Court of Appeal allows appeal on good character grounds, quashing sentence for re-sentencing with suspension.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

Record No: 2016/242

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

THOMAS WALSH

Appellant

JUDGMENT of the Court delivered on the 25th of May 2017 by Mr. Justice Edwards.

Introduction

1. The appellant was arraigned and formally pleaded guilty to one count 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 in that he on the 13th of January 2014 at (a specified

location) in Co Galway did sexually assault one L, a female. The appellant formally pleaded guilty to the said offence on the 18th of

November 2015, the day after the trial had commenced.

2. On the 12th of July 2016 he was sentenced to six years imprisonment with no portion thereof suspended. He now appeals against

the said sentence on the grounds that it was unduly severe in all the circumstances of the case.

The Circumstances of the Case

3. On Sunday the 12th of January 2014 the complainant and the appellant were out drinking in a town in Co. Galway in the presence

of mutual friends. A large amount of alcohol was consumed before the group returned to a flat in that town. The complainant recalls

sitting on the sofa, taking off her boots and falling asleep. At this stage there were three others present in the flat including the

appellant.

4. Some time later the complainant awoke to find herself slumped back on the sofa with her legs sprawled. The defendant was

between her legs with his head level to hers. She was not aware of any assault having taken place but pushed him off her before

realising that she was naked from the waist down. Her body suit which fastened from the crotch had been undone, her skirt was up

around her waist and her tights, socks and underwear had all been removed. Another male person who had been in the room at the

time witnessed the appellant remove her clothes as she slept and sexually assault the complainant. This witness told Gardaí that he

had seen Mr Walsh remove the complainant’s clothes as she slept, that he had also seen Mr Walsh with his head between the

complainant’s legs, that he had seen Mr Walsh touching the complainant’s legs and vagina with his hands, and that he had seen Mr

Walsh putting the complainant’s legs over his shoulders and simulating sexual intercourse.

5. The complainant on waking up was very upset. She found her clothing, went to the bathroom and got dressed. Shortly afterwards

a number of others arrived at the flat and ejected the appellant at around 3:38 a.m. The complainant got the bus back to Galway

city, where she lived, the following morning. While in a phone shop in Galway she collapsed and an ambulance was called. She

disclosed to an A&E nurse that she had been sexually assaulted the night before and had collapsed due to the stress. She consented

to Gardaí being notified and the Gardaí in due course commenced a criminal investigation into what had occurred.

The Victim Impact

6. The complainant read to the sentencing court a detailed victim impact statement. She told the court how she is now very

distrusting of men, particularly those who are new to her. Though she was previously friendly and open minded, she is now not. She

often freezes momentarily if she sees someone who resembles the appellant. Her family home was burgled three weeks after the

incident and at the time she believed it was the appellant, although this was entirely unfounded. She has difficulty with personal

intimacy and feels a loss of control when in intimate situations. She has had to take leave from work when the pressure is too great

for her. She described the locality in which the incident occurred where she has many friends, as “dead” to her. She only discovered

the details of the offence two years and three months after the assault and this also had a serious psychological impact on her. She

told the court it was “extremely upsetting to feel so vulnerable and powerless over my thoughts and emotions and it’s so hard to

convey them that no matter how strong I force myself to be, to try to overcome this and not feel like a victim, I still feel so week.”

The Appellant’s Personal Circumstances

7. At the time of sentence the appellant was a man aged 53. He had four children from two different relationships aged 28, 21, 14

and nine respectively. He is a self-employed tradesman specialising in the reconstruction and remodelling of houses. He has five

previous convictions, all of which were dealt with in the District Court. The earliest conviction dated back to 2008 and the convictions

related to failure to stop for a garda and remain at the scene, careless driving, drunk driving, failing to appear on remand and

possession of a knive, respectively. It was submitted to the sentencing court that his explanation for possessing a knife was to cut

plastic wrappers from a box used to hold a swing that he had bought. The appellant voluntarily attended for questioning by the Gardaí

but nothing of evidential value emerged in circumstances where he had no recollection of the incident. At the sentencing hearing he

apologised to the complainant and spoke of the shame he felt. He also said “over the last two and a half years it has weighed heavily

on me.”

The Sentence Imposed

8. In sentencing the appellant, the trial judge passed the following remarks:

“Yes. Well, this was an opportunist sexual assault by the accused on a vulnerable, defenceless, young woman in the

course of a day and evening that could be described as an alcoholic binge, where many people present stood by, allowed

it to happen. Their conduct on its own may not have amounted to criminal wrongdoing but it was shameful, cowardly

and disgraceful on their part to stand by and let it happen, and that's -- I'm referring only to the bystanders. As for the

accused, the very fact that he seems to have consumed so much alcohol that he had so little control over his conduct

speaks for itself. It was an act of serious depravity and a gross and disgusting invasion of his victim's person. The

impact on her, as I've heard in the witness box today, is entirely realistic, not in any way exaggerated and without a

vestige of self-pity and I accept it unconditionally. The plea of guilty in this case came at a time when the accused had

already been put through the ordeal of a trial, albeit a trial that was curtailed by the eventual plea of guilty on the

second day of the trial. This entitles the accused to credit, but credit that is limited by the circumstances in which the

plea was entered. I'm taking into account the strength of the prosecution case. I accept that it is -- that it was

significant but I -- I'm not prepared to give it as much weight as I am asked to do by the defence.

