Court of Appeal dismisses appeal against sentence for rape, upholding eight-year term as appropriate given victim impact.

THE COURT OF APPEAL

Record No. 26/2017

Ryan P.

Birmingham J.

Mahon J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

DAMIEN REILLY

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 14th day of November 2017 by Mr. Justice Mahon

1. The appellant was convicted at the Central Criminal Court on the 25th July 2016 having pleaded guilty to five counts of Rape

contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, and three 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. The appellant was sentenced on the 11th

January 2017 to concurrent prison sentences of eight years in respect of counts 2, 3 and 4. The remaining counts were taken into

consideration. This is the appellant’s appeal against severity of sentence.

2. The offences were committed between May 1994 and January 2000. At that time the appellant was aged between seventeen

years and twenty two years, while the complainant, a neighbour, was eight years younger. The subject matter of counts one and two

included masturbation and oral rape. The incidents covered by counts 3, 4 and 5 involved oral and anal rape. The subject matter of

the remaining two counts involved masturbation, oral sex and simulated anal sex.

Grounds of appeal

3. It is expressly stated in the appellant’s written submissions that it is not contended that the learned sentencing judge approached

the matter deliberately or even consciously to ignore the various mitigating factors placed before it. Rather, the appeal is grounded

on, it is submitted, a failure to take account of personal circumstances and, more particularly, that insufficient weight was afforded to

the various mitigating factors. Specifically in this regard, the decision of Barron J. in DPP v. McCormack [2000] 4 IR 356 and DPP v.

Cooney (unreported, Court of Criminal Appeal, 27 July 2004) are referred to. It is further contended that insufficient consideration was

given to the appellant’s physical and psychological difficulties, and the contents of Senior Clinical Psychologist, Dr. Mark Fitzpatrick’s

report. It is also contended that insufficient account was afforded to the fact that the appellant was just 17 years old when this

offending began, and that there was excessive account taken of the appellant’s position of trust. It is also submitted that insufficient

provision was made for rehabilitation or the public opprobrium that would arise as a consequence of his conviction and being placed on

the sex offenders list.

4. The circumstances in which the complainant decided to make his allegations against the appellant known were unusual. The

complainant returned to the appellant’s home town after a considerable period of time, in 2014. He was in a public house when the

appellant walked by him and as he did so he caressed his back. This caused the appellant shock, fear and upset and acted as a spur

for him to inform his family and to report matters to the Gardaí. When interviewed by Gardaí in 2015, the appellant, while he denied

the more serious allegations, including rape, admitted that he had touched him up the odd time. He admitted that he had a crush on

the complainant, also that some sexual activity had taken place between them. In a second interview he again denied raping the

appellant but admitted to attempting to penetrate the complainant anally. He also claimed that oral sex had taken place consensually.

The appellant had no previous convictions.

5. The appellant sustained a significant brain injury when he was seven years old, in effect, a stroke. He had to learn how to walk

again, and this injury continues to affect him. He had difficulties in school and was often absent from school because of his injury. He

has a poor work history.

6. The complainant read out a very compelling Victim Impact Report in the court below. He spoke of his fear, pain and trauma and his

belief that the appellant had specifically targeted him because he was of a vulnerable nature. He described feelings of worthlessness

and self loathing, ongoing anxiety, fear of the dark, insomnia and nightmares. He described ongoing feelings of guilt and depression.

7. The sentencing of the appellant was adjourned for some weeks. In the intervening period Dr Fitzpatrick prepared a very detailed

and helpful report in relation to the appellant.

