[273 No. 2017]
The President
Peart J.
McGovern J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT (Ex tempore) of the Court delivered on 30th October 2018 by Birmingham P.
1. This is an appeal against severity of sentence.
2. The sentence under appeal is one of four years imprisonment with the final 12 months suspended that was imposed on 24th November 2017 in the Dublin Circuit Criminal Court in respect of the offence of defilement of a child under 15 years of age contrary to s. 2 of the Criminal Law (Sexual Offences) Act 2006. The maximum sentence for the offence is life imprisonment and that maximum sentence is to be contrasted with the maximum of 5 years imprisonment for an offence contrary to s. 3 of the Act, that is the offence committed when the child is aged between 15 years and 17 years.
3. The background to the case is to be found in events that occurred on 17th July 2015. On that occasion, the injured party, who was born on 13th November 2000 and so was 14 and a half years at the time, was attending a teenage disco in south Dublin with a few of her friends. Prior to the disco, she consumed a quantity of vodka and coca cola, but once inside the disco, the drink hit her very badly and she ended up sitting on the floor.
4. The original intention had been that the complainant would overnight with a friend, but feeling unwell, she had a change of mind. She did not want to see her mother or be seen by her mother in the state that she was in and so she decided to text the appellant. The injured party and the appellant had never met previously, but they had been friends on Facebook as they had friends in common. It appears the injured party decided to contact the appellant by text because he was the only person she knew that had a car. The appellant's date of birth was in July 1996 so he had turned 19 some days earlier.
5. The appellant collected the injured party at a garage located near the disco and they drove around for a while before stopping. He took the injured party's head and put it down into his lap. His trousers and boxer shorts were down and he got her to suck his penis. The injured party felt herself getting sick and pulled away from the appellant's lap. Having felt nauseous, she vomited. The appellant took her right hand, placed it on his penis, and with his hand moved her hand up and down. They subsequently drove off, they went to a McDonald's drive-through where they got some food and the injured party was then dropped off near her home. When the injured party got home, she was visibly distressed. She was unable to sleep and she was found crying by her sister she and told her sister what had happened. The following day, she went to her local Garda station and made a complaint.
6. The appellant was arrested some three days later, and when detained, made admissions. He was cooperative with investigating Gardaí, bringing them to various locations relevant to the incident. In the intervening period, between the date of the disco and the date of his arrest, he had sent a text to the complainant apologising for his behaviour.
7. In terms of the appellant's background and personal circumstances, as indicated, he had just turned 19 years of age at the time of the offence. He had left school aged 14 years and he describes how he had been held back for two years while at school. Having left school, he had worked sporadically, washing cars at a number of venues. The Court heard that he had lost his mother to stroke when he was aged just four years and that, thereafter, he had struggled badly in the educational system. He had a Special Needs Assistant at all stages whom he referred to as a help teacher. The investigating Garda agreed with defence Counsel that the appellant presented as quite a naive individual. The appellant had a speech defect and those speech difficulties developed after the death of his mother. The Court heard that in the aftermath of these events, he had attempted suicide, and one such attempt was prevented by his brother. This occurred approximately one month after the offence.
8. An eloquent and powerful victim impact report was presented to the Court on behalf of the complainant. Dealing with it in the course of her sentencing remarks, the Circuit Court Judge pointed out that the victim impact report conveyed the pain, isolation and emotional turmoil that the complainant had suffered and her loss of trust and her efforts to cope with what occurred. The Judge commented that it was no exaggeration to say that the complainant's recovery will be a lengthy and difficult one.
9. Defence Counsel, at the sentence hearing, urged the Judge to impose a non-custodial sentence, or at the very least, to consider that as an option. The Judge put the matter back for some period to consider the situation. When the Judge came to pass sentence, she commented that it followed as a matter of logic that the age of a child is a core consideration in assessing where on the scale of seriousness the particular offence lies. The Judge pointed out that the complainant was approaching the upper age limit for an offence under s. 2 as she was 14 and a half years, and that if age was the only consideration, then the offence would fall within the lower end of the scale for a s. 2(1) offence. However, the Judge said that she felt that age was not the only consideration and that there were several aggravating factors present, identifying in particular the fact that the injured party was manifestly intoxicated and unwell from the time that she got into the car, that the injured party was entirely dependent on the accused to get her home and that there was a significant age differential between the parties. The Judge said that the accused took advantage of these factors for his own sexual gratification. The Judge commented that the offence had been described as an opportunistic one, which, she said, undoubtedly it was, but said that she did not regard opportunism as a mitigating factor, adding "quite the contrary".
