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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Hussain [2015] IECA 22 (16 February 2015) URL: http://www.bailii.org/ie/cases/IECA/2015/CA22.html Cite as: [2015] IECA 22 |
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Judgment
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THE COURT OF APPEAL [2014 No. 108 CCA] Finlay Geoghegan J. Irvine J. Hogan J. BETWEEN/ THE PEOPLE (AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS) Respondent AND
MUHAMMAD HUSSAIN Appellant JUDGMENT of the Court delivered on the 16th day of February 2015 by Finlay Geoghegan J. 1. On the 28th March, 2014, following a ten day jury trial, the appellant, Muhammad Hussain, was convicted before the Circuit Court of the offence with which he had been charged on Bill No. CE/24201 namely:
The offence of which the appellant was convicted took place on the 22nd July, 2011. 3. At the sentencing hearing evidence was adduced by the prosecution of the relevant facts from a Detective Sergeant. In addition the trial judge was given a short note of sentences handed down in cases involving “other types of offence of a similar nature”. The court will return to the oral submissions accompanying them by counsel for the prosecution. Written testimonials were submitted on behalf of the appellant and submissions made. This Court has the full transcript of the sentencing hearing on the 7th April, 2014. 4. On the 11th April, 2014. The trial judge imposed a four year custodial sentence taking into account thirteen weeks which had been served in custody. The Court also has the transcript of the sentencing decision. 5. The appellant appeals against the severity of sentence. The court has had the benefit of written submissions submitted on behalf of the appellant and respondent and oral submissions made. 6. The court was informed that this was the first prosecution of this kind in the State. Given the novelty and intrinsic importance of the issues raised by this appeal, this Court reserved judgment on that appeal and this is now the judgment of the Court. Section 3(2A) of the Child Trafficking and Pornography Act 1998 “(2A) Any person who within the State -
(b) does so for the purpose of doing anything that would constitute sexual exploitation of the child,
Section 3(5) of the 1998 Act (as inserted by s. 3(b) of the Criminal Law (Human Trafficking) Act 2008) provides: “(5) In this section - ‘child’ means a person under the age of 18 years; ‘sexual exploitation’ means, in relation to a child - (b) the prostitution of the child or the use of the child for the production of child pornography, (c) the commission of an offence specified in the schedule to the Sex Offenders Act 2001 against the child; causing another person to commit such an offence against the child; or inviting, inducing or coercing the child to commit such an offence against another person; (d) inviting, inducing or coercing the child to engage in or participate in any sexual, indecent or obscene act, or (e) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act for the purpose of corrupting or depraving the child.” The evidence before the Circuit Court for Sentence 9. The accepted evidence is that the appellant met the intended victim (whom we shall describe as “Ms. F”) in the early hours of the 25th May, 2011, in a provincial city. Ms. F was born on the 3rd August 1997 so that at that point she was some two and half months short of her fourteenth birthday. At the time Ms. F was residing in institutional care at a location perhaps some 20kms or distant from the city in question. While she lived in an institutional setting, Ms. F did, however, have frequent contact with her mother. 10. On the evening in question Ms. F and her friend (whom we shall describe as “Ms. H”) had left the residence and got a taxi into the city. Ms. F and Ms. H had spent the evening together in the company of another person, but by the time they met the appellant they were walking along a road on their own. The appellant was travelling in a car with another (male) friend and he stopped at some traffic lights and engaged in conversation with the two girls. It appears that either the appellant or his friend enquired of the two girls as to whether they were prostitutes. At all events the two girls struck up a conversation and they got into the car. Ms. F subsequently explained that the only reason that she got into the car was because a Garda patrol car was coming and she did not want to be caught and taken back to her residence. It was accepted that on that evening both Ms. F and Ms. H told the appellant and his companion that they were nineteen years. 