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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v S. N. (Approved) [2025] IECA 119 (07 April 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA119.html
Cite as: [2025] IECA 119

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THE COURT OF APPEAL

Neutral Citation: [2025] IECA 119

Record Number: CCAOTO219/2023

Bill Number: CCDP0027/2020

McCarthy J.

Burns J.

MacGrath J.

 

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECOR OF PUBLIC PROSECUTOR)

RESPONDENT

 

-AND-

 

S. N.

APPELLANT

 

Ex tempore judgment of Mr Justice MacGrath delivered on the 7th April  2025

1.             This is the appellant's appeal against severity of sentence. On the 22nd February 2023 the appellant entered a guilty plea to one count of rape which occurred ten years earlier on the 11th May 2013. The appellant was two months past his majority at the time of offending. The victim was also 18 years old at the time. On the 17th July 2023, the sentencing  judge nominated a headline sentence of 10 years, placing the offending at the highest end of the ordinary category of offending as described by Charleton J in DPP v F.E  [2019] IESC 85, which attracts a sentence of between seven and 10 years. Two years were deducted for mitigation, reducing the post mitigation sentence to eight years and the sentencing judge thereafter suspended the final year of the sentence.

Background Facts

2.             The appellant and his victim worked in a fast-food restaurant in a town in the West of Ireland.  They had attended a party at a house in town on the evening of the 10th of May 2013. The offending conduct took place in the early hours of the 11th May 2013. It is contended by the appellant that as the offence related to a single incident in the upstairs bathroom of the house where a birthday party was taking place downstairs, the sentence imposed was too severe. It is conceded, nevertheless, that the offending is very serious and that an immediate and substantial term of imprisonment was to be expected.

3.             Although not particularised in the notice of appeal filed by the appellant himself, in written submissions the following grounds are advanced:

1.      That the sentencing judge erred in principle in imposing an excessive and disproportionate sentence.

2.      That the sentencing judge erred in principle in nominating the appropriate headline sentence at 10 years imprisonment.

3.      That the sentencing judge failed to have due regard for the age of the appellant at the time of the commission of the offence.

4.      That the sentencing judge erred in principle in "seeming to consider that there was an element of drugging" in the case and that the appellant was somehow responsible for or was complicit in this.

5.      That the sentencing judge erred in principle in determining the level of  mitigation which ought to have been afforded to the appellant, particularly with regard to delay in the matter proceeding before the court, his good conduct and character prior to the offence and since that time.

6.      That the sentencing judge failed to have due regard to mitigating factors including the plea of guilty, the appellant's family circumstances, his expression of remorse, his willingness to undergo rehabilitation and the conduct of the appellant in the decade since the offence was committed.             

Evidence at Sentencing Hearing

4.             Evidence of the offending was given by Det. Garda William Grant. Gardaí first became aware of the incident "in general terms" in March 2014. No formal action was taken at that time. A further report was made to Gardaí on the 16th August 2018. A statement was taken from the victim in October 2018. Papers were referred to the Director of Public Prosecution and ultimately the case was returned for trial on the 17th June 2020. Det. Garda Grant outlined that there was at least one previous trial listing before the plea of guilty on the 22nd February 2023.

5.             In her transition year, the victim had taken up part-time work at a fast food outlet where she came in contact with the appellant, who was a student at the time and also working part time there. Det. Garda Grant referred to the victim's statement of proposed evidence in which she outlined the circumstances of the offending. She indicated that she had always been under the impression that the appellant had not liked her. On the weekend of the 10th/11th of May 2013, her parents and siblings were due to be away from home. This was her first weekend alone at home. She agreed reluctantly to go to a party in the town. She felt that she would not know many people there. Having finished work at 6/7pm, she went home and got ready. She was taken to the party by a friend. She brought three cans of Bulmers to the party with her. The victim had consumed alcohol on previous occasions. She stated that she was given an opened can of Bulmers at the party. She also had two or three "jelly shots" which another person had made. This is a home-made product, made by adding some small amounts of spirit such vodka or gin into a jelly and allowing it to set. She then had a second can of Bulmers, halfway through which she began to feel disorientated. She described how her vision became blurred, that her hearing had become somewhat muffled, that she could not stand unaided and had to hold onto counter tops for support. She was sleepy during this time and remained in the kitchen area and had a vague memory of being sick or vomiting in a downstairs toilet. Two of her girlfriends held back her hair. It was at around this time that the appellant approached her.

