Should rehabilitation be taken into account in sentencing sex offenders?

On the 12th December 2017 Justice Mahon on behalf of the Court of Appeal Criminal delivered judgment in the case of Director of Public Prosecutions v A.P.

The appellant, having lodged an appeal against severity only, had entered a guilty plea to one count of sexual assault contrary to Section 2 of the Criminal Law (Rape) Amendment Act 1990 as well as one count of exploitation contrary to Section 3 of the Child Trafficking and Pornography Act 1998 on the 20th January 2016. The Circuit Court then imposed sentence of 4 years imprisonment on each count to run concurrently on the 5th October 2016.

One of the grounds of appeal was that the sentencing Judge erred in law in failing to have adequate regard to the principle of rehabilitation in sentencing.

The Court of Appeal while accepting that the sentencing Judge’s approach to sentencing was appropriate, consideration was not afforded to “incentivising rehabilitation”. The appellant had pleaded guilty to both offences, was someone who came before the Court with no previous convictions, possessed a strong work history and had not come to the attention of An Garda Siochana since this offence Furthermore, in reports submitted to the sentencing Judge, the appellant was described as “psychologically vulnerable with mood regulation difficulties”. There were a plethora of reports in Court including a probation report which placed the appellant at low risk of reoffending and highlighted his genuine remorse and responsibility for his offending behaviour.

 Given what was highlighted in those reports, the sentencing Judge ought to have afforded consideration to “incentivising rehabilitation”. The appellant appeared to have faced up to his offending and availed of every opportunity to address the problems which contributed to that offending behaviour.

The Court of Appeal ruled held that the appellant should be incentivised to continue his rehabilitation during his remaining time in prison and post release.

This decision is important given the increase in the number of these cases coming before our Courts in recent times.

Ciara Hallinan, Solicitor

13th February 2018