11. Having got into the car the four of them spent the next part of the evening or the early hours of the morning together. It appears that Ms. F was in the front of the car with the appellant and Ms. H was in the back seat with the appellant’s male companion. At the end of the evening the appellant gave his telephone number to Ms. H and Ms. H also gave him a telephone number. Ms. F did not have her mobile telephone because her mother had confiscated it. 12. On the following evening Ms. F used a computer to send a text message to the appellant’s mobile telephone number in which she essentially asked him to meet the two girls again in the village just beside the residence. While the appellant may have travelled that evening, he did not manage to contact Ms. F as she did not have her telephone with her. On the day after that again, the appellant telephoned Ms. F’s number. On this occasion he spoke to her mother who had possession of her daughter’s telephone. When Ms. F’s mother answered the telephone, a brief conversation took place in which she explained that Ms. F did not have her telephone anymore and that the caller could not speak to her. 13. The appellant then subsequently sent a text to Ms. F’s number asking if it was Ms. H. who had just answered the telephone. At this point Ms. F’s mother became concerned, because Ms. H was a new resident at the institution and she accordingly sent a text to the calling number asking that person (i.e., the appellant) to call. Added to her concerns was the fact that Ms. F had absconded that evening and was missing at the time. The appellant then rang again and Ms. F’s mother explained that Ms. F was only thirteen and that she had just gone missing along with her friend, Ms. H. The appellant said that he had only met her the previous night that he did not know where she was and, having learnt of her true age, he then asked no further contact be made. He sent a further text message to the telephone indicating that he did not know where the girls were. It appears shortly afterwards that Ms. F’s older sister, Ms. O, called the appellant’s number and in that conversation she reiterated that Ms. F was only thirteen years old. 14. There was no further contact until the 17th July, 2011. On that occasion Ms. F was visiting her mother and she had taken back possession of her mobile telephone, although her mother was not aware of that fact. When in possession of it, she sent a text to the appellant asking him to make contact. There then followed an exchange of texts and telephone calls. The appellant called Ms. F a total of five times, but one of these conversations was very brief lasting a matter of seconds. There were, it seems, two separate conversations that evening and the appellant reproached Ms. F. for not telling him that she was thirteen when they first met. At the end of the conversation they nevertheless departed on good terms. Ms. F disclosed to her mother that she (Ms. F) had her mobile telephone. Ms. F’s mother then took possession of her daughter’s telephone. She then discovered that there had been contact between Ms. F and the caller whom she now knows to be the appellant. 15. On the 20th July 2011, there were two calls from the appellant to Ms. F’s number which her mother answered. During these calls the mother pretended to be Ms. F and conversed with the appellant as if she were her daughter. In the course of these conversations there was a discussion about meeting and arrangements were made to meet up together. On the 22nd July, Ms. F was in company of her mother and a telephone call was received from the appellant which Ms. F’s mother recorded using her own mobile telephone. This recording was played to the jury and during the course of it, it became clear that the appellant wanted to meet Ms. F and that he was offering to bring her items including alcohol and credit for her mobile telephone. In that telephone call he admitted he was aware of her age. 16. While it appears that there was some discussion about sex and sexual matters in that telephone call, the appellant did not commit himself to anything. The appellant did agree to meet Ms. F that evening and the Gardaí were then contacted by Ms. F and her mother. By this stage the Gardaí had received Ms. F’s mobile phone and could see the level of contact from the appellant. The Gardaí then arranged to be in the general vicinity of the village to which the appellant was scheduled to travel. 17. The appellant then made two calls immediately prior to arriving at the village to Ms. F’s number, but both of these were answered by a female Garda who pretended to be Ms. F. The appellant arrived in his car at the village at about 10.30pm and was then intercepted by Gardaí. The appellant was arrested and brought to a local Garda station. During the course of the interviews he gave an account of having met Ms. F and his ongoing communication with her. He agreed that he wished to meet her in the expectation of some degree of sexual acts being performed. He denied that, by reason of his religious beliefs and the age of Ms. F, he had ever intended to have full sexual intercourse with Ms. F. He nevertheless stated that he had hoped to engage in some form of oral sex or some form of masturbation. 18. The appellant was charged with the offence already set out and pleaded not guilty. 19. The appellant was born in March 1982, so that at the time of the events in question he was aged 29. His only prior convictions in the State arose from one traffic incident in 2010 for which he received a fine and no custodial penalty. Submissions at Sentence Hearing 21. The second part of the submissions related to where, in terms of its gravity, the offence created by subs. (2A) of s. 3 of the Child Trafficking and Pornography Act 1998 (as inserted by s. 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007) lay when considered in the context of the other offences created by s. 3 of the 1998 Act. Counsel for the Director submitted:-