6.             Det. Garda Grant said that, in her statement,  the victim had clearly felt that the appellant had made a beeline for her in the kitchen, as if he had been waiting for the right time to come over to her. She described that, straight away, he placed both of his hands on her waist and pulled her in towards him. She found the engagement very confusing and tried to push him away. The victim also stated that the appellant told her that she looked nice, an experience which she found shocking as he had previously ignored her and had not shown interest in her as a person. Further, she stated that she was not attracted to him.

7.             Det. Garda Grant further recounted the contents of the victim's statement in which she said that she kept pushing the appellant back. She turned her head in the other direction. Matters escalated quickly in that the appellant demanded that they go upstairs. The victim replied "no" and  asked "why". She told him that she didn't want to do this. But the appellant repeatedly said "just go upstairs and I'll be up in a minute". She recalled that his demeanour scared her. He seemed to be in an agitated and intimidating state. She went up and stood at the top of the stairs in what she characterises as a wobbly state. The appellant came up the stairs in what she remembers as being a jog like motion. It was still bright outside. She recalled him arriving at the top of the stairs and then speaking to another person who was sitting on a bed with his phone in his hands. The sentencing judge described the victim's further account of the offending as follows:

"She said that [the appellant] guided her to the bathroom, locked the door with a bolt behind them.  She said at that point she just wanted to sleep and he told her to lay on the floor which she did in order to sleep.  She remembers being woken by a slap to the face...".

8.             The appellant proceeded to rape the victim when she was in and out of consciousness. He then left. People who had attended the party had left to socialise in the town. When they returned two of her friends came to her. She felt particularly panicked because she could not remember what had happened during the night, particularly as she only had a can and a half of Bulmers and a maximum of three jelly shots. She described her feelings at the time were not such that she ever had from alcohol either before or since and that it was her belief that she had been drugged. The victim also believed that when she found her phone and checked it, a text had been sent to her mother to assure her that everything was okay. She did not believe that she had sent that text herself. Ultimately, she figured out that it was a friend who had sent the text the previous evening. Then, as soon as she saw the appellant, her memory was jogged that something wrong had been done to her. She challenged him to as to whether they had had sex. He denied this, telling her to shut up. She was taken home by some other people. When showering the following morning, she noticed bruises on her breasts and in the area of her thighs. When her younger sister was due to take up employment in the same fast-food outlet in March 2014, the victim had a breakdown. She felt that she could not let her younger sister to work there. It was then that the victim informed her mother.

9.             It is clear from her victim impact statement that very significant harm was occasioned to the victim. She required psychological intervention and she stated:

"I fell into a deeper depression and suffered with anxiety, PTSD, panic attacks and suicidal tendencies and thoughts as a result of the rape.  And was put on medication for this, all of which I still take today... I have been to the Rape Crisis Centres...A centre for victims of sexual abuse... where I live now, along with numerous psychologists. There hasn't been a single day I haven't thought about the rape.  And it's a heavy load to carry.  The rape was not just physical, but mentally I was violated too.  The physical pain may have disappeared, but my mind and mental health have been shattered, and I don't think they can ever be one hundred per cent repaired."

10.         In her sentencing remarks, the sentencing judge described the appellant's offending as a cold, predatory and premeditated rape, and that the victim was targeted when she was in an entirely and obviously vulnerable condition. She had been isolated by being directed into the bathroom and the door being locked.

11.         The sentencing judge, having nominated a headline sentence of 10 years, took into account the following mitigating factors:

1.      The contents of a forensic psychological report which outlined the appellant's family history, his father's suicide in 2015, his positive work record and stable relationship with no dependants and that he did not have addiction or mental health issues.

