Director of Public Prosecutions v T.S [2019] IECA 252 (15 October 2019)

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JUDGMENT of the Court delivered on the 15th day of October 2019 by Ms. Justice

1. The appellant was convicted of one count of rape contrary to s.4 of the Criminal Law

(Rape) (Amendment) Act 1990 and two counts of sexual assault contrary to s.2 of the

Criminal Law (Rape)(Amendment) Act 1990. Following his conviction, he was sentenced

to five years’ imprisonment with the final two years suspended in respect of the rape

count and three years’ imprisonment in respect of the counts of sexual assault, all to run

concurrently. The appellant now seeks to appeal against the severity of this sentence. The

Director of Public Prosecutions seeks a review pursuant to s.2 of the Criminal Justice Act

1993 of the sentence imposed on the grounds that it was unduly lenient. For the

avoidance of confusion, the Director of Public Prosecutions will be hereinafter referred to

as “the Director” and Mr S. will be referred to as “the defendant”.

2. The offences in question were perpetrated by the defendant against his wife and took

place on the evening of the 30th August, 2015, in the studio flat in which they then lived

in Rathmines. There had been a disagreement between the parties on the previous day

and the defendant warned the complainant not to come home the following day.

However, the complainant did come home and when the defendant arrived home that

night, a row ensued. The complainant described how this culminated in her lying face

down on the bed and the defendant proceeded to jump on top of her. He ripped off her

clothing and covered her mouth with his hand, so she could not scream. She was crying

with his hand over her mouth. He then sexually assaulted her by digitally penetrating her

anus; he moved his finger in and out of her, hurting her and them removed his hand from

her mouth to retrieve some oil from the bedside table. He got on top of her, poured the

oil on her bottom area and inserted his penis into her anus and continued until he

ejaculated. He also at some point, digitally penetrated her vagina. Afterwards, the victim

went to the bathroom and noted that there was some blood on the tissue. She was also in

3. The complainant contacted an Garda Síochána the next day and made a complaint. On

the 3rd April, 2017, the defendant was charged with two counts of sexual assault, a count

of assault, a count of vaginal rape and a count of s.4 rape. The defendant pleaded not

guilty and was tried over a three week period in the Central Criminal Court in July, 2018.

The trial judge directed a verdict of not guilty in respect of the assault count and the jury

disagreed on the vaginal rape count but in respect of the remaining offences the

4. During the course of the sentence hearing, the initial victim impact report of the

complainant, obtained in September, 2018, was handed into the Court. The Court heard

that the complainant subsequently wrote a letter addressed to the trial judge. This letter

was dated the 30th October, 2018, and was, essentially a plea for clemency by the

"Please to accept my husband T.S forgiveness for his conduct towards me. I've

completely forgiven him and without a doubt I still have strong feelings for my

husband and I'm pretty sure that he also does. I do not want him to go to prison.

I totally understand that it may be difficult for the Court to accept this apology but I

hope that this letter might give me an opportunity to help prove his remorse. I just

want the Court to know about how I feel about this case. I sincerely regret the

things that I did. I never thought it was going to have such a big impact on our

children's lives and especially on my life and I will admit that it was a huge mistake

and that I should have never made it in my life. So for these reasons, I want the

Court to forgive me as I did it all in a moment of anger. I really do need my

husband with me to be able to be build a great future for our kids.”

The complainant went on to detail the difficulties she faced both financially and in relation

to taking care of her children without her husband. She also spoke of the positive role her

husband played as a father and the positive impact he has had on the children.