10. In the course of this appeal, the Judge is criticised for regarding opportunism as an aggravating factor. The Judge also said that she also regarded the extreme intimacy of the sexual act involved as a further aggravating factor and also had regard to the severe and lasting impact of the offence on the victim. Again, in the course of the appeal hearing, the Judge is criticised for her reference to the intimacy of the sexual act involved. Counsel for the appellant says that the conduct prohibited by the legislation is all intimate and that the Judge was in error in regarding intimacy as an aggravating factor. The Judge observed that the combined effect of the factors that she identified moved the offence towards the middle of the range in terms of severity. She then identified six years as the headline or starting or pre-mitigation figure, reduced that to four years by reason of the appellant's plea, his previous good character, he had no previous convictions, his admissions and cooperation with the investigation, his remorse, the difficult circumstances of his upbringing, his intellectual limitations and the fact that there was a supportive family. By reference to these factors, she reduced the sentence from six years to four years and then suspended 12 months of this sentence, referring at that stage to the appellant's age at the time of the offence and immaturity. The DPP says that the starting or headline sentence of six years was an appropriate one and that the reduction therefrom was appropriate, indeed, generous. Indeed, the Director says that on one view, the decision to suspend one year of the sentence could be seen as double discounting.
11. This Court agrees with the Circuit Court Judge that this was a case where there were aggravating factors present. In particular, the fact that the injured party was obviously inebriated and obviously unwell has to be the cause of very serious concern. We agree with the Judge that the factors that were present meant that it was not possible to regard this offence as falling within the low range of section 2(1).
12. However, in a situation where the injured party was close to her 15th birthday, at which stage the maximum sentence available would have been reduced from life to five years, we believe that the Judge would have been wise to take a starting or pre-mitigation sentence of not more than five years, and indeed, might have chosen a pre-mitigation sentence as low as four years.
13. As the Judge correctly identified, there were significant mitigating factors present. There was the apology by text, the admissions and cooperation with the Gardaí, there was the plea, there was the fact that there were no previous convictions and that he was a young man who had never been in any kind of trouble before. There were clear indications of deep remorse and, again, there were a number of factors in his background which merited consideration. The fact that he had left school aged 14 years. This Court sometimes finds itself dealing with early school leavers when the decision to leave school early is taken against a background of disciplinary issues and where often the school leaver is out of control. But here, the decision seems linked to learning difficulties. Dr. Lambe, in the course of his psychologist's reports, quotes the appellant as saying that he found the work at secondary school "impossible". Dr. Lambe notes that the appellant's intellectual abilities would be greater than about 7% of same aged peers.
14. The Court has indicated that despite the very obvious care with which the Circuit Court Judge approached sentencing, that the identification of a pre-mitigation sentence of six years was too high and amounted to an error. The Court will, therefore, intervene and will do so by nominating a pre-mitigation sentence of four years and will then reduce that pre-mitigation sentence to two years to take account of the mitigating factors present to which reference has been made. The sentence will, of course, date from the same day as in the Circuit Court. The Court will hear Counsel on both sides about the desirability or need for post-release supervision. The Court wants to confirm that in resentencing, that in accordance with the established jurisprudence of the Court, it is doing so as of today's date. In deciding on the sentence, we have regard to updated material that has been made available to us which comprises very positive reports from the Governor, from the educational service in Arbour Hill and from the Chaplain. The Governor, for example, refers to the appellant as a model prisoner and refers to his constructive work with both the educational service in seeking out employment within the prison. The Chaplain comments that since the appellant's arrival in Arbour Hill, that he has settled in very well and that he was trying to get involved in all the activities on offer. The Chaplain refers to the appellant's work in the print shop, the fact that he attends school regularly, that he gets on well with staff and fellow prisoners and presents no disciplinary problems and refers to the wonderful family support that he has which was helping him to get through his sentence and motivating him to use his time in prison well.
15. In summary, the Court will quash the sentence of the Circuit Court and will impose a sentence of two years imprisonment to date from the same day as the Circuit Court.