2.      That he is at the low risk of reoffending.

3.      He has no previous or subsequent convictions and had not come to the attention of the Gardai in the intervening period of 10 years.

4.      That he had been cooperative with the investigation generally, although he denied the offence at interview. 

5.      His plea of guilty, which the sentencing judge described as being the most significant mitigating factor. She remarked as follows: -

"This plea, although not an early plea, does mean that the complainant does not have to give evidence in a full jury trial and also affords her some acknowledgment of the harm caused and his apology, albeit in the context of denying any memory of the event. This plea is of significant value and entitles the offender to a discount on his sentence. The court has taken all these factors into consideration in order to determine a just and a proportionate sentence in this case".

12.         Considering the above factors, the appellant's age, that the appellant had a long life ahead of him and will have to reintegrate into society on his release, the sentencing judge imposed a term of imprisonment of eight years with one year suspended on certain conditions.

Summary of Submissions

13.         The appellant submits that the trial judge fell into error in imposing a sentence which was disproportionate, excessive and out of kilter with sentencing norms for similar types of offences. It is also submitted that insufficient regard was had for mitigating factors, including his plea of guilty and his age. The essence of the appellant's submission is that while the headline sentence was placed at the highest level of the "ordinary" category of sentencing bands as discussed in FE, the final sentence imposed was excessive.

14.         It is submitted  that the final sentence was arrived at without proper consideration of the offending conduct, in particular that the appellant was just two months into his majority at the time of the offence and emphasis is placed on his level of maturity at the time and dicta in decisions such as DPP v. TD [2021] IECA 289 in which reference was made to dicta in R v. Balogun [2018] EWCA 2933 that an appellant who has just achieved adulthood at the time of offending is not invested overnight with all the understanding and self-control of a mature adult. In this context, counsel points to the psychological report of Dr Bogue in support of the contention that there is a paucity or deficit of maturity on the appellant's part. Dr Bogue commented "from his vocabulary and verbal comprehension, I estimated his intellectual functioning to lie within the average to low average range". He also expressed the view that the appellant was a rather "immature individual and is engaging in some level of simple denial as a means of dealing with past behaviour which causes him shame and self-loathing". But it must also be recorded here that the appellant stated to Dr Bogue that "with the level of alcohol we both had, she was not in a position to consent" and that "he fully accepted that [the victim] was unable to give consent".

15.          It may nevertheless be said that counsel for the appellant's greatest criticism of the structure of the sentence, as articulated at the hearing of the appeal, was that the sentencing judge's assessment of the level of suspension was too low and that she could have gone further in terms of suspension. With regard to the timing of the plea, counsel submitted that the investigation and preliminary trial dates occurred during the Covid pandemic and there was a requirement for disclosure (in December 2021) and the obtaining of counselling notes (shortly before the second trial date when the plea was entered) and time was necessary for engagement with counsel before a plea could be entered. While it is accepted that the plea was not an early one, it is also submitted that it was not tardy.