5. In imposing sentence, the sentencing judge first identified a headline sentence by

assessing the gravity of the offences. In this regard, the sentencing judge referred to

several aggravating factors including: that the defendant put his hand on the victim’s face

and restricted her breathing, he ripped off her clothing and the sexual assaults involved

the digital penetration of the anus and vagina. The sentencing judge also referred to the

impact of the offending on the complainant and the fact that rape always constitutes a

savage attack on the bodily and psychological integrity of the victim. In light of such

factors, the he identified a headline sentence of six years’ imprisonment in respect of the

count of anal rape and four years’ imprisonment in respect of the counts of sexual

6. The judge then considered the general mitigation present including the defendant’s lack of

previous convictions; he had not come to the attention of an Garda Síochána since the

offending in question, during which time he lived with the complainant without complaint

or incident; he had a long history of hard work; he is acknowledged to a devoted and

caring father and his children are greatly attached to him as their primary carer and he

had, albeit, after the verdict, acknowledged his guilt and remorse for the offences

committed and for the ways in which he hurt his wife throughout their marriage. Taking

account of these factors, the trial judge reduced the sentences to terms of five years for

the count of rape and three years’ imprisonment for the counts of sexual assault.

7. The sentencing judge then went on to consider the complainant’s plea for clemency. The

judge accepted that there was no suggestion that the complainant’s plea was not genuine

but the Court was careful to look at the letter in the context of the evidence as a whole

“The Court notes, with no little concern, the fact that she said she regrets her

decision to go to the Gardaí as "a huge mistake that she should never have made".

This suggests that she has a misplaced and wholly inappropriate sense of guilt

about going to the Gardaí to report the fact that she'd been raped and sexually

“In this case, the victim has pleaded for clemency on the basis that a custodial

sentence will, in effect, only add to her suffering, because it would deprive her of

the benefits of a normal family life that she now seeks for herself, her children, and

her mother in law. Therefore, implicit in her plea to the Court is a statement of

belief on her part that her husband has rehabilitated, at least to the extent that he

can be trusted to live normally within the family unit as a caring and devoted

husband and father. The Court is somewhat sceptical about her optimism, not least

because it is at variance with the evidence that Mrs S gave to the jury in the course

of the trial, but also because she appears to be actuated, at least in part, by a

misplaced sense of guilt about making her complaint to the Gardaí in the first place.

The Court, nonetheless, must be mindful not to unnecessarily or gratuitously cause

detriment to the victim, and must also give some credit to the defendant for his

belated acknowledgment of guilt and expression of remorse to his victim. At the

very least, his change of attitude is the first, critically important step towards

To take account of the reasons underlying the plea of clemency, the sentencing judge

suspended the last two years of the five-year term of imprisonment in respect of the rape

offence, giving an effective sentence of three years’ imprisonment, backdated to the 30th

July, 2018, the date on which the defendant first went into custody in relation to these

8. The defendant is a native of Mauritius, he moved to Ireland in 2009 and he was joined by

his wife in 2010. He has two children with the complainant, aged approximately thirteen

and fifteen years old, with whom he is very close. At the sentence hearing, a letter was

handed into the Court from the defendant in which he apologised to his wife and family

and accepted that the jury came to the right decision in finding him guilty. The defendant

1. The learned judge erred in principle in imposing an unduly lenient sentence in all

the circumstances, being a sentence of five years imprisonment with the final two

years suspended on condition that he keep the peace and be of good behaviour for

a period of two years post release in respect of the offence of rape contrary to

section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and a concurrent

sentence of three years imprisonment in respect of the two offences of sexual

assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as

2. The learned judge erred in failing to attach appropriate weight to the aggravating

3. In particular, the learned sentencing judge failed to have appropriate regard to the

aggravating factors which obtained in relation to the offence of rape contrary to

section 4 Criminal Law (Rape) (Amendment) Act, 1990, and erred in determining

4. The learned judge erred in according undue and excessive weight to the mitigating

factors in the case and in particular to the personal factors relating to the defendant

and the plea of clemency by the injured party on behalf of the defendant.

5. The sentence imposed fails to reflect the nature and gravity of the offences

10. Ms. Lawlor S.C. on behalf of the Director submits that the six-year pre-mitigation

sentence identified by the trial judge was simply too low given that the offences

constituted a very serious breach of trust on the part of the defendant, the offences were

committed in the injured party’s home, the act of covering her mouth, thus restricting her

breathing and ability to cry out and the ripping off of her clothing.

11. It is fair to say that in submissions, Ms. Lawlor focused on the most serious of the

convictions, namely; the conviction for anal rape and in this regard says that the headline

sentence of 6 years does not adequately reflect the gravity of the offence. She also

argues, that the downward adjustment for mitigation was too great and this is particularly

so, given that the most powerful mitigation, a prompt plea of guilty, was not present.

