Director of Public Prosecutions v Flaherty [2019] IECA 340 (24 October 2019)

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JUDGMENT (Ex tempore) of the Court delivered on the 24th day October 2019 by

2. The background is to be found in the fact that following a trial, which took place between

21st November 2017 and 12th December 2017, the appellant was convicted of the

offence of sexual assault. Subsequently, on 9th March 2018, he was sentenced to a term

of five years imprisonment. He appealed against conviction and against the severity of

sentence. This Court, in a judgment delivered on 31st July 2019, dismissed the appeal

3. The factual background is dealt with at some considerable length in the course of that

judgment and that exercise will not be repeated now. Sentence was imposed in a

situation where a sentence hearing had taken place on 7th March 2018. The sentence

hearing was slightly unusual, in that the emphasis was not so much on a plea for

leniency, though that was of course present, but invited the Court to address the

difficulties in sentencing that arose from a victim impact report and the need to identify

and then sentence specifically in respect of that for which Mr. Flaherty was convicted. The

issue in relation to the victim impact report arose in circumstances where the appellant

had stood trial on a number of counts, and in respect of the counts, other than the sexual

assault count, the jury had either acquitted or disagreed. However, the point was made

that the victim impact report was based on the account that the complainant had

presented to the jury which encompassed both the matter which resulted in a conviction

4. The evidence adduced through the investigating member, Garda Aisling O’Connor, at the

sentence hearing, referred to three matters as relevant to the sexual assault: the

removal of the trousers of the complainant, against her will; the “strangulation” for a

5. The Court heard that the accused, now appellant’s date of birth is 2nd October 1987. The

Court heard that he had six recorded previous convictions. These were for driving without

insurance, three in the nature of driving while over the alcohol limit and one for being

drunk and a danger to traffic. Before the sentencing Court was a psychologist’s report

from Dr. Lambe and there were also a number of positive testimonials from persons who

6. The judge’s sentencing remarks were somewhat lengthier than usual, reflecting the

complexities that had emerged at the sentence hearing. The Court referred to the fact

that the defence submissions were that the Court would have to make a finding that there

was some consent on the part of the complainant to some form of intimate sexual

conduct, and the judge commented that in his view, that would be an actual perverse

finding, not in accordance with the weight of evidence given to the jury. In relation to the

offence itself, the judge commented that in his view, it was self-evident that this was a

very serious sexual assault, and certainly could not be described as any sort of minor

sexual assault. The Court accepted that this was not a premediated action on the part of

7. In the course of the appeal against severity of sentence, a number of issues have been

canvassed. Thus, the difficulty that the judge faced in identifying precisely what the

appellant had been convicted of has been rehearsed once more. The question has been

raised as to whether a single count of sexual assault could encompass more than one

form of sexual activity, in this instance, three forms of untoward activity, the removal of

the clothing, the “strangulation” and the genital touching. If the Court was to address all

the issues that were raised in the course of the sentence hearing, that would be a major

task and would inevitably be a fairly lengthy process. Some of the issues were being

couched in unusual and somewhat provocative terms and would not be readily resolved.

8. However, in the Court’s view, while the judge’s task in this case in sentencing against a

background of a conviction for one offence and acquittals and disagreement for other and

more serious offences was a difficult one, the difficulty was not unique. In any case where

there are a number of counts on the indictment and a jury has heard a narrative that

addresses all of them and then convicts only on one or more of the less serious offences

on the indictment, the judge’s task is a difficult one. The judge must be careful to

sentence only in respect of the activity which resulted in the conviction, and the judge

must be careful to avoid a situation where the activity alleged in respect of which there

was no conviction permeates into the case and influences, or indeed appears to influence

9. In this case, the judge approached his task of sentencing with particular care. We have

already referred to the fact that his sentencing remarks are longer than usual and the

Court was clearly conscious of the need to avoid the danger of sentencing in respect of

unconvicted activity. Careful as the judge was, we are still left with a sense of unease.

The sentence was a significant one. While we agree with the trial judge that by no stretch

of the imagination, that even if the activity in respect of which there was either a

disagreement or an acquittal is stripped out, could this be described as any form of minor

sexual assault, we have a concern, however, that the sentence ultimately imposed was

the sort of sentence that one might expect to see imposed for a sexual assault as part of

10. Given the difficult and sensitive situation that the jury verdicts had created, we feel that

the sentence imposed should have been one which left no room for doubt about the fact

that the unconvicted allegations had any influence. We feel that that would have resulted

in a lower sentence. We recognise it might indeed result in a sentence lower than, on one

view, the misconduct engaged in merited, but we nonetheless believe that is appropriate

11. In resentencing, we have regard to the fact that the case was contested and what the

outcome was. The considerable mitigation that is available following a plea of guilty in a

sex case is not available. However, on the other hand, one cannot lose sight of the fact

that in a situation where an indictment was presented which contained a number of more

serious counts, the options available to the appellant were limited. On one view, his

decision to contest the case has been endorsed by the verdicts of the jury. Thus, the case

is to some extent distinguishable from one where a case is fully contested and convictions

12. We have regard to the information that was put before the sentencing Court and updated

before this Court about the appellant’s background and personal circumstances. We

attach significance to the fact that there are no previous convictions of a similar nature

and have regard, too, to the positive testimonials that have been provided. Absent the

mitigating factors present, we would have seen an appropriate sentence as being in the

range of three and a half to four years. However, to reflect the significant mitigating

factors that are present, the Court will impose, instead, a sentence of two and a half

years, which will of course date from the same date as the sentence imposed in the

Circuit Court.

Result: Allow and Vary

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