Irish Court of Appeal

 

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 89

Record Number: 146CJA/24

 

Edwards J.

McCarthy J.

Kennedy J.

 

 

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

APPLICANT/

 

- AND -

 

P.H.

 

RESPONDENT

 

JUDGMENT (ex tempore) of the Court delivered on the 31^st day of March 2025 by Ms. Justice Isobel Kennedy.

1.        This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s.2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency of a sentence of 13 years with the final 18 months suspended, imposed for 25 counts of rape, with the remaining 23 counts of indecent assault taken into consideration.

Factual Background

2.       The respondent is the victim's father. He committed a persistent campaign of sexual abuse and rape against her over a span of approximately 12 ½ years, beginning from when the victim was 3 ½ years of age and the respondent was 21 years of age. The offending continued until she was circa 15/16 years old.

3.       One of the victim's first memories was that of being sexually assaulted by the respondent. The first incident is described in graphic terms in the evidence with the victim recalling that she was so young she was wearing a night cloth nappy, secured with a safety pin which she recalled as being pushed into the headboard behind her. The respondent proceeded to bounce child on his penis. The victim was consistently raped and sexually abused throughout her childhood on a weekly basis, sometimes more, and particularly during periods where her mother was not present, or the respondent had more access to her. However, the abuse also occurred in the presence of other family members, and did not stop for any extended period. The respondent often used normal childhood requests, such as requests for pocket money, as a form of leverage to further exploit and sexually abuse the victim. What is quite clear is that the offending was very frequent indeed.

4.       The sexual offences constituted digital penetration, oral penetration and the groping of her breasts at a later stage. Adding to her humiliation, the respondent would, during her early puberty, sometimes come into the bathroom while she was bathing, and while he would not sexually abuse her, he would sometimes touch himself or make moaning sounds or comments as to her state of undress. 

5.       The abuse caused the victim serious physical pain and injury throughout her childhood, as well as significant, long lasting mental and emotional distress which continues. The abuse has caused a divide in the family, and has caused the victim to attempt to take her own life.

6.       The abuse ended when the victim was around 15 or 16 years of age. Approximately 1 to 2 years following this, there was a confrontation within the family in relation to the abuse, and the victim stated that the respondent admitted the abuse and apologised to her. This admission and apology were later denied by the respondent.

7.       The victim made a complaint to gardaí many years later. Gardaí arrested and questioned the respondent, but nothing of probative value emerged and no admissions were made.

8.       Following the garda investigation, the respondent was tried on, and found guilty of, 48 counts in total, counts 1 to 25 on the indictment being sample rape counts, and counts 26 to 48 being sample counts of indecent assault.

9.       The indecent assault counts are comprised of 3 categories: counts 27 to 38 each covering a 1 year period and consisting of digital penetration of the vagina (count 26 covering a 6 month period in respect of the same offending); counts 39 to 44 each covering a 1 year period and consisting of penile penetration of the mouth; and counts 45 to 48 each covering a 1 year period and consisting of groping of the victim's breasts. Al counts were preferred on a sample basis.

10.   The victim was violated in one form or another consistently over a protracted period.

Personal Circumstances of the Respondent

11.    The respondent has no previous convictions or convictions following those the subject of the within appeal. He has not come to any negative attention with the prison authorities.

12.   The respondent was around 70 years of age at the time of sentence and has health difficulties requiring medication. He has a good work history, and has the support of other members of his family.

13.   At times in garda interview he cast aspersions against the victim. He does not accept the verdict of the jury.

Sentencing Remarks

14.   The sentencing judge summarised the evidence in the case, including the significant aggravating elements of the offending, the victim impact statement read in court, as well as the plea in mitigation.

15.   The plea in mitigation covered what counsel at trial termed to be an "unusual aspect" of the case, that being the fact that the respondent had provided personal and financial support to the victim on a number of occasions since the offending had ceased. The plea also covered the fact that the respondent has the support of the other members of his family, and counsel handed up several testimonials from those family members conveying their perspective. The sentencing judge, however, noted that these testimonials were a "double-edged sword" in light of the "corresponding and denigratory effect" that this support might have on the victim. Reliance was placed on his age and health issues.

16.   The judge nominated a headline sentence of 16 years for counts 1 to 25 on the indictment, being the rape counts. She noted specific aggravating factors as being the prolonged period of abuse, the enormous breach of trust, the huge age disparity, the early age at which the offending began, and the fact the offending occurred in the victim's home at the hands of a trusted family member.

17.   Turning to mitigation, the sentencing judge took account of all of the circumstances, and expressly nominated the following specific factors: the respondent's age, his health issues, his positive work history, and the supports of his family.

18.   The sentencing judge reduced the headline sentence from 16 to 13 years in light of the mitigation, suspending the final 18 months of that sentence for a period of 18 months, on condition to be of good behaviour, keep the peace, and to not approach the victim at any time after release. The sentence was backdated to the 9^th of February 2024, the day the respondent went into custody.