Sentence imposed by the Circuit Court
I am not in a position to give any credit to the accused due to the manner in which the matter has proceeded. I am told that the accused is willing to offer compensation, which, in my opinion, is not appropriate in the circumstances of this case. He has offered to leave the jurisdiction and return to Pakistan, which, again, I do not think is just in the circumstances. His previous conviction which arises out of road traffic incidents bear no relevance to this offence . . . against this I have to take into account the following mitigating factors: the effect of incarceration would have on the accused as a non-national, however, he has been living here since 2003, he is an educated man, articulate and he has fluent English. His co-operation to some extent with the Gardaí and made certain admissions. He is somewhat remorseful. . . . He has not come to the adverse attention of the Gardai since and he has met his bail conditions. I also take into his account his age, his previous character, his work history. Also the fact that he was the sole provider for his family in Pakistan. Prior to being charged with this offence, he was financially supporting them and this sentence will undoubtedly produce certain hardship in this regard. In all the circumstances I am imposing a four year custodial sentence.” 26. Multiple grounds of appeal were advanced on behalf of the appellant. However these were helpfully grouped and insofar as pursued at the hearing may be summarised as follows:
2. The sentence imposed was excessive and disproportionate. It was submitted that the trial judge erred in principle in her approach and in determining that the gravity of the offence fell within the middle range to which a sentence of six to eight years applied before taking into account mitigating factors. 3. It was also submitted that the trial judge failed to have proper regard to a number of the mitigating factors put forward. Two in particular were advanced which fall for separate consideration: a. that the trial judge erred in principle in having regard to the manner in which the defence of the trial was conducted on the appellant’s behalf; and b. the trial judge erred in principle in considering that compensation or an offer of compensation was not appropriate in the circumstances of this case. 27. The trial judge had sought assistance from counsel for the Director in accordance with the decision of the Court of Criminal Appeal (Clarke, Moriarty and McCarthy JJ) delivered by Clarke J. in (The People (Director of Public Prosecutions) v. Z. [2014] IECCA 13. The judgment in the Z. case was one of three judgments of the Court of Criminal Appeal delivered by Clarke J. on the 18th March, 2014. The other two were The People (Director of Public Prosecutions) v. Kieran Ryan [2014] ICCA 11 (Clarke, McCarthy and Sheehan JJ) and The People (Director of Public Prosecutions) v. Adam Fitzgibbon [2014] IECCA 12 (Clarke, Birmingham and Sheehan JJ). In the case of Z. the appeal was dismissed and there is no further judgment. However in the case of both Ryan and Fitzgibbon the appeals were allowed on the 18th March, there was a further sentence hearing in each, during which submissions were made on questions of principle arising from the Z judgment and further judgments were delivered in Ryan and Fitzgibbon by the Court of Criminal Appeal per Clarke J. on the 17th July, 2014, [2014] IECCA 24 and [2014] IECCA 25. 28. At the time of sentencing the appellant herein in April 2014, the trial judge and counsel did not have the benefit of the clarification given by the Court of Criminal Appeal in its judgment of the 17th July, 2014, in Fitzgibbon in relation to what it said in Z in relation to the guidance or assistance appropriate to be given by the prosecution at a sentence hearing. This Court has had the benefit of the clarification in the July 2014 judgment in Fitzgibbon to what was said in Z and with which it respectively agrees. It is necessary to consider in some detail these judgments. 29. In Z the Court of Criminal Appeal firstly expressed approval of an exchange which had taken place at the sentence hearing between counsel for the Director and the trial judge. The accused had pleaded guilty at a late stage to fourteen sample counts of rape and child cruelty against four of his daughters. On the day prior to his plea he had pleaded not guilty to 271 counts of rape and cruelty. The judgment records that counsel for the Director had submitted at the sentence hearing that the case was “on its facts, at the top end of the range”. The trial judge then sought further assistance from counsel for the Director in relation to the actual range of sentences which might be considered appropriate for a case of this type being one at the top end of the range. Having taken instruction, counsel submitted that the top end of the range, even in cases where there had been a plea of guilty permitted a very lengthy determinative sentence or a life sentence. 