Irish Court of Criminal Appeal

Judgment Title: DPP -v- Moustafa Iasmaeil

Neutral Citation: [2012] IECCA 36


Court of Criminal Appeal Record Number: 193CJA/11

Date of Delivery: 08/02/2012

Court: Court of Criminal Appeal

The applicant, Moustafa Ismaeil, has appealed to this Court against the severity of the six year sentence imposed on him by His Honour Judge McCartan on 27^th July, 2011, following his conviction earlier that month in the Dublin Circuit (Criminal) Court on a single count of child abduction contrary to s. 17 of the Non Fatal Offences Against the Person Act 1997 (“the 1997 Act”). The conviction on the single count came at the end of a jury trial at which he had pleaded not guilty to the charge. On 25^th January, 2012, this Court announced that it was dismissing Mr. Ismaeil’s appeal. The purpose of this judgment is now to give the reasons for that decision.

Mr. Ismaeil is an Egyptian national who is the paternal uncle of an Irish citizen, Daniel Faris Heaney. Faris was born in 2007 and was just over two years of age when he was abducted by Mr. Ismaeil on 29^th July, 2009, in circumstances we will shortly describe. Faris is the son of Mr. Amir Ismaeil and Ms. Norma Heaney. Following the breakdown of the couple’s relationship, Ms. Heaney retained custody of Daniel, save that from time to time, the child would remain overnight with his father. The child otherwise lived at Ms. Heaney’s family home in Blanchardstown, Co. Dublin with his grandparents and other family members.

The events giving rise to this appeal really commence on 27^th July, 2009. On that day Ms. Heaney left Faris with Mr.Amir Ismaeil at the latter’s apartment for an overnight visit. On the following day, he telephoned his former partner to ask her to permit Faris to stay for a further night. When Ms. Heaney went to collect Faris on the 29^th July, he was not present. Mr. Amir Ismaeil made a phone call in Ms. Heaney’s presence to another member of his family in Egypt in the course of which she believed that she could hear her son crying at the other end of the telephone. It then became clear to her that Faris had been abducted and was by then in Egypt with other members of her former partner’s family.

Following a very prompt and efficient Garda investigation, it emerged that Mr. Moustafa Ismaeil had flown to Egypt on 28^th July, 2009, and was due to return on 1^stAugust, 2009. Further Garda investigations had shown that Mr. Moustafa Ismaeil had travelled with a small child on a flight from Dublin to Istanbul with Turkish Airlines and from there on to Cairo. Security camera footage at Dublin airport showed Mr. Ismaeil taking Faris with him through security screening before boarding the airplane. That footage had also identified the taxi in which Mr. Ismaeil had arrived at the airport and the taxi driver gave evidence at the trial to the effect the young child was in a very distressed state as he was brought to the airport by the applicant. Prosecution evidence was led at the trial to the effect that Faris was dressed in pink clothes and disguised as a little girl as he was accompanied by Mr. Ismaeil through the airport complex. The applicant was in possession of a passport for his four year old niece and Faris was represented by him to be the little girl on that passport. It was through this calculated act of deception that the applicant managed to bring Faris through immigration and passport control.

Faris was evidently delivered by the applicant to the Ismaeil family in Egypt, where he remains. Ms. Heaney and members of her family have managed to visit Faris on four occasions. It would appear that they were pressurised into handing over his actual passport in return for permission to see him. These visits seem to have been exceptionally unpleasant and emotionally draining for Ms. Heaney. Even this Court - the sensibilities of whose members are inevitably dulled by hearing a litany of tragic events and human suffering in the course of the dispatch of the criminal appeal process - cannot but be deeply moved by Ms. Heaney’s account of being compelled to leave Faris behind at the Ismaeil family home in Egypt as her son called out to her in his great distress.

Mr. Mustafa Ismaeil was arrested by Gardaí following his return to Dublin on 1^st August, 2009, on a flight from Istanbul. His account to the Gardaí was that he had taken a young female child of a friend with him to Cairo. He further suggested that the child was simply taken for the purposes of a short visit. Mr.Ismaeil did not give evidence at his trial.