Moreover, she says that excessive discount was afforded to the defendant for the plea for

clemency made on his behalf by suspending the final two years of the sentence. Overall

it is submitted on behalf of the Director that if the judge had nominated a greater pre-

mitigation sentence, that she would not complain of the discount afforded for mitigation,

namely; a downward reduction of one year for mitigation and the suspension of the final

two years to take account of the plea for clemency. However, where the sentence was

reduced by 50% and in circumstances where the pre-mitigation figure was six years

imprisonment, she argues that this amounts to an error in principle. In conclusion it is

submitted that the sentence was a substantial departure from the appropriate sentence

12. In reply Mr Dwyer SC for the defendant contends that this was a case where the trial

judge took great care to determine the correct sentence in a matter which was extremely

complex. He argues that the director and the defendant found themselves in unexplored

territory and could not call in aid any precedent which accurately reflected the complexity

of the prevailing circumstances. It is argued on behalf of the defendant that the director is

simply incorrect in characterising the defendant’s position as being a plea for clemency on

the basis of the injured party’s forgiveness and the hardship which would be suffered by

13. Mr Dwyer argues that his client is a man with no previous convictions, that he

acknowledged his guilt and expressed remorse after conviction, that there was a three

year period between the date of the offending conduct and the sentencing of the

defendant in which there had been no further incidents or complaints notwithstanding

that the defendant and the injured party had resumed relations and lived together for a

period of six months. He places particular emphasis on the evidence given by the injured

party that the defendants continued incarceration made matters difficult for her financially

and in terms of caring for her children, who are very attached to their father.

14. In written submissions and to a certain degree in oral submissions, Mr Dwyer sought rely

upon the evidence of a social worker, who gave evidence in the sentence hearing.

However, it is apparent that the social worker was unaware of the stance taken by the

defendant at trial and had not had direct dealings with the family.

15. In summary, Mr Dwyer argues that the sentence imposed was not a substantial departure

from the appropriate sentence and that the director has failed to establish an error in

16. The defendant has lodged an appeal against severity of sentence and in summary seeks

to argue that the trial judge erred in failing to give sufficient or appropriate weight to

17. This court will however first address the appeal on the part of the Director.

18. There is an unusual feature to this case insofar as the victim, the defendant’s wife,

following a conviction of her husband for section 4 rape and sexual assault, wrote to the

trial judge pleading for clemency for her husband to which plea we will return.

19. Following the defendant’s conviction, a victim impact report was ordered which was

obtained in September, 2018. This report was read to the court in the course of the

sentence hearing. The impact report disclosed the effect on the injured party and in

particular emphasises the emotional pain for the injured party in witnessing the

consequences of the verdict on her children. In her impact statement, the injured party

stated that she was not scared anymore, that she goes home and she is comfortable, that

she is safe. It is common case that the relationship was from time to time volatile and

chaotic. She refers to this in terms in her impact statement and she concludes by

indicating that she is moving forward with her focus on her children to give them the best

20. On the 30th October, 2018, the victim wrote the aforementioned letter praying for

clemency for the defendant. This letter was addressed to the trial judge and in it the

victim expresses regret in the context of the case. She stated as follows: –

“Please to accept my husband TS forgiveness for his conduct towards me. I’ve

completely forgiven him and without a doubt I still have strong feelings for my

husband and I’m pretty sure that he also does. I do not want him to go to prison. I

totally understand that it may be difficult for the court to accept this apology and I

hope that this letter might give me an opportunity to have proved his remorse. I

just want court to know about how I feel about this case. I sincerely regret the

things I did. I never thought it was going to have such a big impact on our

children’s lives and especially on my life and I will admit it was a huge mistake and

that I should have never made it in my life. So for these reasons, I want the court

to forgive me as I did it all in a moment of anger. I really do need my husband with

21. In the letter, the victim addresses their financial commitments in Mauritius and her

financial difficulties in this jurisdiction and praises her husband’s abilities to provide for

her and the family. She then sets out in some detail the close relationship between the

defendant and their two children and emphasises their suffering as a result of his