30. The Court of Criminal Appeal expressed approval of this exchange. It is important to note that this was a double exchange; firstly as to where the offence lay on what was referred to as the “range” and is sometimes referred to as “the spectrum of severity” or “spectrum of seriousness” and secondly as to either the actual sentence or range of sentences which might be appropriate. The novelty in the Z judgment appears to primarily relate to approval of the latter submission on the sentence. 31. In its judgment, the Court of Criminal Appeal in dealing with the historical position of the prosecution at a sentence hearing at para. 2.3 stated:-
2.5 In that context it is also important to note that there have been developments which ought assist, at least in many types of cases, the prosecution in being able to place such guidance before a sentencing judge. First, this Court has endeavoured, in a number of areas, and in appropriate cases, to conduct an analysis of the case law in relation to sentences for particular types of offences and give some general guidance as to the type of sentences which might be appropriate for offences with a particular level of seriousness along the spectrum. An example can be seen in Director of Public Prosecutions v. Carl Loving [2006] 3 IR 355, which sets out a detailed structure in respect of the factors to be taken into account when sentencing for child pornography offences. These factors were recently summarised in Director of Public Prosecutions v. Brian O’Byrne (Unreported, Court of Criminal Appeal, 17th December 2013) (see also Director of Public Prosecutions v. Derrick Stronge [2011] IECCA 79 in relation to the offence of dangerous driving causing death and Director of Public Prosecutions v. Brian Wall [2011] IECCA 45 in relation to undue leniency applications in respect of sentences imposed for offences under s. 15A of the Misuse of Drugs Act 1977). There is no reason why the attention of a sentencing judge should not be drawn to such decisions and submissions made as to where, in the light of the analysis by this Court, the offence in question is said to lie along a spectrum of severity. In many of the cases this Court had endeavoured, as it will do in this case, to identify the principal factors which will ordinarily influence a decision as to where along the spectrum of seriousness of the offence concerned a particular offence might lie. In some cases, this Court may endeavour to provide further guidance as to how such factors may convert into actual sentences. For example, in a judgment delivered today in Director of Public Prosecutions v. Ryan, a formation of this Court (differently constituted in part) sought to give such guidance in relation to sentencing for certain firearms offences. Likewise in a further judgment delivered today in Director of Public Prosecutions v. Fitzgibbon similar guidance is given in respect of assault causing serious harm. 2.6 In addition, there is increasingly information available through the ISIS (Irish Sentencing Information System) project, which provides details as to the range of sentences which are typically imposed by sentencing judges for particular types of offences.” 34. The Court of Criminal Appeal in Z in summarising its approach at the commencement of para. 2.7 stated:
36. In July 2014, in Fitzgibbon (No.2) the Court of Criminal Appeal again per Clarke J. (with Birmingham and Sheehan JJ.) returned to consider the obligation of the prosecution in giving assistance at sentencing hearings. It appears from that judgment that counsel for the Director in the case had raised some practical difficulties in relation to the implementation of certain aspects of what had been said by the Court of Criminal Appeal in Z. In Fitzgibbon (No.2) the Court of Criminal Appeal at para. 2.2 identified amongst the matters to be considered by it:-
(b) the question of the role of counsel for the D.P.P. in sentencing hearings, involving offences in respect of which no guidance in accordance with (a) is available, was also touched on in the written submission. (c) . . .” “29. The practice countenanced by MacNeil-Brown assumes that the prosecution's proffering a statement of the bounds of the available range of sentences will assist the sentencing judge to come to a fair and proper result. That assumption depends upon the prosecution determining the supposed range dispassionately. It depends upon the prosecution acting not only fairly (as it must) but in the role which Buchanan JA rightly described as that of "a surrogate judge". That is not the role of the prosecution.
