[2025]_IECA_87 — [2025]_IECA_87 — Ireland courts

THE COURT OF APPEAL Neutral Citation: [2025] IECA 87 Record Number: 115CJA/2024 McCarthy J. Butler J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT -AND-

DL RESPONDENT

JUDGMENT of the Court delivered on the 6th day of March 2025 by Ms. Justice Tara Burns

1. This is an application pursuant to s. 2 of the Criminal Justice Act 1993 (‘the 1993 Act’) seeking a review of the sentence imposed on the respondent on grounds of undue leniency.

2. The respondent was charged with two counts of using information and communication technology to facilitate sexual exploitation of a child contrary to s. 8 of the Criminal Law (Sexual Offences) Act 2017 (‘the 2017 Act’) (counts 1 and 3) and a single count of meeting a child for the purpose of sexual exploitation contrary to s. 7 of the 2017 Act (count 2).

3. On 13 November 2023, the respondent pleaded guilty to all counts on the indictment. While this was a trial date, the applicant had been notified that this course of action would be adopted by the respondent in advance of the trial date.

4. On 19 March 2024 the respondent was sentenced to concurrent terms of imprisonment, on each count, of two and half years with the final eighteen months suspended on certain terms and conditions.

Background 5. Counts 1 and 2 relate to events which occurred on 14 August 2019. The respondent communicated with the victim, who was 15 years of age, on a social media app called ‘Grindr’. In the course of the communication, it was clear that the victim was a school boy. The respondent communicated “You’re my type for sure” and used a smiley emoji. Arrangements were made to meet the victim near a playground in a rural location. The purpose of the meeting was to have sexual engagement. Later that day, the respondent met the victim and took him in his car on a 30 km journey into the provincial city where he lived. The victim became concerned about the situation he found himself in and exited the respondent’s car when it was stopped at traffic lights. He sought help from a vehicle which was stopped behind by asking could he get into the car as he thought he was being kidnapped.

6. The respondent drove away when the traffic allowed him to do so, however he was later tracked down as a result of details of his car being recorded and an Evofit created with the help of the victim. He accepted his involvement in what had occurred, when arrested and detained by the investigating guards. He indicated that he thought the victim was 16 years of age; that he did not intend to have sexual engagement with the victim, once he met him as he looked too young and only intended to go for something to eat with him; that it was the victim who wanted to have sexual engagement with him; that he knew what he was doing was wrong and that he knew the victim was under the age of consent.

7. Of note, the sentencing judge viewed a s. 16 specialist interview recording of the victim and was of the view that the victim looked very young.

8. Count 3 related to communications from the respondent on 2 August 2019 on the Grindr App to a person called “Young” wherein the respondent was seeking sexual interaction with a 15 year old child which he was willing to pay both “Young” and the child for. The child was asserted to be a cousin of “Young” and the messages referred to the respondent previously having had sex with this child. Naked photographs of the child were also requested by the respondent and were sent.

9. This communication was revealed as a result of a Cellbrite analysis being conducted on the respondent’s phone which had been seized as part of the investigation into the events which had occurred on 14 August 2019. The appellant also discussed the details of these communication in the course of being interviewed by the investigating guards, whilst arrested and detained and accepted the contents of the communications.

Personal Circumstances of the Respondent 10. The respondent was 40 years of age at the time these offences were committed. He is a Polish national but had lived in the State since 2007 and has been gainfully employed. He is a single man and has no previous convictions.

Grounds of Application 11. The grounds upon which the respondent seeks to review the sentence imposed on the appellant are in essence that the sentencing judge erred in the nomination of a four year headline sentence for each of the offences, when the offences comprised in Counts 2 and 3 related to more serious offending; and that the sentencing judge erred by failing to mark the fact that two separate victims were involved by either imposing a consecutive sentence or by imposing a higher headline sentence in light of the aggravating factor of two separate victims being involved. The Parties Submissions 12. The appellant submitted that the headline sentence of four years for each of the three offences was too low, particularly in circumstances where the offending reflected in Counts 2 and 3 was offending of a serious nature. In addition, the appellant submitted that the fact that count 3 related to a separate child should have been viewed as a significant aggravating factor which should have resulted in a higher headline sentence being identified, or a consecutive sentence being imposed. It was further submitted that the sentence imposed did not adequately address the principle of deterrence which was of particular importance in offending of this nature.

13. The respondent submitted that the headline sentence was within the sentencing judge’s margin of discretion; that the guilty plea in the case was of significant assistance to the respondent’s case; and that the guilty plea together with the other mitigatory factors present in the case were appropriately considered and marked by the sentencing judge.

