Court of Appeal partially allowed appeal by suspending sentence and adding post-release supervision for sexual assault.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

212/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Jack Kirwan

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 23rd day of February 2017 by Mr. Justice Birmingham

1. Before the Court is an appeal against severity of sentence. Having been found guilty on 15th February, 2016 on counts of sexual

assault and burglary the appellant was sentenced on 5th July, 2016 to a term of 2 years imprisonment. He then appealed against his

conviction and against the severity of his sentence. This Court has earlier delivered a reserved judgment dismissing the appeal against

conviction and this judgment now deals with the sentence aspect. The earlier judgment of the Court on conviction set out the

background facts which relate to criminal activity that occurred at a hotel in Wexford on 11th October, 2008 in some considerable

detail and the Court will not repeat that exercise today. There can be no doubt that this was a serious offence committed against a

vulnerable woman in her own hotel bedroom which was then invaded by the appellant.

2. This was not a case where there was a plea of guilty nor indeed was there any acknowledgment of wrongdoing, even when the

jury returned its verdict and with that and associated with that an expression of real remorse. In the absence of a plea of guilty and

of remorse the accused at trial, now the appellant, was denied the most valuable mitigation that arises when it comes to sentencing

sex offenders. Notwithstanding the absence of a plea counsel at the sentence hearing in the Circuit Court who is not the same

counsel who has appeared before this Court pressed for a non-custodial disposal and for a suspended sentence.

3. That approach at the sentence hearing was not a realistic one. The Court is of the view that that the judge in the Circuit Court

was entirely correct in taking the view that the offence was of such seriousness that it had to be met by a custodial sentence. This

was a serious offence which resulted in very grave consequences, and lasting consequences, for the unfortunate and entirely

innocent victim as the victim impact report that was presented to the Court put beyond doubt.

4. In the course of the sentencing hearing the Circuit Court judge indicated that he saw this as a mid-range sexual offence. Counsel

for the appellant today has not really taken serious issue with that. Given that this offence involved not just fondling of the sleeping

victim’s breasts but also digital penetration, this Court agrees with the assessment and categorisation of the offence. However

Counsel on behalf of the appellant says that the sentence was not sufficiently tailored to the individual circumstances of her client.

She says it is the case that even absent a plea of guilty there were factors in favour of her client which require to be reflected in the

sentence to be imposed. The sentencing judge indeed recognised that, referring specifically to the youth of the offender, 17 years at

the time of the incident, the fact that he had no previous convictions and that he had no subsequent convictions and that he came

from a stable and highly supportive family.

5. In passing sentence the judge indicated that he felt that the appropriate sentence was 3 years imprisonment but that taking into

account the youth of the offender and the other mitigating factors that he had identified earlier in his remarks that he was going to

reduce that sentence to 2 years which was what he then imposed. This Court finds no error in identifying 3 years as appropriate, nor

with the decision to reduce that to 2 years. Two years imprisonment cannot be regarded as excessive. What has concerned the

Court though was whether there was a need to structure the sentence in any particular way. This was, as has already been made

clear, a serious offence and unquestionably so. However while it was a serious offence, it was committed by a juvenile, a school

student who had no previous convictions, significantly it was committed by someone who, in the almost 8 years between committing

that offence and coming to trial and on for sentence had not reoffended. Seven and a half, almost 8 years in the life of a young

person in their late teens, early adulthood is a very significant period of time indeed and the fact that there was no misconduct during

that period and that instead during that period he had embarked on and had completed, subject to the need to repeat one paper, a

third level qualification is strongly suggestive that the Wexford Hotel incident was indeed out of character.

6. The fact that there was such a delay in the matter coming on for trial and then for sentence is to a large extent explained by the

fact that there was an application for a judicial review which was unsuccessful, so it is the case that the delay has to be laid at the

feet of the appellant. To that extent the Court cannot take into account the fact that that lengthy period of time must have been

stressful for him and for those around him and close to him but nonetheless the fact that time has passed does mean that the

sentencing court and now this Court has an opportunity to see to what extent progress has been made since these untoward events

occurred.

7. There was a probation report before the sentencing court and that report was something of a “curate’s egg”. It saw him at high

risk for reoffending initially and then when further assessments were carried out, as at moderate risk. That conclusion might seem

slightly surprising given that he had not reoffended during the significant period between the hotel incident and the sentence hearing

and the production of the probation report. In the course of that probation report the Service had recommended that the question of

his participation in the Safer Lives Programme or a similar programme for sex offenders should be explored and also indicated that

there was a need for work in relation to alcohol awareness.

8. This Court is satisfied that the sentence imposed was not a harsh one. It is, though, the situation that it did not address the

question of post release supervision. Given the youth of this offender at the time the crimes were committed and the progress made

post offending the Court feels that this was a sentence that should have been structured differently and that it would have been

appropriate to suspend a modest portion of that sentence and to balance that suspension by providing for strict post-release

supervision with particular reference to areas identified by the Probation Service as requiring attention. The purpose of part

suspending being to incentivise full co-operation with the Probation Service and to deter any resumption of activities such as

excessive alcohol consumption that could lead to any reoffending or any other misconduct.

9. The Court therefore has decided that what it will do is as follows:—

i. That it will confirm the sentence of 2 years imposed in the Circuit Court. It will however suspend the last 9 months of

that sentence, and there will be an additional provision in relation to that which will be referred to momentarily.

ii. The Court will provide for 15 months post release supervision by the Probation Service, the Probation Service

supervision aspect to include participating in the Better Lives Programme or any other programmes tailored to sex

offenders that the Probation Service identify as being of assistance and also working with the Probation Service on

alcohol awareness. Over and above that, he will obviously be required to comply with their general directions and to be

under their supervision.

10. In deciding to vary the sentence and in restructuring in the way that we are indicating, the Court, in accordance with its

established jurisprudence is sentencing as of today and imposing a sentence that it regards as appropriate as of today. In doing so it

takes into account the up to date material with which we have been furnished, that to include the reports from the prison authorities

indicating that progress has been made in custody; he is now on an enhanced regime. And we have also had regard to a significant

number of impressive testimonials. The Court has regard too to the fact that consequences from the offending will follow Mr. Kirwan

long into the future.

11. The Court indicated that it was proposing to suspend the final 9 months of the sentence. In a situation where the appellant, at

the time he came before the Circuit Court had completed 3 years of his third level studies but had not passed one particular paper

and needed to sit a paper at the re-sit stage, the Court is going to direct that any period of the sentence that is unexpired is also to

be suspended. The Court picks that date on the basis that the “repeats” are in mid August and it is designed to give the appellant an

opportunity to undertake the necessary studies to complete the papers that he sat previously and did not pass.

12. So, in summary then, 2 years but with the final 9 months suspended and also any period that is unserved as of 30th May to be

suspended subject to his entering into a bond.