Court of Appeal reduces rape sentence from nine to seven years with three years suspended due to mitigating factors.

THE COURT OF APPEAL

Ryan P.

Hogan J.

Edwards J.

186/13

The People at the Suit of the Director of Public Prosecutions

V

M.H.

Appellant

Judgment of the Court (ex tempore) delivered on the 10th day of December 2014, by Mr. Justice Edwards

1. This appeal arises out of a sentence hearing following the entry by the appellant of pleas of guilty before the Central Criminal Court

to a total of nine offences, comprising (i) one count of rape contrary to s. 48 of the Offences Against the Person Act 1961 and s. 2

of the Criminal Law (Rape) Act 1981, as amended; (ii) four counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment)

Act 1990 and (iii) four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended by s.

37 of the Sexual Offenders Act 2001. The offences involved a single victim.

2. The learned trial judge imposed sentences of nine years imprisonment in respect of each of the rape offences, with the last three

years of each of those sentences being suspended. He also imposed sentences of three years imprisonment for each of the sexual

assault offences. All sentences were to run concurrently.

3. I will deal briefly in a moment with the circumstances in which the offences were committed, but it has to be said at the outset

that offences of this type are heinous offences and there are a considerable number of them in this case. On any view of the matter

this is a serious case. It is serious not only from the point of view of society but particularly from the point of view of the unfortunate

victim in this case, who has been profoundly affected by what has happened to her in the course of being assaulted by the appellant.

4. That having been said, the court must be concerned, as indeed the trial court was required to be concerned, not with abstract or

generic forms of the offences in question, but with the specific offending conduct as committed by this particular offender.

5. The court has carefully considered the sole substantive point that was agitated in this appeal i.e., that in fixing the place of the

rape offences at nine years on the scale of potential penalties, before taking account of mitigating factors, the learned trial judge

took too severe a view of the case and afforded the offending conduct a higher rating on the spectrum of available penalties than

was merited in the circumstances.

6. The court has considered this submission and agrees that the learned judge did locate the offences in question in a position that

was too far along the relevant scale in terms of their seriousness.

7. Before saying any more about that, it is necessary to elaborate a little on the nature of the offending conduct in this case. What

the Court is concerned with in this case, is abuse by an older cousin of a younger cousin. There was a five and a half year age

difference between them. The case concerns offences that occurred in the years 2003. 2004 and 2005. However, while those are the

years relevant to the charges on the indictment to which the appellant pleaded guilty, the court was invited to take account of a

fact, alluded to in a probation report that was before the learned trial judge, that the pattern of offending behaviour which culminated

in those charges actually commenced prior to 2003, and perhaps going as far back as 1999 when the accused in this case would have

been twelve and his cousin, the injured party, would have been only six. That is relevant as it bears on the culpability of the

appellant, and ought to have been taken into account.

8. The offending conduct commenced, we are told in the probation report, with inappropriate behaviour in primary school, the older

cousin catching the younger and kissing her. It progressed then to a pattern of touching in inappropriate places, particularly in the

anal and vagina areas. It progressed from that to the situation of the appellant taking out his penis and requesting the complainant to

touch his penis.

9. It is clear that throughout the period that we are concerned with, the offending continued to escalate in seriousness. There

followed a number of incidents of s. 4 rape which involved oral sexual activity where the appellant required the unfortunate victim in

this case to take his penis into her mouth. The offending increased in frequency also and it culminated in 2005 with a single incident

involving full vaginal rape. At that point the victim was twelve years of age and the appellant had recently turned eighteen.

10. The court has had close regard to the victim impact report in this case, as indeed did the learned trial judge.

11. There were a number of factors in the evidence as a whole, some aggravating and some mitigating, that the learned trial judge

identified and took into account. These included the inherent gravity of the offences, the breach of trust involved, the age of the

victim, the disparity in ages between the parties, the length of time over which the offences extended, the multiplicity of offences,

blackmailing conduct when the appellant’s victim sought to refuse to touch his penis, the effect on the victim as disclosed by the

victim impact evidence, and the age of the appellant at the time of committing the offences.

12. An important mitigating feature, not specifically alluded to, was the relative immaturity of the appellant at the time of his

offences, particularly the earlier offences. While the appellant had turned eighteen in June 2005, he was legally a child himself during

the overwhelming majority of the period of his offending. The age difference between the two cousins was just five and a half years.

The court considers that as a matter of strong likelihood the appellant in this case did not, during the period of his offending, have

the level of insight which it is satisfied he now has concerning the nature of his offending behaviour and the effects of what he was

doing on his victim.

13. The court acknowledges that the learned trial judge expressly stated that he was taking into particular account the age of the

accused at the time of the perpetration of these offences. However, the court considers that, though the learned trial judge did

acknowledge that the was taking account of the age of the accused, he did not attach sufficient weight to, not so much his age, but

the fact that he had only just at the time of the last offence, i.e., the vaginal rape offence, attained his majority. The court is of the

view that the learned trial judge attached insufficient weight to the relative immaturity of the offender in this case for the vast

majority of the period with which we are concerned, and was in error in that respect.