Discussion and Determination 14. The principles for determining undue leniency are well established and are set out in The People (Director of Public Prosecutions) v. Stronge [2011] 5 JIC 2301, which this Court adopts. In essence, the applicant must prove that the sentence imposed constitutes a substantial departure from the appropriate sentence such that an error of principle is established, before this Court will intervene.

15. DPP v. Hussain [2015] IECA 22, sets out relevant considerations which a sentencing court should have regard to when assessing the gravity of an offence of this nature and we have had regard to those considerations in determining this application.

16. The offending behaviour comprised in the three counts on the indictment reflected behaviour of quite a different and serious nature as between each count. Whilst a 4 year headline sentence for the behaviour reflected in Count 1 fell within the sentencing judge’s discretion, the behaviour reflected at Counts 2 and 3 is far more serious.

17. Count 2 related to actually meeting with the child and taking the child on a car journey of approximately 30 km, before the child became concerned for his safety and escaped from the car. Whilst the respondent indicated in his interviews with the investigating guards that having seen how young the child was, he did not intend having sexual engagement with him and only intended to bring him for something to eat, this is an explanation which does not withstand scrutiny when the communications relating to count 3 and the appellant’s admissions to the investigating guards relating to those communications are considered. This offending is very significant and far more serious than the offending which is reflected in count 1. The imposition of the same sentence for this offending as the four year sentence imposed in respect of Count 1 is an error in principle.

18. In addition, the nature of the offending referred to in Count 3 is also of a far more serious nature than that comprised in Count 1, where the technological communication reflected in Count 3 relates to seeking a 15 year old child for sexual engagement of the most serious kind in circumstances where the child and the person providing the child was to be paid. Again, the disparity between the seriousness of the offending reflected in Count 3 to that in Count 1 is an error in principle.

19. Furthermore, the fact that two separate children are involved is an aggravating feature. It was an error in principle for the sentencing judge not to reflect that aggravating factor in the sentence imposed whether by the imposition of a consecutive sentence or a higher headline sentence for the offence which was aggravated.

20. Accordingly, in light of the errors in principle identified by the Court, we are of the opinion that the sentence imposed was unduly lenient within the meaning of s. 2 of the 1993 Act. In light of this determination, the Court will quash the sentence imposed and proceed to re-sentence the respondent de novo as of today’s date.

Re-Sentence 21. As already stated, the offending in this case was of a most serious nature. We have had regard to the Memorandum of Interviews conducted with the respondent and the admissions which he made in respect of the offending behaviour, together with the evidence of the communications in respect of Counts 1 and 3 which exist.

22. As Count 3, is the first count in time, we will commence sentencing for that matter first. This was offending of a very serious nature where a person is being asked to provide their cousin for serious sexual engagement for which that person will be paid, as will the child. Naked photographs of the child were sent. Arrangements were sought to be made for the sexual engagement to take place. Having regard to this offending and the aggravated features present, we are of the opinion that a headline sentence of 6 years imprisonment is appropriate.

23. With respect to Count 1, the offending whilst not as serious as the offending reflected at Count 3, nonetheless is aggravated by the earlier offending reflected in Count 3. We are of the opinion that this offending attracts a headline sentence of 4 years imprisonment.

24. With respect to Count 2, the circumstances of meeting up with the child for the purpose of sexual engagement with him, is aggravated by the factors of taking the child in a car on a 30 km journey and by the earlier offending conduct reflected in Count 3. We are of the opinion that this offending attracts a headline sentence of 9 years imprisonment.

25. Mitigatory factors were present in the case, in the nature of a guilty plea which although entered on a trial date was notified well in advance. The respondent had no previous convictions and was otherwise of good character and had a history of employment. In addition, the respondent was very co-operative with the investigating Garda as evidenced in his memoranda of interview. Also, he expressed remorse and demonstrated insight into his offending behaviour. Furthermore, the applicant accepted that the plea was very valuable with respect to those counts relating to the identified child victim and the court acknowledges this acceptance. A psychotherapist report placed the appellant at a low risk of re-offending. We have difficulty in accepting this conclusion of the psychotherapist in light of the fact that while the respondent self reported to him, he did not provide him with a full account of the details of his communications on the Grindr app which were for the purpose of sexual exploitation of a child.

26. Accordingly, having regard to the mitigatory factors identified, we are reducing the headline sentences identified and imposing a sentence of 4 years on Count 3, 6 years on Count 2, and 2 and half years on Count 1.

27. Having regard to the principle of totality and proportionality and in light of the fact that we have dealt with the aggravating factor of there being two children involved by taking account of that factor when assessing the headline sentence for Count 2, we will impose concurrent sentences in respect of all 3 counts.

Approved

No Redaction Needed