… 38. If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.” 38. The Court of Criminal Appeal then at para. 3.4 sought to explain further what the Court of Criminal Appeal (in part a different constitution) had said in Z in the following terms:- “3.4 In the context of those submissions it is, in the Court's view, important that there be clarity about what this Court said in Z. It is clear that the question of sentencing is purely a judicial matter. It is not for any outside party to give guidance to a sentencing judge as to what the sentence in a particular case should be. But there is a very real difference between guidance, on the one hand, and assistance, on the other. What this Court suggested in Z was that counsel for the D.P.P. should be of assistance in drawing to the attention of the Court, any relevant materials which, it might be suggested, the Court should take into account in imposing sentence. As noted at para. 38 of the decision of the High Court of Australia in Barbaro, the parties are entitled to make submissions about facts, ‘the relevant sentencing principles and comparable sentences’. I do not see anything inconsistent between that passage and what this Court said in Z. It is not for the D.P.P. to suggest that a particular range of sentences is appropriate as such. Rather, it is for the D.P.P. to bring to the attention of a sentencing judge any guidance on sentence which has been given either by this Court or from other relevant sources (an issue to which the Court will return) and to make submissions as to where, in the light of that guidance, the case in question falls.
3.6 Finally, before going on to deal with the three specific issues identified earlier, it is necessary to touch on a point made by counsel for the D.P.P. in the course of oral argument. Based on a suggestion that an equal burden should lie on the prosecution and the defence, counsel made the argument that the obligation on prosecuting counsel should not extend beyond the obligation which rests on the defence. The Court does not, however, see that there is any reason why a sentencing judge cannot equally ask defence counsel for submissions as to where the defence submits the offence in question lies on any spectrum of seriousness identified in the jurisprudence of this Court. In particular if defence counsel wishes to argue that either the guidance to which the prosecution has drawn attention is not fully relevant or correct or that the submissions of the prosecution as to where the offence in question lies on any spectrum identified in such guidance is incorrect, then it is for the defence to make its submissions on those issues as part of the sentencing process.”
4.2 A sentencing judge is not, of course, bound by any such analysis. However, it seems likely that, at least in many cases, a sentencing judge will obtain assistance from having such information, if it exists, drawn to his or her attention. Likewise, it is important to note that an important factor behind the views expressed by this Court in Z is a desire, while recognising the significant range of different factors which may be relevant to the sentencing process in any individual case, to bring about the maximum level of consistency in sentencing which is compatible with giving proper weight to such individual factors. Bringing to the attention of the sentencing judge any reputable analysis of the sentences which are typically imposed in respect of a relevant offence can only be of assistance in bringing about such consistency. For those reasons it is the Court's view that the obligation on prosecuting counsel extends beyond bringing the sentencing judge's attention to guidance from this Court, but extends also to any reputable analysis of the sentences typically imposed by sentencing judges for the offence in question. 4.3 In that context it is appropriate to draw attention to the fact that one of the matters specifically identified by the High Court of Australia in Barbaro, as being a matter which the prosecution should bring to the Court’s attention, is the question of ‘comparable sentences’. There is, of course, as has been pointed out in many cases, a real difficulty in attempting to compare with any degree of precision the sentence imposed in one case with another. The range of factors, both those which influence an assessment of the seriousness of the offence and the culpability of the accused and those which derive from the accused’s circumstances, which are properly taken into account, makes it very difficult to draw any great assistance from a single sentence. It is for that very reason that a sentencing judge must be allowed a real margin of appreciation in determining the appropriate sentence. Likewise, drawing to a sentencing judge’s attention a single decision, whether of a sentencing judge in another case or of this Court, is unlikely to be of very great assistance, at least in many situations. However, where there is sufficient information available as to the range of sentences typically imposed, different considerations obviously apply. That leads logically to the second issue raised.”
