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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v McGrath (Approved) [2025] IECA 101 (31 March 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA101.html
Cite as: [2025] IECA 101

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THE COURT OF APPEAL

[2025] IECA 101         

Court of Appeal Record No. 77/2024

Edwards J

McCarthy J

Kennedy J

 

BETWEEN/

 

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

 

RESPONDENT

-AND-

 

STEPHEN MCGRATH

 

APPELLANT

 

JUDGMENT of the Court delivered (ex tempore) on the 31st day of March 2025 by Mr

Justice Patrick McCarthy

 

1.       This is an appeal against a sentence imposed in Dublin Circuit Criminal Court on the 28th of June 2022. The appellant was indicted on thirteen counts for offences as set out in the schedule hereto. The appellant pleaded guilty to four counts: count no. 1 (sexual assault), counts nos. 2 and 4 (assault causing harm) and count no. 10 (production of an article capable of causing serious injury). The judge imposed a post-mitigation sentence of 4 years and 6 months' imprisonment on count no. 1, and a sentence of 3 years and 6 months' imprisonment on count no.2. It was ordered that the sentence imposed on the count no. 2 commence upon the lawful expiration of the sentence imposed on count no. 1—an effective sentence of 8 years' imprisonment for the offences. The balance of the counts on the indictment were marked as taken into consideration by the judge on imposing the sentence on count no. 2.

Factual background

2.       The offending in this matter occurred over a protracted period of time from the small hours of the morning into the afternoon of the 23rd of April 2021. One Garda Robert Whitty gave evidence that he attended an address in the Tallaght area with a colleague on that date where he met a woman, 'the victim' herein, who reported that she had been assaulted by two men. The victim identified a house in the Rathcoole area and a van in which she alleged the offending occurred to gardaí before she was admitted to hospital, and the gardaí began investigating the incident.

3.       The background to the incident was that, on the 19th of April 2021, the appellant contacted the victim by text message and offered to take her out (there was some suggestion that the victim was experiencing difficulties in a personal relationship). The pair then spent two days in each other's company before they met with another two individuals, referred to as 'SC' and 'MF' herein, on the 21st of April at a hotel in Kildare. A binge of alcohol and drugs occurred at the hotel and all four were subsequently asked to leave that premises. The group made its way to another address in the Naas area of Kildare; however, the journey to that address from the hotel was punctuated by moments of paranoia and tension and, when the group arrived at the Naas address, there was an allegation that cannabis and makeup had gone missing. MF subsequently parted ways with the group and left the Naas address.

4.       SC, the appellant and the victim subsequently travelled to a property in a rural location of the Rathcoole area. The property consisted of a main house and a separate self-contained unit referred to as a 'granny flat'. In the early hours of the morning on the 23rd of April 2021, an inquiry was raised regarding the location of a bag of drugs within the granny flat and both the appellant and SC accused the victim of theft. When the victim attempted to leave, SC grabbed her and threw her to the ground. The appellant began assaulting the victim by kicking her and stamping on her. The appellant then held the victim by her hair and punched her face. At one point the appellant said, "You love your hair, do you?" and pulled a clump of hair from the victim's head.

5.       The victim managed to escape through an open window and made her way toward the main house on the property and made it as far as the front door but was assaulted and lost consciousness. When she regained consciousness, she discovered that she was being dragged along the ground by her hair by SC and the appellant—who said that they were going to bring her up the mountains and bury her. The men tried to put the victim in the back of a van; however, the victim managed to resist this successfully. The victim was subsequently put in the footwell at the front passenger side of the van. SC handed the appellant a knife (described as a "red-handled multi-tool") and the appellant said, "I'm going to stick that in your head" to the victim. The appellant drove the van away from the property without SC. The victim began pleading with the appellant and repeatedly begged for her life, stating: "I have a child. Let me live." The appellant repeatedly punched, and at one point kicked, the victim while she lay in the footwell of the van and threw a number of items at her.

6.       Much of the journey of the van was captured by CCTV cameras. The van came to a stop on a number of occasions, during which the victim attempted to exit but was prevented from doing so by the appellant. She also made attempts to contact the emergency services and her sister by phone, but her phone was removed from her possession by the appellant. At one point during the journey, the appellant pulled down the victim's trousers and underwear and aggressively inserted his finger into her anus. The assault continued and only ceased when the appellant travelled to the address in the Tallaght area at which the victim resided at around 2 p.m. CCTV cameras captured footage of the victim in a distressed state. The footage showed the victim and the appellant walking toward the victim's apartment and a physical altercation which ensued between the appellant and the victim's boyfriend, referred to as 'AG' herein, which left AG with a cut on his face. The appellant then left the scene before the gardaí attended as described above (although CCTV footage showed that the appellant returned to the victim's address in Tallaght at around 5:45 p.m. armed with a wheel brace, but he was 'fended off' by AG and another male).