8. In the course of his sentencing judgment, the learned sentencing judge stated:

“The youth of the complainant; the disparity in age; the fact that there was a position of trust, the families were close…

there was a relationship of friendship with at least one of the older siblings; and also of course, as regrettably one sees

time and time again in these courts, vulnerable people because of their personalities or their backgrounds or their

personal circumstances are alighted upon, as it were, by persons engaged in this type of criminality, and it is explicitly

stated by the complainant that he lived in a dysfunctional home, and of course when that piece of evidence was brought

to my attention it didn’t surprise me in the least. But that renders the offence into a more serious category in terms of

the moral culpability involved. The matter must be considered in its totality. Whilst the accused was only 17 when the

offending began he was well into early manhood, so to speak, at 22, 23 years of age when the last offence occurred,

and it seems to me that the fact that he was only 17 is something to be largely discounted because of the disparity in

age when one is addressing the totality of the matter as between when it started and when it ended.”

9. He concluded his sentencing judgment in the following terms:

“… it seems to me that the appropriate penalty in respect of the first of these offences, that is to say, is twelve years.

One then has to look at the issue as to whether or not a different penalty should be imposed in respect of each

subsequent event. One might well be called upon to do that on occasion; in this instance, however, I feel that one takes

the moral culpability in its entirety, and therefore what I propose to do is impose sentence by reference to each event

in respect of the rape offences. Alright. Before one takes into account the mitigating factors which I have sought to

elaborate, I take the view that the headline sentence should accordingly be 12 years. The mitigating factors, in the

ordinary course of events, the approach would be that one takes into account a plea to the extent of reducing the

sentence by a third to a quarter and in the light of the totality of the factors in this instance I believe that the

appropriate sentence is one of eight years imprisonment. And I will impose that on each of the rape offences. I will mark

the others taken into consideration. The sentences will be concurrent…”

10. A post release supervision period of three years was also ordered. An application to suspend any portion of the eight year

sentence by counsel for the appellant was rejected.

11. It is the latter portion of the foregoing quotation from the learned sentencing judge’s remarks that is the focus of the appeal and

the oral submissions made by the appellant’s Senior Counsel, Mr. Harnett. These, Mr. Harnett submits, indicate, indeed confirm, that

the learned sentencing judge, having arrived at a headline sentence of twelve years proceeded to discount that term by four years,

or one third, in recognition only of the guilty plea and thereby ignored the other mitigating factors to which he had earlier referred in

the course of the sentencing judgment.

12. However, in the Court’s view, Mr. Hartnett is reading too much, or perhaps more appropriately stated, too little into the learned

sentencing judge’s remarks. Firstly, he did not suggest he would discount the headline sentence by as much as one third; rather he

said that the plea of guilty deserved a reduction of between one quarter and one third. Secondly, he referred to the ‘totality of the

factors’, a clear reference to the various mitigating factors to which he had earlier referred, as justifying a net sentence of eight

years imprisonment.

13. It is evident that the discount of four years was intended to reflect all the mitigating factors albeit the major one in the learned

sentencing judge’s mind was the plea of guilty. The early plea of guilty was indeed the major mitigating factors, as it almost always is

in sexual assault case where it occurs. The learned sentencing judge had earlier in his sentencing referred to the pleas as being “the

principal mitigating factor”.

14. The Court therefore rejects the submission that mitigating factors other than the guilty plea did not feature in the calculation of

the discount to the chosen headline sentence.

15. Ultimately this Court has to decide if there was an error of principal in the decision to set the headline sentence at twelve years

and the net custodial term at eight years and if that net sentence is, in all the circumstances of the case, excessive.

16. All sexual crime is serious. A significantly serious aspect of this case is the fact that much of the sexual offending was of a

particularly grave nature, and it continued over a prolonged number of years, well into the appellant’s adulthood. It was perpetrated

on a young child while the appellant was in a position of trust and it has had a devastating effect on the victim’s life. The appropriate

sentence, of necessity, had to be a lengthy custodial term. Anything less would be a grave injustice to the victim and very much

contrary to the public interest.

17. The headline sentence of twelve years and the net custodial term of eight years properly represents the outer limit of what was

appropriate. But, both were within the discretion available to the learned sentencing judge, and, as such, will not be interfered with

by this Court.

18. The appeal will therefore be dismissed.