Following the conviction of the applicant, Judge McCartan was told at the sentencing hearing that he had been in contact with his family in Egypt and had requested that Faris be returned. The court was further informed that Mr. Ismaeil had been generally of good character, save that he had also been convicted of a serious assault upon Sergeant Connolly, one of the investigating officers, as the latter had endeavoured to serve a fresh book of evidence on him in relation to this case.

In a very thorough review of the relevant evidence, Judge McCartan, described this crime as “appalling” and “one deserving of the full rigours of the law”, absent compelling circumstances. He noted that the videotape evidence showed that Mr. Ismaeil “executed this operation very skilfully and deceitfully.” Noting that the maximum sentence prescribed by s. 10 of the 1997 Act for this offence was seven year, he allowed the applicant a reduction of one year to take account of the fact that he had a (relatively) good record. The judge further acknowledged as a non-national serving time in jail would be more onerous than would be the case for an Irish citizen and that he had not sought to present a false account of evidence to the jury. These were also factors to be taken into account in assessing the appropriate degree of mitigation.

The starting point for this appeal is whether the offence in question was capable of attracting in principle the maximum penalty prescribed by the Oireachtas, namely, 7 years imprisonment following conviction on indictment: see s. 17(3)(b). In this context, counsel for the applicant, Mr. Loughnane, placed heavy reliance on the comments of Fennelly J. for this Court in The People v. Loving [2006] 3 IR 355, 365:-

“It is unusual to impose the maximum sentence allowed by the law for any offence. Such a decision implies that the actual offence is at the highest level of seriousness. It also fails to make any allowance for the two most basic mitigating points: previous good character and an early admission of guilt. A sentencing policy which fails to make allowance, in particular, for the latter element provides no incentive to accused persons to plead guilty. For reasons already given, the applicant was entitled to some mitigation of sentence for the two reasons mentioned.
Furthermore, the imposition of the maximum sentence allowed by the legislature necessarily implies that the particular offence is at the highest level of seriousness capable of being envisaged for that offence, both as to its intrinsic quality and as to the circumstances in which it was committed.”

Having noted these features of the offence, Fennelly J., then observed ([2006] 3 I.R. 353, 366):-

“The acts of accessing child pornography were committed over a short period of time and then stopped. The pornographic materials were left unused thereafter. The applicant had ceased to abuse alcohol, which had played a large part in his offending. It was not disputed that the applicant was genuinely remorseful and ashamed, though the learned trial judge entirely discounted this element.
Most importantly, there was no suggestion whatever, in contrast with the case of The People (Director of Public Prosecutions) v. G. McC. [2003] 3 I.R. 609, that the applicant had spread or circulated or shown any of the material to anybody else or that he was likely to do so.”

We propose to conduct the same exercise so far as s. 17 of the 1997 Act is concerned by seeking in a similar fashion to ascertain the essence of the offence as defined by law. Before doing so, we would also observe in passing that this Court has already held on several occasions that a sentencing court is entitled to impose the maximum sentence for the offence in question, even if there is a plea of guilty: see, e.g., The People v. Duffy [2009] IECCA 20, [2009] 2 I.R. 395. This is also reflected in the terms of s. 29(2) of the Criminal Justice Act 1999 which empowers the sentencing court to impose a maximum sentence “if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence”: see generally the discussion of this topic by Kearns J. in The People v. RMcD. [2007] IESC 47, [2008] 2 IR 92 at 104-105.

Turning now to the offence itself, s. 17(1) of the 1997 Act provides:-

“A person, other than a person to whom section16 applies, shall be guilty of an offence who, without lawful authority or reasonable excuse, intentionally takes or detains a child under the age of 16 years or causes a child under that age to be so taken or detained—
(a) so as to remove the child from the lawful control of any person having lawful control of the child; or

(b) so as to keep him or her out of the lawful control of any person entitled to lawful control of the child.”

The gravamen of the offence under s. 17(1) is the intentional and unlawful taking or detention of a child under 16 years of age from the lawful control of any person so as to remove the child from that lawful control or by seeking to keep him out of that lawful control. Each ingredient of this offence is clearly met in the present case.

First, the applicant clearly intentionally removed a two year child from the lawful custody of his mother. There was not a shred of lawful authority for this conduct, involving as it did a series of cynical acts of calculated deception and the false imprisonment of the child.