14. Notwithstanding that the appellant was legally a minor during most of the period of his offending, he was above the age of

criminal responsibility at all times and must now accept criminal responsibility for what he has done. In the court’s view it is a case

that cannot be dealt with other than by means of a custodial sentence, but not a custodial sentence at the level at which it was

imposed by the learned trial judge in this case.

15. The Court has been referred to the decision in DPP v W.D. [2008] 1 I.R. and in particular to para. 37 of that judgment. It has been

submitted on behalf of the respondent that this case belongs within the category of cases identified in W.D. as meriting punishment in

the range of between nine and fourteen years imprisonment. We do not consider that this is a case that comes within that category

of offences.

16. Insofar as the learned trial judge rated the case as meriting a sentence of nine years imprisonment, he placed it too far along the

scale of seriousness and was in error in doing so.

17. In circumstances where the Court has identified errors of principle in the original sentencing of the appellant it will now set aside

the sentences imposed upon him for the rape offences and proceed to impose appropriate sentences as of this date.

18. The Court takes into account all of the evidence that was before the learned sentencing judge. It is, of course, a highly material

matter that this particular victim, the appellant’s young cousin, was very significantly affected by what occurred. She describes in her

victim impact statement waking between five and ten times a night in a state of panic and distress. She has had great difficulty in

sleeping and this has had a huge effect on how she has performed academically. At one point she signed herself out of school and

made her way to Galway and attempted to self harm, taking a large quantity of pills and vodka. She overcame that incident

fortunately and managed to go to college to study nursing in NUIG, but remained deeply hurt and angry and found it extremely

difficult to cope with coming to terms with what had befallen her during her childhood. Her childhood was in a large measure ruined by

the conduct of this appellant and she decided to defer her second year place. At the time that she made her victim impact statement

she was only a year out, but she stated that she was still suffering from terrible nightmares, getting little or no sleep each night, her

moods were constantly up and down and she found it very difficult to stay in her house on her own and she gets days where anxiety

takes over her life and she is afraid to go anywhere alone. She contends that it is no exaggeration to say that what occurred to her

has torn her life apart and has affected every aspect of her life, her studies, her friends and relationships and her family life have all

suffered. The court must view the appropriate sentence against inter alia, that background.

19. On the plus side however, and in fairness to the learned trial judge he gave the appellant credit for this, the crimes came to light

due the actions of the appellant himself. He was reaching a point of gaining true insight into what he had done. He has continued on

that journey. It was as a result of the appellant himself going to the Gardaí, informing them of the facts, and making the admissions

that he made, that this case came to be prosecuted. Just as importantly, however, it also began a process which will hopefully, in

time, provide the injured party with some degree of closure in respect of these matters, and assist her in trying to put these matters

behind her at least to some extent.

20. Actions speak louder than words, and this young man’s actions in going to the gardaí when he did, are testament in themselves to

the fact that he has begun to gain insight into the awfulness of what he has done. That having been said, the Probation and Welfare

Service, having assessed his risk of re-offending using the RM 2000, and the Stable and Acute 2007, risk assessment instruments,

places him in the medium risk category for sexual re-offending.

21. On the positive side, the Probation and Welfare Service Report notes that he has developed insight into his inappropriate and

abusive behaviour and that he has demonstrated both willingness, and latterly an ability, to engage in exploring his abusive behaviour.

This Court considers that this circumstance is an important one, and takes it into particular account in addition to the other mitigating

factors.

22. The other mitigating factors which the Court is prepared to take into account include the pleas of guilty delivered at the first

opportunity, the appellant’s co-operation, the absence of previous convictions, his age at the date of the offences, the fact that he

was legally a minor during the preponderance of his offending, the age difference of just five and a half years between offender and

victim, the appellant’s immaturity, and his positive work ethic.

23. In accordance with established jurisprudence the Court also takes into account new material proffered on behalf of the appellant

concerning how he has got on since going into prison. The testimonial material that has been put forward speaks to the fact that

there is a continuing commitment and engagement by this young man towards his rehabilitation and that he is determined to put this

reprehensible chapter in his life behind him. It is hoped very much that he can be a positively contributing member to society when

eventually he is released from prison.

24. In conclusion, this Court would rate the specific offending behaviour in this case, to the extent that rape was involved, as

attracting a sentence of seven years, on a neutral basis. However, when the significant mitigating factors in this case are taken into

account the court considers that it ought to follow the lead given in that regard by the learned trial judge and suspend the last three

years of it, resulting in an effective sentence of four years. He is therefore sentenced to seven years for each rape offence, the last

three years of which is to be suspended in each instance on the same basis as heretofore, and all such sentences are to run

concurrently. These are in substitution for the sentences of nine years with three years suspended imposed by the learned trial judge.

The Court does not propose to interfere with the three year sentences imposed in respect of the sexual assault counts.