16.         The respondent submits that once it is conceded, as it is, that the headline sentence fell for consideration within the 7–10-year category, then a headline sentence of 10 years' imprisonment was within the scope of the proper exercise of judicial discretion and no error of principle arises. The respondent also accepts that if this were a case where dates were unclear so that offending spanned periods before and after the accused's 18th birthday, he would be entitled to be sentenced as if a juvenile.  However, this is not such a case.  The appellant was 18 and no longer a minor in law.  Whilst the psychological report refers to the appellant as being immature, it does not appear that this relates to his difficulty in appreciating right from wrong.  Instead, it seems to refer to his denial of his own bad behaviour. The respondent submits that the appellant seeks to rely on inconsistent factors to reduce his culpability, namely his deficit in maturity and his memory failure. The respondent further submits that the timing of the plea of guilty was also relevant to the degree of mitigation which the sentencing court afforded, and that while the appellant was entitled to credit for the plea and the remorse shown, it is submitted that genuine remorse, in the sense of owning up to responsibility, has to be manifested by actions and an offender is responsible for the manner in which he chooses to meet the case.  It is submitted that it is evident from the conduct of the appellant and the contents of the probation report, remorse and the responsibility accepted by him for the offending only followed the plea of guilty. It is also submitted that the timing of this plea was not at an early stage, but rather was at the 11th hour and that this is a matter which must be taken into consideration, particularly in light of the more recent decision of the Supreme Court in DPP v. Faulkner [2024] IESC 16. Further, disclosure was not referred to as a reason for delay in advancing the plea at the sentencing hearing, but on the basis of the appellant's own submissions some 14 months before the guilty plea was entered. Reliance is also placed on s. 29 of the Criminal Justice Act 1999, which obliges the sentencing court to take into account the stage in the proceedings at which an accused indicated an intention to plead guilty, and the circumstances in which this indication was given. It is, nevertheless, accepted that while a late plea will have less value, nevertheless a plea of guilty will always have value.  The respondent also accepts that the appellant was entitled to credit for having been a productive member of society who had not come to any attention in the 10 year period since the offending behaviour.  Nevertheless, it is submitted by the respondent that the reduction afforded by the learned sentencing judge adequately reflected the timing of the plea, the appellant's remorse and the other mitigating factors advanced, and that the final sentence imposed is not such as to give rise to an error in principle in sentencing. 

 

Discussion and Analysis

17.         This Court has a defined and restricted role on appeal. The fact that the Court or members thereof would have imposed a somewhat lower, or indeed a somewhat higher, sentence is not the test. The Court has to be satisfied that the trial judge has erred in principle in the assessment of the sentence imposed in that it falls outside the range of discretion available to her, such that it offends principles of proportionality.

18.         There is really no contest but that the nomination of a headline sentence within the range of  7 to 10 years, as advanced by the respondent at the sentencing hearing, is appropriate in the circumstances. Applying the analysis in DPP v. F.E, the gravity of offending by the appellant falls to be considered as attracting a headline sentence of imprisonment of between 7 and 10 years. The trial judge determined that the headline sentence was at the highest end of this range and, while on the hearing of this appeal, the objection outlined in written submissions to the nomination of the headline sentence at 10 years was to an extent softened, if not resiled from, we are satisfied that, given the gravity of the offending measured by the culpability of the accused and the harm occasioned to his victim, the nomination of the headline sentence at 10 years was within the sentencing judge's margin of appreciation and discretion and was appropriate. The appellant's culpability was very high. The victim was forcibly raped and her intoxicated condition was taken advantage of. She was effectively isolated in an upstairs room where the offending took place and she suffered bruising to her body. Her victim impact statement is testament to the great harm which has been occasioned to her and which she continues to experience and will experience into the future. In the circumstances, no error of principle has been identified in respect of the headline sentence.

19.         With regard to mitigation, the mitigating factors in this case were the plea of guilty, the remorse shown thereby and as expressed at sentencing, the age of the offender at the time of the offending and his age at the time of sentencing, the lack of previous convictions and the life lived by him in society between the time of the offending and the time of sentencing. While it is suggested that the trial judge, in the assessment of mitigation, did not have sufficient regard for the age of the appellant, it is clear that she was aware and recorded in her ruling that both the accused and the injured party were 18 years old at the time of the offending. The trial judge was also aware of and, we are satisfied,  took into consideration the contents of the psychologist's report in her ruling. In that report it was estimated by the author from the appellant's vocabulary and his verbal comprehension that his intellectual functioning lay within the average to low average range. She took into account his family background,  that he has been assessed as a low risk of reoffending and has not come to the attention of An Garda Siochana since. The sentencing judge described the plea of guilty as the most significant mitigating factor and acknowledged that although not an early plea, it meant that the complainant did not have to give evidence in a full jury trial and afforded the victim some acknowledgement of the harm caused. She also acknowledged what she described the apology albeit in the context of denying any memory of the event.