7.       Following his arrest for an offence contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 on the 1st of May 2021, the appellant was detained and interviewed by gardaí—during which he made partial admissions only.

Victim impact

8.       The victim was brought to hospital by ambulance on the 23rd of April 2021 and spent 5 days there. The trial judge had the benefit of the medical report of one Dr Aidan Grufferty. We have not been furnished with a copy of that report; however, it appears from the transcript that Dr Grufferty noted a number of injuries to the victim including: hematomas to both eye areas, a large hematoma to the left-side forehead, abrasions on her legs, knees, chest and breast area, extensive hair loss, bruising and a fractured rib with an underlying contusion to er lower-lobe lung area. The victim was further examined by a doctor at the Sexual Assault Treatment Unit ('SATU') at Tallaght Hospital on the 24th of April 2021. In addition to the injuries noted above, it was observed "an abrasion measuring 0.3 centimetres visually, was noted posteriorly, in the anal canal" which was not actively bleeding at that point. The trial judge also had the benefit of a number of photographs depicting the injuries inflicted upon the victim.

9.       The judge (as do we) had the benefit of a victim impact statement written by the victim. We cannot, due to its length, set out the statement in extenso. In the statement, the victim described how the incident occurred soon after the death of her stepfather, a bereavement which "broke" her. She stated that, despite the fact that she would not usually drink owing to pre-existing medical conditions, she decided to go out to relieve her sadness at the loss of her stepfather and made the mistake of trusting the appellant by going to a party with him. The victim described how the offending affected her in the following terms:

               "I will never get over what these men done to me, they took a part of me that day that will haunt me forever. Not only did they leave me with injury, broken ribs and internal organ damage, but the mental affects both to me and those close to me, I suffer with bad anxiety and depression, I was unrecognizable, I was left bald, I had to wear a wig for the last year. I don't trust men on the streets, I have not gone to any family partys or occasions since this happened to me. I am a hairdresser and I stopped doing hair as my confidence was so low. I still attend hospital appointments. I have nightmares, that's when I do sleep, which is not a lot since this happened. When my family seen me after the assault they cried, grown men cried when they saw me. I cried and I still cry."

          She further noted that she did not see her son for four weeks after the assault to shield him from seeing her in the state she was in after the assault.

Personal circumstances of the appellant

10.     At the date of sentencing, the appellant was 37 years of age and had two children. The appellant had a good work record and was involved in caring for his mother for a period. He had four previous convictions for offences including: dangerous driving, drunken driving, and possession of drugs. Garda Whitty accepted that, aside from these previous convictions, the appellant was "not on the garda radar" and that the offences appeared to be out of character for him. It was further accepted that the appellant had made some useful admissions and had cooperated with all garda requests after his arrest. The judge (as do we) had the benefit of letters testifying to positive aspects of the appellant's character written by his mother, aunt and brother.

Sentencing remarks

11.     The judge observed that the primary mitigating factor available to the appellant were his pleas of guilty which, the judge acknowledged, had spared the victim the trauma of coming to court and re-living what had occurred. The pleas of guilty, however, were entered as the jury was about to be sworn on the third day on which the trial had been listed and cannot be regarded as an early one. The judge further noted that the pleas were indicative of remorse on the part of the appellant for his offending behaviour. He recognised that the appellant had a good work history and a previous criminal record which he said was "very mild and modest" compared to the offences in this matter. Finally, the judge referred to the positive testimonials he had received regarding the appellant's character and accepted that the appellant had some "very good characteristics" which he considered in mitigation.

12.     In identifying the aggravating features of the appellant's offending behaviour, the judge stated as follows:

               "[the appellant] was involved in assaulting [the victim] in a very serious way.  He forcibly put her into a van or a vehicle.  He pulled her hair out.  He battered her to the head and the face.  He made certain utterances and threats towards her.  There was a knife involved.  And then he sexually assaulted her which, the injured party ... must've found grossly humiliating.  It seems that eventually the injured party ... was brought back to her apartment and there was some events that occurred post that, that gives [the appellant] no credit at all."

          The above quotation largely summarises the judge's view as to the aggravating features of the offending behaviour; however, it is clear that he also had regard to the harm done to, and the adverse effect of the offending on, the victim.