Second, the applicant clearly intended to deprive Ms. Heaney permanently of custody of the child by removing Faris to the Ismaeil family in Egypt, a country to which the Hague Convention on Civil Aspects of International Child Abduction does not apply. While it was rather faintly suggested that the applicant merely sought to facilitate the temporary transfer of the child to his brother’s family, he never gave evidence to this effect at this trial. In any event, all the available evidence clearly points to the contrary.

Viewed thus, it is hard to see how this does not constitute the worst possible form of child abduction, or, at least, that the learned trial judge was entitled so to regard it. The abduction was calculated and intentional. The applicant - doubtless in collusion with others - deceived the child’s mother and removed a two year child to Egypt with a view to ensuring that the mother would be permanently deprived of any future role in the rearing of that child. Worst of all, it deprived a two year old child of the care and comfort of his mother and intentionally removed him to a strange and alien environment. The elaborate nature of the deceit, the tender age of the child, the element of false imprisonment and the permanent nature of the removal of the child are all gravely aggravating factors.

We were informed that this is apparently the first appeal to come to this Court by reason of a conviction under s. 17 of the 1997 Act, so that there are no previous sentence appeals arising under this section which might be of direct assistance by way of comparison to the present case. We nevertheless consider that the judgments of this Court and the Supreme Court in The People v. Edge [1943] I.R. 115 merit some examination in the present context, as it appears to be the only other instance of where an offence of this type has been examined by either this Court or the Supreme Court.

In Edge, the accused was a thirty five year old male who had been originally convicted of the common law offence of kidnapping by encouraging a 14 year old boy - with whom he had struck up a strange friendship - to run away from his boarding-school in Dublin. To this end, the accused had secreted the boy - with the latter’s apparent consent - over a long weekend in a house in Wicklow, leading his parents to think that he had gone missing. Although the Supreme Court was later to quash the conviction on the ground that the offence in the indictment was one not known to the common law, it is nonetheless worth noting that the Court of Criminal Appeal thought that an appeal against the severity of the six months sentence imposed by the Circuit Court was quite unsustainable: see [1943] I.R. 115 at 126, per Sullivan C.J.

It is true that accused’s conduct in Edge also involved the most egregious deception of the boy’s parents. But the boy was considerably older and, as the Supreme Court majority was later to note, he had reached an age where he could generally decide his own right of abode. Moreover, there was no intention permanently to remove the boy from the custody and control of his parents and the boy was removed for at most four days from his boarding school. While the facts disclosed in Edge were serious, the conduct of the accused in that case was nothing as reprehensible as in the present case.

Mr. Loughnane also emphasised that there might be other cases where the child had been taken abroad for the purposes, for example, of sexual exploitation or where the abduction had involved the detention of the child against its will for a lengthy period. It is true that such conduct would involve even greater moral delinquency that was displayed here. But, as counsel for the prosecution, Ms. Burns, properly noted, in those types of cases such an accused would have been charged with an even more serious offence. Thus, for example, facilitating the exit of a child from the State for the purposes of sexual exploitation carries a maximum penalty of life imprisonment: see s. 3(1) of Child Trafficking and Pornography Act 1998. Falsely detaining a child or restricting its personal liberty for the purposes of sexual exploitation carries a maximum penalty of 14 years’ imprisonment: see s. 4(2) of the 1998 Act. False imprisonment carries a maximum penalty of life imprisonment: see s. 15(3)(b) of the 1997 Act .

We repeat, therefore, that as an example of a case of child abduction simpliciter, this case falls within the very worse category of possible offences which might arise under the section. It follows, therefore, that Judge McCartan was entirely justified in treating this particular offence as constituting the most serious possible type of offence for the purposes of s. 17 of the 1997 Act. Indeed, this is precisely the kind of exceptional case envisaged by s. 29(2) of the Criminal Justice Act 1999, which would have entitled Judge McCartan to impose a maximum sentence, even if the applicant had entered a guilty plea (which, of course, he did not).

We turn now to consider any possible mitigating factors over and above those previously allowed for by Judge McCartan (i.e., his previous good character and the fact that, as a non-national, prison life would bear more heavily on him than it would on an Irish citizen).

