, he had an awareness that this conduct needed to be concealed.

9. She described frequent rapes thereafter; 3-4 times a week at various locations whilst she was in secondary school. The respondent ejaculated on her body and face, and on some occasions, forced her to perform oral intercourse. DB stated that she would attempt to resist when this occurred. On one occasion, she was raped forcefully by the respondent causing her pain. She would cry visibly during these acts.

10. The respondent’s brother and co-accused, was occasionally present for the offending. The charges against him occurred where the respondent, having raped DB, said to his brother "Now you need to have а go”.

11. The offending was an ever-present feature of the period between 2003 and 2007, such that when it came to an end, DB confronted the respondent as to why it was no longer happening, to which he replied, “Because you are fat”.

12. In relation to the offending against SB, she recalled the first incident when the respondent was practising his guitar and asked her to sit on his lap, his hand moved towards her groin. He was approximately 14 years old, and SB was approximately 7 years old. She went into the respondent’s room and recalled lying in the bed, she experienced pain in or around her genital area, and described something "hot and gloopy" around that area. The offending continued from this point up until late 2008. SB stated that similar incidents would occur 1-3 times per month; that he would either rub his penis on her vagina or masturbate until he ejaculated on top of her.

13. SB made a statement of complaint to the Gardaí in 2021. The respondent was arrested on the 3rd of February 2022 and interviewed. He stated that he thought what had occurred between him and DB was “normal behaviour”, and accepted that he performed sexual intercourse on DB but denied that she ever performed oral intercourse on him. He minimised the offending behaviour in terms of frequency, however, he accepted the veracity of the offending and pleaded guilty at the first available opportunity. He expressed remorse for his actions in interview with the Gardaí.

14. Both victims gave evidence of the understandably profound and long lasting impact on them as a result of the abuse suffered.

Personal Circumstances of the Respondent

15. The respondent had no previous convictions at the time of sentencing, and was employed.

He told Gardaí that he had unsupervised access to pornographic materials at a young age, and when he was asked during the interview about his behaviour, he said that he was “remorseful for the actions of my juvenile self. It came to a point that I knew it was wrong, it had to stop…”.

16. It was accepted that he cooperated during interview. The respondent had engaged with the “One in Four” programme and had attended several sessions, but did not complete the programme. He had cooperated with the probation services, and was willing to continue with that engagement.

Sentencing Remarks

17. In relation to the sentence imposed for the offences concerning DB, the judge noted that the activity was at a high level, that it was frequent and prolonged, and caused great damage to DB, as was evidenced. In nominating a headline sentence, the judge remarked that if this were an adult offender, the headline sentence would be at the top end of the 10-15 year bracket identified by the Supreme Court in People (DPP) v FE [2021] 1 IR 217.

18. The judge noted that the derogatory remark the respondent made when DB had asked him why he had stopped the offending behaviour showed, “by that stage that DH knew perfectly well what the situation was.” He went on to say that despite this knowledge, DH also committed offences against the second victim, SB.

19. The sentencing judge also noted that the offending in relation to SB overlapped with that of DB and continued after he had ceased the offending against DB, therefore requiring a consecutive element to be imposed in the sentence.

20. In mitigation, the sentencing judge took into account the early guilty plea, the full acknowledgment in open court of his wrongdoing, as well as the written apology to the injured parties.

21. The sentencing judge acknowledged the respondent’s youth at the time of offending, and that he had to “put in an allowance for the fact of his age at the time". However, the judge nonetheless stated that it seemed to him that the respondent, “despite his youth, must have known that this conduct was not only wrong but very wrong”.

22. The sentencing judge also referred to the decision in People (DPP) v TD [2021] IECA 289 in noting that while the respondent was 17 years of age at the time the offending behaviour ceased, “a still substantial discount must be applied in terms of a reduction in culpability, even at that age".

Grounds of Application

23. The Director contends in written submissions that the reduction applied by the judge to the appropriate headline sentence for an adult due to the respondent’s young age was excessive given the totality of the offending and the aggravating factors of the case.

However, in oral argument, the argument focused on the reduction afforded by the judge in light of his age to the headline sentence nominated for the offending concerning SB.

Submissions of the Director

24. The Director submits that the central issue in this appeal is the approach taken by the sentencing judge in applying a discount due to the respondent’s age with reference to TD.

25. The Director refers to the decision of this Court in People (DPP) v AO’F [2022] IECA 122, where it was held that the individual circumstances of the offender must be considered in determining the discount to be afforded. This case involved a young offender aged between 14-17 years at the time of the offending. The Court noted the following in AO’F at para 43;-

"cases of this nature where the offender, although an adult of the time of sentence committed the crimes when he was a minor, a court must have regard to the level of maturity of the particular offender."