42. Prior to considering the role of the prosecutor in the light of Z and Fitzgibbon (No.2) it must be recalled that the judgment in Fitzgibbon (No.2) was given by a Court of Criminal Appeal two of whose members (Clarke J. and Sheehan J.) were common to the Court of Criminal Appeal which gave judgment in Ryan (No.1) on the 18th March, 2014 and Ryan (No.2) on the on the 17th July, 2014, in which they referred with approval to the principles set out in Fitzgibbon (No.2) and which appear relevant to a full understanding of Z and Fitzgibbon (No.2). In Ryan (No.1), the Court considered the ways of determining an appropriate sentence and stated at paras. 3.1 to 3.3:
One possible means of converting such an analysis into an actual sentence involves, as a first step, the sentencing judge determining the appropriate sentence for the offence itself having regard to where the offence lies along that range. The sentencing judge is then required, in accordance with the established jurisprudence, to take into account the circumstances of the individual accused and make such adjustment (if any) as may be appropriate to reflect the individual circumstances of that accused. Where, for example, there are significant mitigating and other personal factors, then a specified reduction in sentence and/or a suspension of sentence in whole or in part may be appropriate to meet those factors. In adopting this methodology, the sentencing judge indicates what the appropriate sentence might be, were it not for the individual circumstances of the accused concerned, and then adjusts the sentence, as appropriate, to reflect those individual circumstances. However, a sentencing judge does not necessarily have to indicate what sentence would be appropriate for the offence itself. Rather the sentencing judge may determine where it is appropriate to place the offence in the spectrum and then adjust that place to reflect any individual circumstances of the accused so as to determine where the sentence itself should lie along the range of appropriate sentences having regard both to the offence and the circumstances of the accused. It seems to this Court that either of such methodologies is an entirely appropriate way for a sentencing judge to approach the question." 44. What then is the permitted role of the prosecution in a sentencing hearing following the single judgment in Z and the two judgments in Ryan and Fitzgibbon? At a level of general principle it appears to this Court consistent with all the judgments that the prosecution is entitled to and should give assistance to the sentencing judge in relation both to placing the offence at the appropriate point on the spectrum of severity and in identifying the sentence or where on the range of sentences it is appropriate to place the offence. 45. The permitted assistance and limits on same in relation to the second part of the sentencing exercise, namely the determination of the appropriate sentence or range of sentences for the offence may now be summarised as follows.
b. Where there exists guidance of either type described then it is open to the prosecution to make submissions as to where, in the light of that guidance and the facts admitted or proved the appropriate sentence for the offence in question falls on the range of sentences. c. Where no guidance from an appeal court or a reputable analysis of sentences typically imposed by sentencing judges for the offence in question exists, it is not appropriate for the prosecution to suggest any sentence or a place on the range of sentence for the offence in question. 47. What, with respect, is less clear from these judgments is the assistance which may or should be given by the prosecution to a sentencing judge in relation to where on the spectrum of severity for the offence in question the actual offence committed lies. This Court considers that from the judgment in Z and Fitzgibbon (No.2) it follows that even in the absence of guidance of the type described on the appropriate range of sentences the prosecution may and should in some instances give assistance to a sentencing judge in placing the offence committed on the spectrum of severity for the offence in question but not make any further submission as to the appropriate range of sentence for the offence. Whilst in relation to some offences such as where there is a relatively low maximum sentence there may be a direct correlation between the place on the spectrum of severity and a corresponding straight line arithmetic place on range of permissible sentences in others particularly where life is the maximum sentence such a straight line correlation may not exist. 48. One circumstance where such assistance would be appropriate is where there exist judgments of an appellate court which identify the factors to be taken into account when sentencing for a particular offence. It would then be appropriate for the prosecution to draw attention to these judgments and to make submissions as to where in the light of that guidance the offence in question falls on the spectrum of severity. There may be other circumstances in which such assistance is permissible and appropriate. It is only intended to consider that pertaining in the sentencing of the appellant. Application of principles in Z and Fitzgibbon (No 2) to this appeal 50. The Court recognises that the novelty of this prosecution, the nature of the offence created by s. 3(2A) of the 1998 Act and the decision in Z without the clarification in Fitzgibbon (No. 2) presented considerable difficulties for the trial judge and prosecution and defence teams. Nevertheless the Court considers that certain of the submissions by the prosecution which appear to have been taken into account by the