The probation welfare report is, I would describe it as mixed, mixed in the assessment of the accused. There are some

matters referred to that cause concern. He was at some stages slow to engage with the probation service and was at

times viewed as reticent and evasive when the assessment was being compiled. He is assessed as being at the low end

of moderate in terms of risk for further offending having regard to his attitude towards women, which in the view of the

probation service needs professional third party intervention to help the accused manage his future behaviour and

ensure that it is not harmful towards women. He says he's sorry and the probation and welfare service offer the view

that he has accepted limited responsibility for his wrongdoing. He says that he's stopped drinking, that may or may not

be so, only he knows that for sure. He's been urged to seek out and avail of counselling, but the fact that as of today he

hasn't done so, or at least I'm not advised that he has done so, remains a serious concern, eight months down the road

from his trial. It tells me that he's not serious about looking for help either because he doesn't feel that he needs it or

that if he does feel that he -- believe or feel that he needs it, he's unwilling to do so.

Now, first the headline sentence. Now bearing in mind the range of sentence available. The relatively insignificant

antecedence in terms of his prior criminal wrongdoing, the aggravating factor of the vulnerability of the victim and the

impact on her. The headline sentence is seven years' imprisonment, and I'm placing this offence at the lower end of high

insofar as the scale of gravity is concerned. The plea of guilty and his expression of remorse entitle the accused to

credit. For reasons that I have outlined earlier, I assess this at 15%. There is no apparent future role for the probation

and welfare service in the management of the accused. He is not seen as a serious risk of reoffending and there is very

little role, as a consequence, for any suspension of any portion of the sentence. That's in the absence of any need for a

deterrent function because he doesn't seem to be at a serious risk of reoffending in the future, or rehabilitation because

I have no evidence that he has taken any steps to do so, apart from his statement that he has quit drinking alcohol. The

appropriate sentence is six years' imprisonment. I've done my sums, that's as close as I can get to 15%.”

Grounds of Appeal

9. The appellant has raised two substantive points on the appeal. They can be summarised as follows:

i. The sentencing judge erred in identifying the appropriate headline sentence, in that he placed the offence at the lower

end of the high range on the scale of available penalties and then identified seven years imprisonment as being the

headline sentence;

ii. The sentencing judge erred in failing to give the appellant sufficient discount for the mitigating factors in the case. The

complaints under this heading were twofold. First, it was suggested that inadequate credit had been given for the plea of

guilty, and secondly that there had been a failure to take sufficient account of the appellant’s personal circumstances,

and in particular that he had been substantially of good character at the time of the commission of the offence the

subject matter of the appeal.

Submissions

10. Both sides furnished detailed written submissions which we have read and considered, and which we acknowledge as being of

assistance. These were then amplified and developed in oral argument before the Court earlier today.

The First Ground of Appeal – the Assessment of Gravity.

11. In relation to the first ground, the appellant highlights that the sexual assault in this case was a once off, was brief in duration

and was not premeditated. There was no evidence of premeditation or violence other than the violence inherent in the assault itself

and the appellant was fully clothed at all times. The appellant therefore submits that the offence ought to have been placed in the

medium range on the spectrum of available penalties which ranged from non-custodial disposal to imprisonment for a maximum of ten

years; and that the trial judge erred in placing it at the low end of the high range on that spectrum and in determining upon a

headline sentence of seven years.

12. We have considered and had regard to the various comparators to which our attention has been drawn in the written submissions.

The particular circumstances of the present case were somewhat out of the ordinary and we have found that all of the comparators

advanced are readily distinguishable on one basis or another, and that therefore the comparators put forward on this occasion have

been of only limited assistance.

13. The assessment of the gravity of an offence involves a consideration of the offender’s culpability and the harm done. In assessing

culpability the court looks at the generic nature of the offence in terms of: its fundamental ingredients; the range of penalties

available to address the various circumstances in which the offence may be committed, the particular circumstances in which the

actual offence was committed; whether the offence was committed negligently, recklessly or intentionally; and any case specific

circumstances tending to aggravate or mitigate the moral culpability of the offender. In assessing the harm done the court must

consider the position of the victim, as well as the requirements of society in terms of the need to deprecate and deter future

instances of the offending conduct.