26. The Director also refers to People (DPP) v GD [2024] IECA 25, where this Court held that there is “no hard and fast rule in relation to imposing sentences of this kind”.

27. In applying the principles set out in the jurisprudence discussed, the Director submits that it is clear a sentencing judge must afford an appropriate discount in recognition of the age of the offender. However, it is submitted that it is incorrect to view the decision in the TD case as mandating a discount of one half to two thirds of the appropriate adult sentence, and instead the appropriate discount must be determined on a case-by-case basis, having regard to the age and level of maturity of the accused at the time of the offending, among other relevant factors.

28. It is argued that the instant case involved offending of a serious nature. The respondent had engaged in persistent, repeated and frequent offending over a considerable period of time. The Director notes that the victims were children and had clearly suffered significant trauma at the hands of the respondent which persists to this day. It is clear the respondent had exploited the relationship and age difference between him and the victims, resulting in a serious breach of trust.

29. The Director submits that the sentencing judge was correct in determining that he was obliged to apply a discount to the headline sentences nominated in light of the young age of the respondent at the time of the offending. However, it is contended that the judge erred in calculating and applying a blanket discount of 50% in light of this factor.

30. It is submitted that the caselaw indicates that the appropriate discount should be determined on the facts of the individual case. While the offending commenced when the respondent was approximately 12 years of age, it continued until he was 17 years of age, which would place the age range of the respondent close to that in GD. It is also noted that the sentencing judge correctly remarked that the respondent, “despite his youth, must have known that this conduct was not only wrong but very wrong”. Further to this, the judge held that by the stage the respondent ceased his abuse of DB, he knew “perfectly well” that this behaviour was wrong, but despite this knowledge, continued to commit sexual offences against SB for over a year following this. The Director argues these factors clearly indicate that a lesser deduction would have been appropriate in the circumstances.

31. Finally, it is submitted that while the sentencing judge was correct in principle to discount the headline sentence in relation to the young age of the respondent, he made an error in principle that resulted in a sentence which was a substantial departure from what would have been appropriate in the circumstances of this case.

Submissions of the Respondent

32. The respondent submits that the sentencing judge was correct in principle and in law in imposing the said sentences, having regard to the surrounding circumstances of the case.

33. It is noted that the sentencing judge received the victim impact evidence, and a letter of apology, which provided the judge with a clear picture in relation to the offending, the victims, and the respondent. He also gave significant weight to the guilty plea that the respondent entered at the earliest possible opportunity.

34. The respondent submits that the sentencing judge was live to the severity of the offending, that it was prolonged and that there were two victims. It is argued that when structing the sentences, the judge paid careful attention to the legal principles and jurisprudence and stated:

“although sentencing is a discretionary process, it's a discretionary process that is, at this level, hemmed in by the pronouncements of the superior courts and previous decisions of both the Supreme Court and the Court of Appeal combine in this case to very much limit the discretion that I have as a sentencing judge in the case”.

35. It is noted that when setting the headline sentence in relation to DB, with due consideration to the age and culpability of the respondent at the time of the offending, the judge stated;-

“DH was aged about 15 and a half at the time of cessation of the offending and, as previously noted, it had taken place over about three and a half or four years prior to that. So, he was young and, indeed, very young at the time but it seems to me that, having regard to the fact that it appears that this is another of these cases where life was made to imitate pornography, it seems to me that Mr H, despite his youth, must have known that this conduct was not only wrong but very wrong”.

36. In relation to SB, the sentencing judge noted that the respondent must have been aware that his behaviour was wrong, as even when the offending against DB ceased, he continued to offend against the younger SB, and that this must be seen as an aggravating factor. He went on to say;-

“In my view, there must be a consecutive element to the sentencing. It is right and proper that in a case where there are two victims that which happen sequentially, that there should be sequential penalties and each victim should have the consolation of being able to point to a separate penalty applicable distinctly to the offending that took place against them.”

37. The respondent submits that in contemplating the sentences, the judge took into account the relevant judgments of FE, TD and DPP v AW [2023] IECA 204. He also considered the appropriate discounts to be given in relation to the early guilty plea, the respondent’s good character, and that there was no indication of any further offending.

38. The respondent therefore submits that the 50% discount was entirely appropriate in the circumstances of this case and says that while the sentence may be considered lenient, the Director has failed to establish that it is unduly lenient.

Discussion

39. The principles applicable to undue leniency reviews are well established. The starting point for this consideration is that the onus rests on the prosecution to establish that a sentence was unduly lenient so that the divergence between the sentence imposed and that which ought to have been imposed amounts to a substantial departure from the norm before this Court may justifiably intervene.