“I have to say that they were always most attached to their father then they word

to me. They are still very young to face this situation and I am really hoping that

my husband and I together could make them to become happy again and give

them their best life that they really deserve. The purpose of this letter is to convey

to you, your honour, and the court my sincere apologies for any inconvenience with

have both caused. Please, judge, we would be grateful if you would take all these

22. The victim also gave oral testimony in the course of the sentence hearing and indicated

inter alia that she forgave her husband and did not want him to go to jail she really

needed him for her to children. She also stated that she wants to build a new relationship

with him she confirmed in re-examination that her primary concern was her children; her

daughter at the time of sentence was 15 years of age and her son 12 years of age.

23. When asked by the judge about the what she had said in her victim impact statement;

she said that she was no longer fearful but that she was not happy and this seemed to

centre on her children’s unhappiness due to their father’s absence. The sentence hearing

was adjourned for further evidence and on the 21st January, 2019, the judge imposed

24. The jurisprudence in s.2 appeals by the Director is well known commencing with The

People (Director of Public Prosecutions) v. Byrne [1995] 1 ILRM 279 The principles were

summarised in The People (Director of Public Prosecutions) v. Stronge [2011] IECCA 79

(ii) to establish undue leniency must be proved that the sentence imposed

constituted a substantial or gross departure from what would be the appropriate

sentence circumstances. There must be a clear divergence and discernible

(iii) in the absence of guidelines or specified tariffs for individual offences, such a

departure will not be established unless the sentence imposed falls outside the

ambit or scope of sentence which is within the judge’s discretion to impose:

sentencing is not capable of mathematical structure and the trial judge must have

(iv) this task is not enhanced by the application of principles appropriate to an appeal

against severity of sentence. The test under section 2 is not the converse to the

(v) the fact that the appellant court disagrees with the sentence imposed is not

sufficient to justify intervention. Nor is the fact that if such court was the trial

court a more severe sentence would have been imposed. The function of each

court is quite different: on a s. 2 application it is truly one of the review and not

(vi) it is necessary for the divergence between that imposed and that which ought to

have been opposed to amount to an error of principle, before intervention is

(vii) due and proper regard must be recorded with the trial judge’s reasons for the

imposition of sentence, as it is that judge who receives, evaluates and considers

25. In her victim impact statement, the victim was very concerned, indeed distressed to see

the effect of her husband’s incarceration had for her children. It is quite clear that this

had a devastating effect on her. Notwithstanding her concerns for her children relating to

their difficulty in coming to terms with their father’s absence and the reason for this, she

expressed her fear for the defendant and the fact that she no longer felt scared.

26. In assessing the weight to be attributed to the plea for clemency, the judge analysed the

reasons behind the plea. He assessed the evidence which he had heard regarding the

relationship between the parties; the fact that the defendant left his native Mauritius and

came to Ireland in 2009 and was joined by the injured party in 2010 while their children

remained in Mauritius. The defendant and the injured party lived together until the date

of the offences, in August, 2015. In December, 2015, the children, together with her

paternal grandmother came to live with the defendant in Ireland and, notwithstanding the

complaint of rape and sexual assault, the injured party reconciled with the defendant and

they lived together with the children between March and August, 2016. Thereafter, the

children lived by choice, for the most part with their father and paternal grandmother

until 30 July, 2018, when the defendant was convicted of the within offences. It is

common case that the children are very attached to their father and that the victim was

enormously distressed to witness the effect their father’s incarceration had on them.

27. The judge considered the victim impact statement of September, 2018, the letter to the

court of the 30th October, 2018, and the subsequent evidence to court and concluded

that the victim had fundamentally modified her position between the date of her victim

impact statement and her letter seeking clemency for the defendant. By the time she

gave evidence in the sentence hearing, she indicated a desire to reconcile with the

defendant and pleaded with the court not to send him to prison primarily on the basis of

her children’s distress and the presenting financial difficulties. She also gave evidence

that she wished to reconcile with her husband and that she forgave him.