13.     The judge then turned to consider whether it was appropriate to impose consecutive sentences in respect of the offences in this matter. The judge stated, inter alia, that:

               "... I have open to me the power to sentence on a consecutive basis if I feel it's justifiable in this case.  And I must sentence on the basis of what they did.  And their level of culpability.  The level of culpability of their actions.  These were mature men, obviously, post a drink and drugs binge, but they behaved consciously in this way.  For what particular reason, it's hard to know.  But they did.  So, I consider what they did and the surrounding context of what they did to be very serious.  Particularly [the victim] must've been terrified during the entire of this ordeal which was over a prolonged period of time.  And the Court has to sentence on a basis that reflects the seriousness of their actions.  The Court must be proportionate, it goes without saying, and must balance the mitigation with the seriousness of the offences."

14.     In sentencing the appellant, the judge stated that his culpability was greater than that of SC because of the appellant's behaviour in the vehicle and stated that his behaviour toward the victim was "callous and cruel". The judge imposed sentence in the following terms: -

               "And in relation to the sexual assault, that is count No. 1, I'm going to impose upon him a term of imprisonment of four and a half years.  In relation to the assault causing harm on [the victim], I'm going to -- that's count No. 2 -- I'm going to impose upon him a term of three and a half years.  And they're to run consecutive with each other.  And I'm going to take all the remaining counts he's pleaded guilty into account in that case.  So, leaving him with a total sentence of eight years."

          The judge then backdated the sentence to the date the appellant went into custody.

Grounds of appeal

15.     The appellant relies upon the following grounds of appeal: -

1.       The Learned Trial Judge erred in law and/ or in principle in imposing a sentence which was excessive in the particular circumstances of the case.

2.       The Learned Trial Judge erred in law and/ or in principle in imposing a sentence that was disproportionate in all the circumstances and failed to have sufficient and/ or due regard to the principle of proportionality.

3.       The Learned Trial Judge erred in fact and/ or in law in failing to give sufficient weight to the mitigating factors in the case.

4.       The Learned Trial Judge erred in law and/ or in principle in failing to suspend part of the sentence.

5.       The Learned Trial Judge erred in law and/ or in principle in imposing a consecutive element.

16.     We deal with all grounds together below.

17.     At the hearing the matter, in truth, resolved itself into three points. The principal point relied upon is the proposition that the sequence of events was in substance one transaction and with this we agree. On that basis, it was submitted that there was an error in principle in the imposition of consecutive sentences. Of lesser significance were the propositions that the judge failed to at least articulate his address of the principle of totality having identified a cumulative figure of 8 years of imprisonment and in fact, at least by implication, that the cumulative sentence was disproportionate because of a failure to adequately apply that principle. Finally, it was submitted that the judge ought to have considered suspending a portion of the sentence both to encourage rehabilitation and as an alternative means of applying of the totality principle.

Discussion and analysis

18.     There is no doubt that the court can impose consecutive sentences in respect of a single transaction which discloses multiple offences. However, it has repeatedly been emphasised that such a jurisdiction must be exercised sparingly or, to put the matter another way, can only be justified in exceptional circumstances. The overarching principle in sentencing is that the sentence must be proportionate. By way of example, the application of the totality principle is a tool to ensure proportionality when consecutive sentences are otherwise properly imposed. We think that this is such an exceptional case that the judge was not in error in exercising his discretion to impose consecutive sentences. We think that this is so because thirteen offences, over a protracted period, were disclosed by the evidence and it was not simply a case where a short free-standing offence gave rise to a number of potential charges, these offences were taken into consideration when sentencing on count no. 2 thus radically changing the approach which was necessary. We think that these factors meant that if consecutive sentences had not been imposed the sentence would not have been proportionate in respect of this appellant's culpability for these crimes. We think that it would have offended against a basic principle. We think that even though the judge did not mention the question of totality, objectively speaking, the sentence was proportionate and the mere failure to articulate that the principle was being considered does not undermine the decision. There was no evidence which, in any meaningful sense, would have justified suspension of a part of what was otherwise a proportionate sentence and accordingly the question of suspension simply did not arise.

19.     We accordingly dismiss this appeal.

 

SCHEDULE

 

Count no. 1     Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37 of the Sex Offenders Act 2001.

Count no. 2     Assault causing harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 3     Assault causing harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 4     Assault causing harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 5     False imprisonment, contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 6     False imprisonment, contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 7     Threat to kill or cause serious harm, contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 8     Threat to kill or cause serious harm, contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 9     Production of an article capable of causing serious injury, contrary to section 11 of the Firearms and Offensive Weapons Act 1990.

Count no. 10  Production of an article capable of causing serious injury, contrary to section 11 of the Firearms and Offensive Weapons Act 1990.

Count no. 11  Assault, contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997.

Count no. 12  Unlawful possession of a controlled drug, contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count no. 13  Unlawful possession of a controlled drug, contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

 

 

 

 

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