40. We wish at this point to refer to the judgment of this Court in TD where there is reference to the Guidelines on the Sentencing of Children and Young People by the Sentencing Council for England and Wales. It is clear from TD and subsequent judgments, that the guidelines therein should only be regarded as a “helpful indicator as to the potential significance of the fact of minority in any assessment of an offender’s culpability”. The specific paragraph from the Guideline on sentencing from England and Wales states that:

“…[t]he court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15-17 and allow a greater reduction for those aged under 15”

It is stated therein that this is only a rough guide, but it is clear by way of an indicator that the reduction from the adult headline sentence may be that of 1/2 to 1/3 of that sentence. It may be less, it may be more, but in our view, as significant as the actual age of the offender is the development and maturity of the young person.

41. The Director contends that there is an error established in the uniform application by the judge of a reduction for youth offending, and as stated, focuses on the reduced headline nominated in the instance of the offences relating to SB.

42. The judge nominated a headline sentence of 14 years on the rape offences of DB as being the appropriate headline sentence if the offences had been committed by an adult on a young child. We agree entirely with the judge’s observations regarding the offending, that it was sexual activity at a high level, prolonged, frequent and caused, in the words of the judge “very great damage”.

43. The judge then proceeded to consider the offending in respect of SB, which commenced when she was 7 years of age and continued until she was 10 years of age. The respondent was aged 14 – 17 years old. When the respondent commenced abusing SB, he continued to abuse DB. The judge considered the appropriate adult headline sentence to be that of 8 years for the sexual assault offences.

44. The offending in respect of both victims was of a serious order. The judge properly observed in our view that “Mr. H, despite his youth, must have known that this conduct was not only wrong but very wrong” and with this we agree. The offending in respect of SB overlapped with the offending in respect of DB for a period of approximately one year.

The Director points out that in interview, the respondent accepted that he knew it was wrong when he was aged 14 or 15 years old. However, it was about this time that he began abusing SB, clearly at a point in time when he was aware that this was utterly wrong.

45. We find ourselves in agreement with the submission of the Director regarding the reduction afforded for age concerning the series of offending of SB. The judge reduced the adult headline nominated from 8 years to 4 years, a reduction of 50%. The fact of the respondent’s appreciation of wrongdoing and the fact that there was an overlap in offending means that a lesser reduction of the appropriate adult headline sentence is required. The reduction due to his age should reflect not only his age of between 14-17 years, but also his maturity at the time in terms of assessing his moral culpability.

46. We appreciate the argument that the judge could have applied a greater reduction in terms of age when the respondent was between the ages of perhaps 12- 14 years, and a lesser reduction as he aged, and that the ultimate sentence imposed would be the same, but we believe that when one looks at the final sentence imposed regarding the offending on SB in isolation, that being 2 ½ years, it is simply too low and is a substantial departure from the norm, thus constituting an error in principle.

47. Consequently, we will quash the sentences imposed and proceed to re-sentence de novo as of today’s date.

Re-Sentence.

48. In relation to the offending of DB, when we consider the seriousness of this offending, we agree with the adult headline sentence of 14 years nominated by the sentencing judge in respect of the rape and s.4 rape offences. We will reduce that to a sentence of 7 years in light of his age and maturity at the relevant time. This offending started when he was aged 12 years and continued until he was aged 15 years. We have assessed the mitigation present and his current position, where we understand he is availing of opportunities open to him while incarcerated. He pleaded guilty, expressed remorse and apology, and has been conducting himself appropriately in the period since the offending.

We will reduce those 7 years to a sentence of 5 years in light of the mitigation. That sentence of 5 years is imposed on all the rape counts and s.4 rape counts, that is counts 1, 4, 8, 12, 14, 17, 21, 25 and 33. All counts are concurrent inter se and the remaining will be taken into consideration. Those sentences are backdated to the date he went into custody; the 10th of March 2025.

49. On the sexual assault counts relating to SB, that is counts 49, 54, 58 and 62, taking into consideration the seriousness of this activity and the aggravating factor of the overlap in offending, we nominate an adult headline of 9 years imprisonment. In assessing his moral culpability in terms of his age at the time of offending; between 14 and 17 years, his level of maturity and to take account of his accepted appreciation that his conduct was wrong, we reduce that sentence to 6 years imprisonment. It is relevant to the assessment of the appropriate reduction from the adult headline nominated that he persisted in his abuse of DB, and, knowing that his conduct was wrong commenced abusing SB.

50. From that we will apply a discount for mitigation, reducing the sentence to 4 ½ years. The sentences are imposed concurrently inter se but consecutive to the sentences imposed regarding DB. That is consecutive to the sentence imposed on count 1. This results in a sentence of 9 ½ years. In terms of totality and to ensure a proportionate sentence, we will reduce that combined sentence to one of 8 ½ years and to do so, we will reduce the sentence on the counts relating to DB to one of 4 ½ years and the counts relating to SB to one of 4 years.

51. In order to incentivise his rehabilitation, we will suspend the final year of the sentence on the same terms as in the court below.