28. The sentencing judge had regard to her impact statement in assessing the gravity of the

offending conduct in terms of the effect of the offences on her and observed that rape

constitutes a savage attack on the bodily and psychological integrity of the victim.

29. He considered the weight to be afforded to the plea for leniency and suspended two years

30. Pursuant to the provisions of s.5 of the Criminal Justice Act 1993, as amended, a court in

imposing sentence shall take into consideration the impact of the offence/s on the victim.

In the ordinary course, a victim impact statement is prepared and furnished to the court

and victim may, if he or she so wishes give oral evidence as to impact. The question of

sentence is of course, ultimately one for the sentencing judge. Section 5 of the 1993 Act,

as amended, does not alter this. The impact on the victim is one of the factors which a

court shall take into consideration in imposing sentence. On rare occasions a court may

receive evidence on the part of the victim expressing a forgiving attitude towards the

person to be sentenced. This does not alter the fact that this is but one of the factors

which a sentencing judge may take into consideration in imposing a sentence. It is true,

as in the present case, that leniency may be sought by a victim in order to preserve the

family unit and ordinarily this is something to which courts attribute some weight. In

considering a plea for leniency on the part of the victim, Charleton J. observed in The

People (Director of Public Prosecutions) v W.D. [2008] 1 IR 308, at p. 319 of the

“a forgiving attitude by the victim towards the perpetrator can be a factor in

sentencing, on the decided cases. It can never, however, be determinative because

31. The judge concluded that the victim regretted her decision to make a complaint to the

gardaí and, by saying in her letter that this decision was “a huge mistake that she should

never have made”, suggested that she had a misplaced and wholly inappropriate sense of

guilt regarding the making of her complaint to the gardaí. With this conclusion we are in

entire agreement. It is clear from the content of the October letter that the victim felt that

she herself was to blame for her children’s distress, whereas in fact no complaint would

32. The attitude of the victim of a crime is a factor which a judge may take into consideration

in sentencing an offender. However, as observed by the judge, the offence is an attack on

society and not simply a private wrong, and therefore the attitude of the victim is not

determinative. It is a factor to be taken into account and weighed in the balance in order

to achieve a proportionate sentence; that is a sentence proportionate to the gravity of the

offence and the personal circumstances of the offender. The judge assessed the plea for

clemency as being one of the factors to be taken into consideration in constructing a

proportionate sentence and in this regard, we are satisfied that the approach of the trial

33. We first address the rape offence. The judge determined upon a pre-mitigation sentence

of six years imprisonment. The penalty for this offence ranges from a non-custodial

option to life imprisonment. However, having regard to the well-established

jurisprudence, a rape offence in almost all but the most exceptional cases, merits an

immediate and substantial custodial sentence as stated in the seminal decision of The

People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250.

34. In the instant case, the intrinsic gravity of the defendant’s actions was aggravated by the

very significant breach of trust, the restriction of the complainant by the defendant so

that she could neither breath or scream, the forcible removal of her clothing and the pain

caused to her. Moreover, she was humiliated and degraded in her own home. We do not

believe that there is any scope to differentiate between marital rape and any other

category of rape, save that in the instance of marital rape, the gravity of the offence will

always be aggravated by the breach of trust and betrayal of the victim which arise by

35. We are of the view that the offending conduct by the defendant was of a grave nature.

We have already stated the aggravating factors as identified by the judge but, in addition,

we would add the physical pain suffered by the victim, the blood which she observed on

the toilet tissue in the aftermath of this offence, the very significant breach of trust and

36. The sentence imposed was a lenient sentence but the issue is whether the sentence was a

substantial departure from the appropriate sentence in the prevailing circumstances. The

very fact that a sentence is lenient does not give rise to intervention by a reviewing court.

