Court of Appeal dismisses appeal against four-year suspended sentence for sexual assault involving digital penetration. The court finds the sentence proportionate despite mitigating factors. The court rejects the appellant's claim that the sentence was too severe given the nature of the assault and the victim's impact. The court emphasizes that the appellant's extensive criminal record precluded any mitigation for good character. The court upholds the headline sentence of four years as within the sentencing judge's discretion. The court notes that the suspended portion of the sentence was applied correctly. The court concludes that no error of principle was demonstrated on any ground of appeal.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

Record No: 2016/99

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

V

O. R.

Respondent

JUDGMENT of the Court delivered 2nd March 2017 by Mr. Justice Edwards.

Introduction

1. The appellant was convicted on the 25th of February by a majority jury decision (11/1) in respect of an offence of sexual assault

of contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act, 2001.

2. He was sentenced to four years imprisonment to date from the 25/02/2016, with the last eighteen months of the said sentence

suspended upon conditions.

3. The appellant now appeals against the severity of his sentence.

The Relevant Facts

4. On the evening of the 30th of April 2015 the appellant O.R., a male, and the injured party L.D., a female, had been drinking in a

local pub and playing pool. They later returned to the injured party’s house and continued drinking a large quantity of alcohol with a

third party into the early hours of the 1st of May. At some stage during the night, the third party went upstairs to bed. The appellant

made sexual advances on the injured party, putting his foot on her chair, pulling it over and attempting to kiss her. The injured party

declined these advances, telling him that she had a boyfriend. She left bedding downstairs on the couch for the appellant to sleep on

before going upstairs to bed herself.

5. Some period of time later, the injured party woke to feel fingers in her vagina. Initially thinking it was her boyfriend, she

momentarily encouraged this behaviour, before realising it was the appellant. She asked the appellant to leave and called her parents.

The appellant had gone downstairs but didn’t leave the house until the injured party’s parents arrived. The injured party attended at a

Garda Station in the morning where she was attended to by Garda Fiona O’Keefe who arranged a medical examination with a Sexual

Assault Treatment Unit. A clinical nurse conducted a full examination and noted an abrasion on the right labia minora at the 9 o’clock

position consistent with the history given. On the 20th of June the appellant was arrested and interviewed. He was co-operative to a

degree. However, his account was exculpatory to the extent that he maintained that the injured party had been agreeable to his

advances, and had in effect had consented to them.

The Impact on the Victim

6. In a victim impact statement read to the Court by Garda O’Keefe, the injured party told the Court of the consequences the assault

had had on her. She told the Court that she no longer felt at ease in her own home. She moved to her parents’ house for a number of

days after the incident, but moved back to keep her six year old daughter in a consistent routine. For four months afterwards, she

slept on a mattress in her daughter’s room with a knife under her pillow. She applied to the local authorities to move house and rarely

left the house alone. She was prescribed anti anxiety medication and antidepressants by her GP and began drinking heavily. Mr R has

family in her estate and she fears meeting him. She avoids leaving the house unnecessarily and cannot visit her housebound mother

any longer. The impact of the assault was further compounded by the fact that many in her circle of friends disbelieved her, and this

is all the more difficult because she lives in a small town. The prospect of a trial was also deeply upsetting to her. She attends

counselling and continues to suffer flashbacks and nightmares and suffers mental health difficulties.

The Appellant’s Personal Circumstances

7. The appellant had, at the time of sentencing, 28 previous convictions. Of these, 11 related to public order, five to offences under

section 3 of the Misuse of Drugs Act 1977, one to section 15 of the Misuse of Drugs Act 1977, seven to road traffic offences, one to

litter and two to criminal damage. These various convictions dated back as far as 2002 and until as recently as March 2015 when he

was convicted of the drugs offences. The appellant’s family circumstances are relatively normal. At the time of sentencing, his

parents and sister were all employed and living in north of the same county as the appellant lives in. Though at the time of trial he

was unemployed, he has some work history, having worked as a plasterer from time to time after leaving school at age 14 to pursue

an apprenticeship. Testimonials from previous employers indicated that they would be happy to employ him again.

The Sentence Imposed

8. In sentencing the appellant, the sentencing judge was keen to emphasise that alcohol consumption did not excuse the incident. He

accepted the serious and traumatic impact on the victim. However, he noted that while the injured party had stated that she had

been called a liar by certain persons as she walked down the street, the appellant could not be blamed for the actions of others. The

sentencing judge rejected any contention that the injured party had indicated any form of consent, accepting that she was not in a

position to do so as she was asleep and believed the appellant was her partner. As soon as she realised who it was, she told him to

stop and get out. The sentencing judge described the assault in the following terms:

“He embarked on a stealthy sexual assault on a sleeping woman. It is a sneaky, it is a despicable crime and he knew full

well when he went into her room and she was asleep that there was not the slightest shred of consent or

encouragement or anything of that nature.”