trial judge were impermissible. Firstly, the Court considers that it was not in accordance with the principles set out to submit for consideration sentence decisions on offences other than the offence in question i.e. the offence of which the appellant was convicted. Such decisions do not come within the permitted guidance in relation either to the severity of the offence or the appropriate sentence. Secondly the Court considers that in accordance with the judgments in Z and Fitzgibbon (No. 2) it was not open to the prosecution to make any submission in relation to the appropriate sentence by reason of the absence of any guidance either from decisions of an appeal court or any reputable analysis of the sentences typically imposed by sentencing judges for offences contrary s. 3(2A) of the 1998 Act. Hence it was not permissible to submit as was done that “at the very least the Director would say this is in the mid range of sentencing or mid range of offending, perhaps even towards the upper end of the mid range”. The trial judge erred in principle in considering these submissions. 51. For the reasons already set out, the Court considers that it was both permissible and incumbent on the prosecution to assist the trial judge in the difficult task of placing the offence of which the appellant was convicted at an appropriate point on the spectrum of gravity of the offences included within s. 3(2A) of the 1998 Act. Counsel for the prosecution sought to assist by considering the nature of the offence created by s. 3(2A) as compared with other offences created by other subsections of s. 3 of the 1998 Act. Again the Court does not consider such an exercise appropriate rather what ought to have been considered and analysed was the spectrum of wrong doing encompassed within the offences created by s. 3(2A) and from an identification of the facts constituting the offence of which the appellant was convicted, an objective analysis as to where within the spectrum of wrong doing encompassed by s. 3(2A) of the 1998 Act, the offence of which the appellant was convicted lay. Severity of Sentence 53. Can, however the offence committed by this particular offender in these particular circumstances be properly characterised as one meriting a sentence in the range of six to eight years as a starting point prior to any questions of mitigation? It is important to note that any offence of this nature involving a purpose of sexual exploitation of a child by a significantly older adult is, by definition, a serious and grave offence. Nothing in this judgment should be taken as detracting from that assessment. It may be helpful to observe that descriptions or labels of particular criminal conduct as being within a “lower range” or “mid range” whether on the spectrum of severity or range of sentences may sometimes give a false or misleading impression, not least in cases of this kind. However, such descriptions are of assistance to sentencing judges and in the interest of achieving consistent sentences. In relation to this offence such description must be understood in the context of what is at any point on the spectrum a serious and grave offence. 54. The essential ingredients of the offence committed contrary to s. 3(2A) of the 1998 Act are:-
b. that he had met or communicated with Ms. F. on two or more previous occasions; and c. he travelled to meet for the purpose of doing anything that would constitute sexual exploitation of Ms. F. 56. The sentence hearing and the trial judge’s subsequent sentence ruling appear to have proceeded on the basis that the purpose of the appellant in travelling to meet Ms. F. was to invite (or perhaps, induce) Ms. F. to engage in a sexual act by either masturbating him or performing some act of oral sex. There was no suggestion, on the facts adduced of an intention by the appellant to coerce Ms. F. to commit or perform such acts. The reason for which we refer to a possible inducement is the evidence of the offer made by the appellant in a phone call with Ms. F. to bring her phone credit and alcohol. However as against that, the trial judge in her sentencing remarks refers to Ms. F as a “willing participant”. There was no analysis or determination of the basis upon which the actual purpose of the appellant in meeting Ms. F. if carried out would have constituted sexual exploitation as defined by s. 3(5) of the 1998 Act. The trial judge referred to the admission made by the appellant in Garda interview of wanting to meet Ms. F. for “a sexual act” and an indication given by him of masturbation and oral sex, but his denial of any intention of full intercourse. This Court is not aware of the evidence or submissions at the trial before the jury. It does not appear from the transcript of the sentence hearing and decision of the trial judge that there was any analysis at that stage of the basis upon which the admissions made or facts proved constituted sexual exploitation as defined by s. 3(5) of the 1998 Act. As the relevant purpose of the meeting would have to have been proved beyond reasonable doubt, in the absence of compelling evidence of an intention to induce Ms. F. to perform a sexual act, it appears that the sentencing of the appellant either did or should have proceeded upon the basis of the relevant purpose being to invite Ms. F. to engage or participate in a sexual act within the meaning of s. 3(5)(d). The commission of such a sexual act even with the consent of the child under the age of fifteen years would also constitute the commission of a sexual assault which is a scheduled offence to the Sex Offenders Act 2001 and hence also come within s. 3(5)(c) of the 1998 Act and thereby sexual exploitation as defined. 