19.   The judge took counts 26 to 48 inclusive into consideration in imposing the above sentence.

Grounds of Application

20.   The Director nominates the following grounds for her application:

'1. The learned sentencing Judge erred in principle in fixing the headline sentence at a point on the spectrum which was inconsistent with the gravity of the offending.

2. The learned sentencing Judge erred in principle by applying insufficient weight to a number of important aggravating factors surrounding the commission of the offences including the fact that:

a) The offending was committed by a father on his daughter and so involved a profound breach of trust and duty;

b) The offending commenced when the victim was of an extremely young age and persisted almost to early adulthood; and

c) The rape offending was effectively ceaseless from the age of four onwards and was carried out in a manner which involved opportunistic care and focus and involved particular physical brutality.

3. The learned sentencing Judge erred in principle in the manner in which she structured the sentence imposed by applying undue weight to the mitigating factors present which resulted in her failing to adequately reflect the seriousness of the offending behaviour before her.

4. The learned sentencing judge erred in principle in circumstances where the sentence imposed failed to adequately reflect the principle of general deterrence.'

Submissions of the Director

21.   The Director submits that the sentencing Judge erred in fixing the headline sentence at the lower end of the upper band of severity, within the rubric of People (DPP) v FE [2021] 1 IR 217.

22.   The Director places reliance upon People (DPP) v WD [2008] 1 IR 308 and the 11 aggravating factors identified therein, arguing that on the facts of this case, 8 of those factors were made out that would place the case into the upper band of offending under FE.

23.   The Director specifically refers to the following 8 aggravating elements: the devastating familial, developmental, emotional and mental impacts on the victim caused by the offending; the egregious breach of trust between a parent and child; the significant age disparity; the extraordinary young age of the victim at the time the offending began; the consistent nature of the abuse; the exploitation of requests for things like pocket money by the victim as a form of leverage to commit sexual abuse; the extraordinary perversion present inherently in the rape and sexual abuse of one's own daughter, as well as specific perverse elements of the offending including abuse in the presence of family members; finally, the physical pain and injury caused.

24.   The Director also places reliance upon a number of comparator cases that have been decided following FE in submitting that this case should not have fallen in the lower end of the upper bracket of offending under FE.

25.   The Director relies on People (DPP) v JM [2022] IECA 144, where an 18 year sentence with a headline of life imprisonment was upheld by this court in respect of offences of rape by a father against his daughter. The Director concedes that there was an additional aggravating factor in that case, prior convictions in respect of abuse of nieces, which is not present here, but also notes there was further mitigation available in that case in the form of a guilty plea.

26.   The Director also relies upon People (DPP) v PMcL [2022] IECA 234, which also concerned sexual offences by a father against his daughter, however, in that case there was a late plea of guilty and apology available, with the offending beginning when the victim was slightly older. In that case, this court increased a 10 ½ year effective sentence with a 16 year headline to a 17 year effective sentence with a 22 year headline.

27.   The Director also submits that the sentencing judge erred in affording too much weight to the available mitigation on the facts of this case, and reducing the headline sentence from 16 years to 13 years, combined with a further suspension of 18 months.

28.   The Director says that the only mitigation of substance is the respondent's age and medical condition. It is said that while he has no previous convictions, any mitigation to be applied therefrom is substantially reduced given the campaign of sexual offending; ref. People (DPP) v PMcL.

29.   Whilst the Director contends that the respondents age and ill-health provide the only substantive mitigation available, she contrasts the facts of this case with those of People (DPP) v O'Brien [2015] IECA 1 in submitting that the respondent's medical condition and age does not rise to a level which would provide significant mitigation.

30.   The Director also submits that the principle of general deterrence should have been weighed in the sentencing process in light of the clandestine nature of the offences involved.

Submissions of the Respondent

31.   The respondent submits that the sentencing judge correctly placed the sentence in the highest category of offending under FE, did not err in nominating a 16 year headline sentence, correctly weighed the gravity of the offending and the aggravating factors present, and was within the margin of appreciation afforded to the sentencing judge.

32.   The respondent submits that a number of the aggravating factors identified in WD were not present here. The respondent and appellant are in agreement as to the applicable aggravating factors under WD, save for one factor, "the use of especial violence" which the respondent contends does not apply on the facts.

33.   The respondent seeks to distinguish a number of elements of Charleton J's description of the highest end of rape offences, noting that this case does not relate to multiple victims or obscene photographs.

34.   The respondent notes that the sentencing judge heard the facts, victim impact evidence, and plea in mitigation on the 15^th of April 2024, and delivered judgment on the 26^th of April. The respondent submits that the judgment was detailed and comprehensive and made reference to the aggravating factors.