9. The sentencing judge laid emphasis on the appellant’s previous convictions, stating that “when you encounter the criminal law you

encounter it in all its awfulness”. He went on to say he was unimpressed at the appellant’s having given himself in for interview given

his tone during that interview and the fact in the course of it he had made a “gratuitous” and “demeaning” reference in relation to

the injured party. This was taken as exhibiting a poor attitude on the part of the appellant, and that he “just simply didn’t care.” The

sentencing judge observed there had been a total lack of remorse.

10. In light of these circumstances, the sentencing judge declined to place the offence at the lower end of the scale as counsel for

the appellant had encouraged him to do. Instead, he placed it in the middle of the scale, and sentenced the appellant to 48 months

of imprisonment, with the final 18 months suspended for three years. On top of a condition that the appellant keep the peace and be

of good behaviour for the three year period of his suspended sentence, the sentencing judge ordered that there be no contact

whatsoever with the injured party, including sight.

Grounds of Appeal

11. The appellant appeals on the following grounds:

i. The sentencing judge erred in failing to take full account of evidence in mitigation.

ii. The sentencing judge erred in handing down a sentence which was disproportionate in all of the circumstances.

iii. The sentencing judge erred in placing an excessive emphasis on the previous convictions of the appellant in particular

in circumstances in which the said convictions were for offences which were not of the same nature or type.

iv. The sentence did not take account of the retributive effect of the loss suffered by the appellant by reason of his

conviction with particular reference to his loss of standing within his family and the community.

v. The Court did not have due regard to the good behaviour of the appellant in the period since the commission of the

offence.

vi. The Court did not in structuring the sanction have adequate regard to the rehabilitation of the appellant.

The Appellant’s Arguments

12. In relation to the first ground listed above, the appellant submits that the sentencing judge failed to consider a number of

relevant mitigating factors. These were: that the assault involved no degree of violence or force and once asked to desist he left the

room; the references from previous employers; the retributive effect of a conviction for sexual offences and the notification

requirements under the Sex Offenders Act 2001; the fact that the appellant is capable of working productively and has a trade; and

the fact that he attended the Garda Station without compulsion.

13. In relation to the second ground, in arguing that the sentencing judge erred in setting the headline sentence at too high a place

along the scale, the appellant relies on the judgment of Finnegan J in The People (Director of Public Prosecutions) v Sean Canniffe

[2012] IECCA 2. In that case, the respondent had pleaded guilty to a sexual assault in similar circumstances and was sentenced to

two years, the entirety of which was suspended. €20,000 was also proffered and accepted as a token of remorse and the respondent

was of previous good character. On appeal against leniency, the Court of Criminal Appeal increased the sentence to one of four

years, but suspended the sentence in its entirety. The appellant submits that Canniffe was arguably more serious than the present

case as the victim’s partner had been present and there were not one but two assaults.

14. In support of the third ground of appeal, the appellant relies on a number of passages by Mr Thomas O’Malley in his well regarded

textbook on “Sentencing Law and Practice” (2nd Ed), to the effect that a Judge should place greater weight on previous convictions

for similar offences, but should be less inclined to treat convictions for unrelated minor offences as particularly aggravating. The

appellant asserts that the sentencing judge erred in placing excessive emphasis on the appellant’s previous convictions, none of

which pertained to sexual offences.

15. In relation to the remaining three grounds of appeal, the appellant submits that though rehabilitation is a well settled element in

Irish sentencing law, the sentencing judge made no reference to the principle. He further submits that there was no evidence of any

misbehaviour in the period subsequent to the offence pending trial. Additionally, the sentencing judge failed to consider the retributive

effects of notification requirements under the Sex Offenders Act 2001 and the loss of standing he will suffer within the community.

The Respondent’s Arguments

16. In response to the appellant’s submission that the sentencing judge failed to take relevant mitigating and aggravating factors into

account and also in response to the contention that the judge failed to consider the retributive effect of his sentence, the

respondent contends that a sentencing judge is not obliged to go through each and every mitigating and aggravating factor, as

recognised by this Court in The People (Director of Public Prosecutions) v Walsh [2014] IECA 10. Given that the appellant’s counsel

identified the relevant mitigating factors and a suspension of eighteen months was granted, the mitigating factors were in fact

identified, considered and taken into account.

17. Responding to the appellant’s reliance on The People (Director of Public Prosecutions) v Canniffe to demonstrate that the

sentence imposed was disproportionate, the respondent submits that such reliance is misplaced. Significantly, in that case the

defendant pleaded guilty; €20,000 was proffered and accepted as a token of remorse; and the defendant was of previous good

character. None of these powerful mitigating circumstances were present here, it is submitted, and therefore Caniffe is legitimately

distinguisable. In fact, the respondent contends that Canniffe supports the headline figure of four years on account of the similar

type of assault.