57. Notwithstanding that this is as we have already stated an intrinsically serious offence which is gravely wrong, nevertheless its relative gravity ought to have been considered in the context of the wide range of situation which may constitute offences under s. 3(2A) of the 1998 Act and in particular the wide range of purposes which would constitute sexual exploitation of a child within the meaning of s. 3(5). The trial judge erred in failing to do this. 58. A consideration of the wide definition and generality of the term “sexual exploitation" in s. 3(5) of the 1998 Act, makes clear that there are many purposes included therein, which are significantly more morally reprehensible and egregious than the purpose of the meeting in this case and for all of which the Oireachtas has imposed for an offence contrary to s. 3(2A) a maximum sentence of fourteen years. These include, for example, meeting a child for the purpose of coercion to perform any sexual act or coercion to engage in full intercourse, prostitution or coercion into child pornography or for rape or buggery. It is in the context of the wide definition of sexual exploitation for the purposes of offences coming within the scope of s. 3(2A) that the gravity of the particular offence of which the appellant was convicted ought to have been considered. 59. The Court also considers it relevant to take into consideration the circumstances in which the appellant came to be travelling to meet the child in determining the gravity of his offence. This Court considers it relevant to an assessment of the gravity of the offence that the appellant, in May 2011, upon being told the age of the child, did cease contact and that the contact was renewed by Ms. F. and that the arrangements to meet were made during a conversation which the appellant thought he was having with Ms. F. but in fact was having with her mother. These latter circumstances do not excuse the wrongdoing by the appellant and the commission of the offence, but are relevant to take into account in considering the gravity of the offence committed. 60. The Court considers that the trial judge erred in principle in not considering the relative gravity of the offence committed by reference to the facts admitted or proved in the context of the full spectrum of potential offences contrary to s. 3(2A) of 1998 Act, particularly by reference to the wide range of matters defined as constituting sexual exploitation in s. 3(5). Further the Court considers that this error in principle lead her in error to decide that the gravity of this particular offence in the circumstances in which it was committed fell within the mid range of offences contrary to s. 3(2A) such that before consideration of mitigating factors a sentence in the range of six to eight years was appropriate. In this Court’s view this was a disproportionate starting point for the appropriate sentence for the offence committed by the appellant and lead to an unduly severe sentence of four years. 61. Accordingly the Court will allow the appeal and will hear further submissions prior to determining the appropriate sentence. Mitigating Factors 63. The first ground related to the trial judge’s view that the offer of compensation was “not appropriate in the circumstances of this case”. The court considers that the trial judge was correct in her conclusion that this was not an appropriate case in which compensation could or should have played any role so far as the imposition of sentence is concerned. 64. Apart from any other consideration relating to the nature of the offence, the power of the court to direct the payment of compensation in cases of this kind is contained in s. 6 of the Criminal Justice Act 1993. This section provides in relevant part as follows:
(2) The compensation payable under a compensation order . . . shall be of such amount . . . as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned. (5) In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard - (a ) to his means . . . 65. Whilst this was an offence which was tried on indictment and therefore the section prima facie applies the permitted order is one requiring the convicted person to “pay compensation in respect of any personal injury or loss resulting from that offence . . . to any person . . . who has suffered such injury or loss”. The offence of which the appellant was convicted was one of travelling to meet for a particular purpose. The meeting never took place. On the admitted facts upon which the sentencing hearing was based, there was happily no evidence of any personal injury or loss to Ms. F. resulting from the offence. 66. Accordingly this Court considers, apart from any other reason for which compensation may not have been appropriate, s. 6 did not apply to the admitted facts. 67. The final ground pursued, was that the trial judge in her sentencing remarks indicated that she was in effect penalising the appellant for having pleaded not guilty and requiring every aspect of the case against him be proved. This submission arose by reason of an exchange with counsel at the sentencing hearing as to whether the trial judge could have regard to “the manner in which the trial was run and the putting on proof of every garda witness in the case” and her statement in her decision on sentence “I am not in a position to give any credit for the accused due the manner in which the matter has proceeded”. 68. It is of course well settled that a convicted person should not be penalised for exercising his constitutional right to plead not guilty and to have the case against him proved: see The People (DPP) v Shekale [2008] IECCA 28 per Finnegan J. and The People (DPP) v Daly [2012] 1 I.R. 476, per McKechnie J. In Shekale, Finnegan J. stated:-
Conclusion |