Nothing short of a substantial departure from what would be the appropriate sentence

37. In our view while the judge identified the aggravating factors, and whilst he may have

considered, if not expressly stated, the significant breach of trust in that analysis, we

conclude that the headline sentence did not adequately reflect the gravity of the offending

conduct. The pre-mitigation sentence of six years was simply too low in the circumstances

of this serious offending conduct and this, we are satisfied, amounts to an error in

principle as the sentence of six years constitutes a substantial departure from the

38. However, before we move to quash the sentence and re-sentence the defendant, we will

deal with the further argument advanced on behalf of the Director; that the judge erred in

39. In that regard, he took into consideration the absence of previous convictions, that the

defendant had not come to the adverse attention of the gardaí since the date of the

offences, during which period, and rather unusually, he resided with the complainant for a

period of approximately six months, his work history, his relationship with his children

and the fact that he is the primary caregiver, the belated acknowledgement of guilt and

expression of remorse which followed conviction. Accordingly, the headline sentence for

the rape offence was reduced by one year and to take account of the plea for clemency,

the final two years of the sentence were suspended on terms. This, Ms. Lawlor urged,

amounted to a 50% discount of the headline sentence which was excessive in the

40. In her oral submissions Ms. Lawlor S.C. placed considerable emphasis on the inadequate

assessment of gravity, whilst she contended that excessive discount was given to the

defendant for mitigating factors and the plea for leniency, the greater issue concerns the

headline sentence. The discount afforded for mitigation and the plea for leniency would

not, in our view, have impacted significantly on the sentence so as to amount to an error

in principle had the headline sentence properly reflected the gravity of the offending

41. Whilst the judge may have permitted of greater discount than may have been strictly

necessary, the reduction of the pre mitigation sentence by some 50% was within the

judges’ margin of appreciation in the unusual circumstances of the case. The judge

cannot be criticised for the manner in which he treated the mitigation present and the

42. As indicated, we conclude that the error in principle lies with the headline sentence and

not with the discount afforded for mitigation or the manner in which the judge dealt with

43. As we have identified an error in principle, we now quash the sentence and proceed to re-

sentence the defendant. As is well established the gravity of an offence must be

measured by reference to an offender’s culpability and the harm caused. In assessing the

aggravating factors, which include the significant breach of trust and the factors already

identified, we are satisfied that the appropriate pre-mitigation sentence for the offence of

s.4 rape in the present circumstances is one of 10 years imprisonment.

44. We take account of the mitigating factors, already identified, namely; the absence of

previous convictions, that the defendant did not come to adverse garda notice since the

commission of the offences, during which time he resided with the victim for the period of

some six months without complaint, his work history, and his devotion to his children.

Whilst we also taken into account his acknowledgement of guilt and expression of

remorse after conviction, to these factors we attach very little weight. An

acknowledgement of guilt and expression of remorse post-conviction must be viewed with

45. We are satisfied in all the circumstances to reduce the sentence to one of 7½ years

46. The sentencing judge very carefully analysed and considered how he should approach the

plea for clemency and having assessed the reasons underlying that plea, he then

suspended the final two years of the sentence. An ad misericordiam plea is but a factor to

be considered on the question of sentence. We are satisfied that the judge was correct in

looking to the reasons underlying the plea for clemency in assessing the weight to be

given to it. The function of a sentencing court and indeed any court is to administer

justice and a plea for leniency does not remove this function from a sentencing court. In

analysing the reasons underlying the plea for mercy, the victim made it quite clear that

she was most affected by the impact of the defendant’s incarceration upon her children,

her financial circumstances, her hope of reconciliation and the impact on the wider family.

Thus it was clear that she indicated to the court that a custodial sentence for the

defendant would only add to her suffering. However, the letter seeking mercy cannot be

viewed in isolation. The victim had expressed in her victim statement just one month

earlier that she was no longer scared. This is clearly due to the fact that her husband was

incarcerated. It is apparent from the impact statement that she was anxious to move

forward and focus on her children and her letter of October, 2018, must be viewed

against that background. Nonetheless we are conscious of the plea for mercy and the

underlying reasons for such plea and, as ordered by the sentencing judge, we will

suspend the final two years of the sentence taking that factor into account and also to

incentivise rehabilitation. We will not intervene in the sentence imposed on the sexual

assault counts and post-release supervision to remain as directed by the judge.

47. As we have concluded that the sentence was unduly lenient, it follows that it is

unnecessary to address the defendant’s appeal.

Result: Allow and Vary

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