18. Regarding the appellant’s previous offences, the respondent notes that half of his previous convictions came from within the five

year period preceding the offence, and there was no significant period free of criminality as the appellant asserts. Secondly, while all

his previous convictions were dealt with in the District Court, it cannot be contended either that the previous offences were minor.

Notwithstanding a lack of similar type convictions, there is no rule of law that mandates a sentencing judge to completely disregard

previous convictions. In relation to the lack of offending or misbehaviour in the period between the time of the offence and the

sentencing date, the respondent notes that this is a relatively short period of less than a year, and the appellant should not be given

credit for any lack of offending behaviour in that time.

19. In response to the appellant’s assertion that the sentencing judge erred in failing to provide for the appellant’s rehabilitation, the

respondent points to the fact that by suspending a portion of the sentence, the judge in fact did make provision for the appellant’s

rehabilitation. Though no express reference was made to rehabilitation, the sentencing judge nonetheless gave concrete effect to the

principle that a portion of the sentence may be suspended to encourage or incentivise a defendant’s rehabilitation.

Analysis and Decision

20. At the oral hearing in this matter counsel for the appellant indicated at the outset that his client was content to confine his

appeal to grounds (i) to (iii).

21. In relation to the first of those grounds, namely that the sentencing judge erred in failing to take full account of evidence in

mitigation, we do not consider that the transcript bears this out. The sentencing judge having determined upon a four year headline

sentence, then proceeded to suspend eighteen months of it. This was generous having regard to the limited mitigation that was in

fact available. There had been no plea of guilty in the case which would, if it had been proffered, have provided substantial

mitigation. Equally, the appellant had a significant previous criminal record. While none of the previous convictions were for the same

or similar type of offending, and therefore the record was not an aggravating circumstance, its existence still meant that the

appellant was not entitled to the substantial mitigation that is normally afforded to a person of previous good character. Moreover

while there had been some co-operation it had been limited, and as the judge commented the tone of some of the remarks made at

interview, which tended to disparage the complainant, were not indicative of remorse.

22. As counsel for the appellant conceded when pressed on the matter by a member of this Court, the sentencing judge did in fact

allude to such matters as were available as mitigation including the appellant’s age, his trade and his work record, his family

circumstances, his skill as a boxer and the adversity of a hand injury that had caused him to have to give that up, and such co-

operation as he afforded.

23. We reiterate that the eighteen month effective discount, which represented a 37.5% discount, was generous in the

circumstances of the case and we find no error of principle in regard to the discount for mitigation.

24. The second ground suggested that the overall sentence was disproportionate. In circumstances where we are satisfied that

mitigation was correctly reflected, the only basis on which that might still be so would be if the headline sentence of four years was

too high. We consider that while it was possibly at the severe end of the range of the sentencing judge’s legitimate margin of

discretion it did not exceed it. This was after all a sexual assault that involved more than mere indecent touching. It involved digital

penetration of the injured party while she slept. The Court was referred to only one comparator, namely The People (Director of Public

Prosecutions) v Sean Canniffe, a case from 2012. In that case, which also involved digital penetration of a victim while she slept, the

Court of Criminal Appeal determined on a headline sentence of four years. While that headline sentence was ultimately wholly

suspended after application of mitigating factors, and the cases are significantly distinguishable in terms of mitigation, the Canniffe

decision actually provides support for the headline sentence determined upon by the sentencing judge in this case. In addition, since

its establishment in 2014 this Court is regularly called upon to review sentences involving sexual assaults, and we are satisfied that a

headline sentence of four years imprisonment for the digital penetration of a woman while she slept is not out of kilter with the type

of sentences imposed in other broadly similar sexual assault cases. We are therefore satisfied that the sentence was a proportionate

one.

25. Finally in relation to the third complaint, namely that sentencing judge erred in placing an excessive emphasis on the previous

convictions of the appellant we have, in effect, already dealt with that. There was no question of the appellant’s previous record

being held against him as an aggravating circumstance in this case. The transcript does not establish that it was so held against him.

However, a previous record, even if not aggravating, and depending on how bad it is will result in the progressive loss of the

substantial mitigation that would otherwise be available to an accused who was of previous good character. That was the point the

trial judge was making in saying that the appellant was no stranger to the criminal law. This appellant had twenty eight previous

convictions and therefore had well and truly lost any possible mitigation for being of good character. It was a point well made, and

one the sentencing judge was fully entitled to make. We would therefore dismiss this ground of appeal also.

Conclusion.

26. In circumstances where no error of principle has been demonstrated the Court will dismiss the appeal.