14. We readily acknowledge that that the sexual assault in this case was a once off, and was not premeditated. While it was

submitted that it was brief in duration it commenced while the victim was asleep in an intoxicated state such that she was extremely

vulnerable. It lasted sufficiently long for her to be undressed by the appellant as she slept so that she was naked from the waist

down, for the appellant to place his head between her legs, for the appellant to place the victim’s legs over his shoulders and to

simulate sexual intercourse with her, and for the appellant to touch the victim’s vagina. This was all done in the view and presence of

a male third party, who to his shame and discredit failed to intervene, and on that account represented an especial humiliation and

degradation of the victim. Moreover it is clear from the terms of the victim’s impact statement that she was profoundly traumatised

by what was done to her and it continues to significantly blight her life in numerous ways.

15. We are satisfied that the sentencing judge acted within the range of his discretion in determining that the case fell at the lower

end of the high range, given the multiple aggravating circumstances of exploitation of the victim’s vulnerability, the especial

humiliation and degradation of the victim by performing the sexual assault in the view and presence of a male third party, and the

significant adverse effect that the assault has had on the victim. While a seven year headline sentence may have been at the severe

end of the judge’s legitimate range of discretion, it was within the legitimate range of his discretion and does not represent an error of

principle.

16. We therefore dismiss the first ground of appeal.

The second ground of appeal – insufficient discount for mitigation

17. The second ground of appeal relates in substance to the alleged failure to gave an adequate discount for mitigation. As stated

there were two facets to the case made in that regard.

18. Dealing first with the complaint that insufficient credit was allowed for the plea of guilty, we do not agree. While the appellant did

plead guilty it was very late in the day in that the trial had opened and was in its second day before he asked to be re-arraigned. We

do not accept the suggestion that this was in some way understandable in circumstances where the appellant claims to have no

memory of the incident. Indeed, it flies in the face of his evidence at sentencing that for the previous two and half years his

behaviour on the night in question had weighed heavily on him. It is true that the victim was spared the ordeal of testifying, that his

eventual plea provided certainty of outcome, that it represented a facing up, albeit a belated one, to what he had done and the

taking of responsibility for that which he had done, and some degree of saving of expenditure in terms of the costs that would have

been associated with the trial proceeding to a conclusion. He was entitled to credit for all of that. Nevertheless, we are satisfied that

in reflecting the mitigation associated with the late plea in a discount of approximately 15% from the headline sentence the

sentencing judge acted within the range of his legitimate discretion, and was not in error.

19. The appellant however makes the further point that he does not appear to have received any credit for having been of

substantial good character prior to the commission of this offence. While he has five recorded previous convictions these arise out of

two separate incidents. The first gave rise to three road traffic convictions, one of which was serious enough in that involved a drink

driving conviction. The second involved the finding of a carving knife in his vehicle in relatively benign circumstances such that the

penalty imposed involved only a modest fine. The appellant accepts that he was not wholly of good character but maintains that his

record was not significantly blemished and that he ought to have been treated as being of substantial good character. It was

submitted that a previous conviction or convictions will not necessarily result in total loss of the mitigation associated with previous

good character. Sentencing law provides for progressive loss of mitigation. It was submitted that while some of the mitigation to

which he would have been entitled on account of previous good character might have been lost by him on account of his previous

convictions they were neither so numerous nor so serious as to have justified the total loss of that discount.

20. We are impressed by this argument and consider that the trial judge was in error in failing to give any additional discount on

account of the appellant having been substantially, albeit not entirely, of previous good character.

21. In the circumstances we will allow the appeal on that basis only and will quash the sentence imposed at first instance and

proceed to a re-sentencing of the appellant. In accordance with established jurisprudence, the parties in this case were invited to

put before the court on a contingent basis any additional materials that they might wish to have taken into account in the event of

the court having to proceed to a re-sentencing.

22. In that regard the appellant has submitted a booklet of documents containing three character references which we have

considered and are prepared to take into account.

23. In proceeding then to re-sentence the appellant we will not interfere with the headline sentence of seven years identified by the

sentencing judge in the court below. We will also not interfere with the discount of twelve months (being approximately 15%) from

the headline sentence to reflect the credit to which the appellant is entitled for having pleaded guilty, albeit late in the day. However,

to further reflect the fact that he was substantially, albeit not entirely, of previous good character we will suspend a further year of

the headline sentence, i.e., a year off the net sentence of six years remaining after application of the discount for the plea of guilty.

The suspension of the said twelve months is also intended to incentivise the appellant’s continued rehabilitation in circumstances

where he contends, and it has not been shown otherwise, that he has forsaken alcohol and has not consumed alcohol since the

incident that gave rise to these proceedings. The conditions attaching to the suspended portion of the sentence are that the

appellant should enter into his own bond in the sum of €100 to keep the peace and be of good behaviour, that he should engage with

the Probation Service upon his release from prison; and that he abides by all recommendations of the Probation Service for the

duration of the part suspension of his sentence. The duration of the part suspended portion of his sentence will be for a period of

three years from the date of his release from prison.