35.   The respondent rejects the contention that the sentencing judge applied undue weight to the mitigating factors or failed to reflect the principles of general deterrence.

36.   The respondent places reliance upon a number of precedents in relation to the deference afforded to a sentencing judge in an undue leniency application: People (DPP) v de Paor and Zdanowski [2008] IECCA 137, People (DPP) v Clive Kavanagh [2020] IECA 13, People (DPP) v McGinty [2007] 1 IR 633, People (DPP) v McCormack [2000] 4 I.R. 356, People (DPP) v Harvey (CCA, 2010, Finnegan, Budd, O'Keefe JJ), and People (DPP) v Stronge [2011] IECCA 79.

Discussion

37.   The principles for determining undue leniency are well settled, commencing with People (DPP) v Byrne [1995] 1 ILRM 279. In People (DPP) v Stronge, McKechnie J. synopsised the principles relevant to applications pursuant to s. 2 of the 1993 Act.

38.   We commence by repeating that the onus is on the Director to establish that this sentence was unduly lenient so that the divergence between the sentence imposed and that which ought to have been imposed amounts to an error of principle. Only then will this Court justifiably intervene. The sentence imposed must constitute a substantial departure from what would be the appropriate sentence in the circumstances.  

39.   The Director contends that while the judge properly placed the notional sentence within the appropriate range, she erred in her identification of the actual notional sentence given the gravity of the offending conduct. There were many aggravating factors properly identified by the sentencing judge and there can be no doubt that the respondent's offending was of a most serious kind warranting the nomination of a headline sentence within the range of up to life imprisonment.

40.   The offending in this case took place over a protracted period commencing when the respondent's daughter was only 3 ½ years old. She was subjected to degrading and humiliating acts. At a later stage in the offending, she was required to sexually engage with the respondent in return for the ordinary needs of a child/teenager. This is a significant aggravating factor. The respondent clearly believed he had an entitlement to violate his daughter however he so chose. He groped her breasts as she developed, sometimes as she was moving around the house, these were not just sexual acts, but, in this Court's view, acts designed to humiliate her and to demonstrate his power over her. All the respondent's actions caused significant and long-lasting anguish to the victim, indeed she says in her impact statement that the respondent stole her childhood and controlled her, the person who ought to have protected her. Moreover, his sexual acts upon her caused her injury, pain and of course on an emotional level, significant harm.

41.   We are satisfied that there is an error identified and that pertains to the identification of the notional sentence, which led to an ultimate sentence which is a substantial departure from the norm.

42.   Consequently, we are persuaded there is an error in principle and so we will quash the sentence imposed and proceed to re-sentence as of today's date.

Re-Sentence

43.   In re-sentencing the respondent, we have considered the evidence adduced in the court below, the plea in mitigation, the testimonials and the respondent's current situation.

44.   Insofar as the notional headline sentence is concerned, when we look to the aggravating factors, we agree with the learned sentencing judge that these matters fall within the category of cases requiring up to life imprisonment. Where we diverge from the judge relates to the nomination of the notional headline sentence. In lieu of the notional headline sentence nominated of 16 years imprisonment, we consider the appropriate notional sentence to be that of 22 years imprisonment. 

45.   The respondent engaged in a prolonged campaign of rape and sexual assault, his conduct humiliated and degraded his victim, his cavalier attitude to the abuse was chilling, he caused her physical and emotional pain and suffering, the abuse of trust was egregious, the victim lost her childhood entirely and continues to suffer. She was only 3 ½ years old when the abuse commenced and the requirement to engage in sexual acts in return for ordinary childhood requests further elevates the gravity of the aggravating factor of a breach of trust. The sexual assault acts constituted varying types of activity including the penetration of her vagina with his fingers and toes, on occasion with other family members present but unaware of his actions, oral penetration and groping of her breasts serve to demonstrate his cavalier attitude to his conduct. Whilst there is a single victim in this case, the offending appears to have been relentless, and the accumulation of these factors warrants the nomination of 22 years imprisonment.

46.   We now look to the mitigating factors. The respondent is now aged 70 years, and he has certain health issues. We see those factors as constituting mitigation. The fact that he has no previous convictions is not a factor to which we give any weight in this case given the protracted abuse of his daughter, it is clear he was living what could be termed as a double life. Whilst it is so that he was a hardworking man, the fact that he provided personal and financial support to his family is again of no weight, this is naturally expected of a parent. We consider the family testimonials of no value. His doctor's report is only of weight insofar as it provides information as to his medical condition. He has no P19s and is an enhanced prisoner.

47.   The mitigating factors are therefore essentially twofold and in consideration thereof we reduce headline sentence to that of 19 years imprisonment on each of the rape counts, we take into consideration the sexual assault counts and we do not see a basis for a suspended element.

Decision

48.   In summary, we impose a sentence of 19 years imprisonment backdated to the 9^th February 2024.

Result:     Re-Sentence