20.         The level of discount to be afforded a plea of guilty was recently discussed by Charleton J in DPP v. Faulkner, where, at paragraphs  44 and 45 he observed as follows:

"It is good sense that both timing and circumstance inform the degree of discount to a sentence which a plea of guilty, or firm indication, deserves. Hence, there are authorities that signing a plea of guilty while an indictable offence is being processed in the District Court may deserve up to a one-third reduction in the headline sentence; The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v O'Callaghan [2020] IECA 172. Nonetheless, every sentence should meet the gravity of the offending and the principle of proportionality prevails; The People (DPP) v Stubbins [2021] IECA 229. The England & Wales guidelines rule out any analysis by the sentencing judge of the strength of the evidence against an accused. It surely makes sense, however, since s 29 of the 1999 Act in this jurisdiction references circumstances that, as in the case of the offenders in this case, being caught red-handed in the action of burglarising the home of elderly people, somewhat diminishes the mitigation effect of an early indication of a plea of guilty; The People (DPP) v Kenny [2011] IECCA 16.

Circumstances will vary. Definitive indications within an area where the law is being applied sensibly is based on two simple premises, those of timing and circumstance. To those fundamentals will often be added complication. Experience demonstrates that perhaps one-third discount may apply where there is an early indication, and the circumstances are such as to enable a real choice on the part of the offender. Later pleas of guilty, perhaps when the foreign witness is demonstrated to have travelled from abroad to take part in the trial, or perhaps after a victim has given evidence, will be deserving of a lesser mitigation; The People (DPP) v McDonnell [2022] IECA 200. No clear or hard rules are either discernible or necessary. The pattern seems to indicate a variable, based on timing and circumstance, from a potential 33% to perhaps as low as 10%; The People (DPP) v Molloy [2016] IECA 239, The People (DPP) v Whelan [2018] IECA 142, The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v TD [2021] IECA 289. While pursuant to the 1999 Act, a plea of guilty does not nullify the authority of the sentencing judge to impose a maximum sentence, ordinarily a plea of guilty will have some value, in the context of the heavy burden of proof born by the prosecution and the need to marshal perhaps reluctant or worried witness and to establish accurate testimony; The People (DPP) v Howlin [2022] IECA 150."

21.         While counsel for the appellant has addressed us in relation to the timing of the plea, in particular in the context of disclosure and other factors, in truth, this was a late plea of guilty and while it must be afforded due weight in determining the level of mitigation, we are not satisfied that, when the other factors are considered, such as the absence of previous convictions, his family background, the life lived in the interim by the appellant, his age at the time of the offending and his age now that, in reducing the headline sentence by two years, an error of principle in has been demonstrated. Again, even if this court, or individual members thereof might have afforded somewhat greater (or perhaps somewhat less) mitigation, that is not the test.  We are satisfied that the level of mitigation which was assessed by the trial judge fell within her discretion and the margin of appreciation which this Court must afford to the exercise of that discretion.

22.         This then brings us to the issue of the suspension of the sentence or portion thereof. An appellate court must be slow to intervene with the wide discretion which a sentencing judge enjoys in determining whether, and to what extent, a sentence or portion thereof ought to be suspended. Here, the sentencing judge suspended the final year of the sentence on conditions. She enjoyed a wide margin of discretion when so doing. We are not satisfied that any error in principle has been demonstrated on the part of the sentencing judge in the exercise of that discretion or in her consideration and assessment of the suspension of portion of that sentence.

23.         As Charleton J noted in Faulkner, "... every sentence should meet the gravity of the offending and the principle of proportionality prevails". The appellant's offending was serious. The culpability of the accused was high and the harm occasioned to his victim was great and has endured. When the final and structured sentence imposed by the sentencing judge is viewed in a global way, we are not satisfied that it has been demonstrated that the sentence imposed offends the principle of proportionality having regard to the nature and gravity of the offending and the personal circumstances of the appellant, or that it is such as to warrant intervention by this Court.

24.         In those circumstances we must dismiss the appeal.


Result:     Dismiss

 

 

 

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