Absent a plea of guilty, the most obvious possible mitigating factor in a case of this kind would be where the applicant had shown genuine remorse and had sincerely endeavoured to persuade his family to return the child and thus redress the grievous wrong done to Faris and his mother. The evidence at the sentencing hearing was simply that the applicant had been in contact with his family in Egypt on several occasions by telephone. Sergeant Connolly confirmed that there had been such contact, but he was not in a position to comment on the suggestion put to him in cross examination to the effect that the applicant had sought to persuade his family to return the child. Noting that the applicant gave no evidence before the sentencing court, we find ourselves unpersuaded that there was any real endeavour on his part to show genuine contrition or that he made a real and sustained effort to have the child returned to the custody of his mother.

Nor can we accept that the fact that the child was not physically ill-treated is in itself a mitigating factor, since were this to have occurred, it would have exposed the applicant to a range of other even more serious penalties.

We are naturally conscious of the fact that this Court must adhere to the basic constitutional principle of proportionality in sentencing: see, in particular, the comments of Denham J. in The People (Director of Public Prosecutions) v. M. [1994] 3 I.R. 306 at 318-319. The sentence must accordingly be proportionate to the intrinsic gravity of the offence and the particular circumstances of the applicant.

In addition, however, the Court must also be cognisant of the fact that the applicant’s conduct deprived Ms. Heaney of the care and custody of her young child, core constitutional rights protected by Article 40, Article 41 and Article 42 of the Constitution. Indeed, in Edge several members of the Supreme Court suggested that, in the absence of legislation dealing with child abduction, the State would be in breach of its constitutional obligation contained in Article 41.1.2 to protect the family in its constitution and authority: see, e.g., [1943] I.R. 115 at 147, per Black J. and at 171-172, per Gavan Duffy J.

While fairness to the individual accused in the course of the sentencing process is, of course, a paramount consideration, in a case such as this the Court must also seek, if possible, to vindicate the constitutional rights of the victim by ensuring that others will be deterred by the prospect of a severe punishment. It is important and in the public interest that others who might be tempted to abduct children in this fashion should realise in advance that this offence is viewed by the judicial system as very grave indeed and that, absent strong mitigating factors, they are likely to face a condign punishment if convicted. The facts of this case are, moreover, sufficiently grave as to make one wonder whether the maximum penalty of seven years prescribed by the Oireachtas is truly sufficient to dissuade those who are determined to abduct a child in the calculated and pre-meditated fashion in which this was done in the present case.

For these reasons, we consider that the sentence imposed here was entirely proportionate, reflecting the inherent gravity of the offence and the enormous life-changing impact this crime had on a mother, her wider family and, not least, her young vulnerable son.

Before concluding this judgment, however, the Court would wish to register its deep concern that a young Irish citizen has been abducted to a friendly country with which we have diplomatic relations. It would nonetheless seem that the child is being detained by the Ismaeil family in Egypt with apparent impunity, as efforts to have Faris returned to his mother and rightful custodian have been unavailing to date. It is possible that the Egyptian authorities are unaware of the precise circumstances leading to his abduction. If so, then this judgment ought to make abundantly clear the circumstances in which this young child came to be unlawfully abducted and transported to Egypt.

In these circumstances, the Court proposes to take the unusual and most exceptional step of directing the Registrar of the Court to send a certified copy of this judgment to the Minister for Foreign Affairs in the expectation that he in turn will transmit a copy of this judgment to the Egyptian authorities through the appropriate diplomatic channels. The Court trusts that the Egyptian authorities will in turn appreciate the seriousness of the matters disclosed by the contents of this judgment and take appropriate action.

In the event that Faris were to be returned to his mother, then one important aspect of the sentencing policy reflected in the present case - deterrence - would have been fulfilled. In those circumstances, were Mr. Ismaeil to petition for clemency, then the Government would be fully justified in exercising its powers of remission in respect of the applicant under the provisions of s. 23 of the Criminal Justice Act 1951 in the event that it thought fit to do so..

It was for these reasons that the Court dismissed the applicant’s appeal against the severity of the sentence imposed upon him.