DM, R v

Factual and Procedural Background

This opinion concerns a reference by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988 regarding a sentence of 30 months imprisonment suspended for three years. The sentence was imposed on the Defendant following a guilty plea on re-arraignment before the learned trial judge on 7 March 2012 at Enniskillen Crown Court. The Defendant was convicted of one count of sexual activity involving penetration with a child aged between 13 and 16 years, contrary to Article 16 of the Sexual Offences (Northern Ireland) Order 2008.

The victim was just over 15 years old at the time of the offence, committed in late September 2010. The Defendant, born in 1987, was 23 years old then. On the night in question, the victim, while out with friends, arranged to stay at her older cousin's house. She entered licensed premises with the cousin, the cousin's boyfriend, and the Defendant. The victim consumed alcohol, including five vodkas bought by the cousin's boyfriend, then took a taxi to the Defendant's house. The victim and Defendant went inside while the others left. The Defendant provided the victim with more vodka, brought her to his bedroom, and had sexual intercourse with her by consent but without protection. The victim became pregnant, underwent a termination in England, and the Defendant denied the sexual activity until the trial, despite DNA evidence linking him to the foetal material.

The Defendant had prior convictions unrelated to sexual offences and was in an age-appropriate relationship at the time of the plea. Aggravating factors included the age difference, unprotected intercourse causing pregnancy, the victim’s psychological harm, and the Defendant’s persistent denial. The Defendant claimed credit for his guilty plea, arguing a good defence based on his belief about the victim’s age, supported by social services records indicating the victim appeared older. The court did not accept the Defendant’s age as a mitigating factor and noted the absence of grooming or premeditation. The Defendant changed his plea following discussions in chambers involving evidence from the victim’s social media and the prospect of a suspended sentence.

Legal Issues Presented

1. Whether the sentence of 30 months imprisonment suspended for three years was appropriate for the offence of sexual activity involving penetration with a child aged between 13 and 16 years.
2. Whether the circumstances of the case justified a suspended sentence rather than immediate custody.
3. Whether the Defendant’s plea and the discussions in chambers affected the appropriateness of the sentence.

Arguments of the Parties

Defendant's Arguments

• The Defendant contended that credit for his guilty plea was justified due to a potentially strong defence based on his reasonable belief that the victim was over 16 years old.
• He argued that his age and personal background, including coping with his father’s death and steady employment, should be mitigating factors.
• The Defendant maintained that the victim was not corrupted by the offence.
• Junior counsel presented evidence from the victim’s social media to support the defence of reasonable belief in the victim’s age.

Prosecution's Arguments

• The prosecution accepted that the sentence imposed was at the top or possibly outside the appropriate range for this offence.
• They contended that suspended sentences in such cases should only be given in exceptional circumstances.
• The prosecution noted the aggravating factors, including the victim’s psychological harm and the Defendant’s persistent denial, which undermined the credit for the plea.
• Crown counsel indicated that a plea would provide considerable relief to the complainant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v SG [2010] NICA 32	Use of Sentencing Guideline Council report for offences under the Sexual Offences Act 2003 to select sentencing range.	Confirmed flexibility in sentencing ranges depending on circumstances; referenced to contextualise the appropriate sentence range.
R v Corran [2005] EWCA Crim 192	Guidance on sentencing for sexual offences involving consensual activity with girls under 13.	Used as a benchmark for sentencing on guilty plea, supporting a sentence of around 15 months in comparable cases.
R v Barrass [2006] EWCA Crim 2744	Application of Corran in sentencing a 26-year-old with a 14-year-old victim where alcohol was involved.	Supported an 18-month imprisonment sentence, used as comparative authority.
R v Frew [2008] EWCA Crim 1029	Sentencing for single act of consensual intercourse resulting in pregnancy and abortion, with plea taken into account.	Sentence reduced to 18 months, illustrating need for flexibility and variability in sentencing.
Attorney General's Reference No 72 of 2009 (Kent) [2009] EWCA Crim 2437	Exceptional circumstances justifying suspended sentences in sexual offences involving older, streetwise victims and complex factors.	Court found this case was not comparable and did not support suspension in the present case.
Attorney General's Reference (No 4 of 2004) [2005] NICA 18	Importance of recording or noting discussions in chambers affecting plea decisions and sentencing expectations.	Reiterated the need for transparency in plea discussions; influenced the court’s view on the propriety of the plea process here.

Court's Reasoning and Analysis

The court analysed the facts and sentencing precedents to determine the appropriateness of the suspended sentence. It noted the significant aggravating factors: the age difference, unprotected intercourse causing pregnancy, and the victim’s psychological harm. The Defendant’s persistent denial until trial further undermined his plea credit. Although the Defendant relied on a defence of reasonable belief in the victim’s age, supported by social services records and social media evidence, the court found this defence weak given the victim’s testimony and the Defendant’s conduct.

The court reviewed relevant sentencing guidelines and case law, including R v SG and English Court of Appeal decisions (Corran, Barrass, Frew) to establish appropriate sentencing ranges. It concluded the 30-month sentence was at the upper end or possibly outside the typical range for such offences. However, it emphasized that suspended sentences are only appropriate in exceptional circumstances, which were not present here.

The court rejected reliance on the Kent case as it involved exceptional circumstances not present in this matter. It also considered statistical data on sentencing outcomes, which supported immediate custodial sentences in most similar cases. The court expressed concern about the informal discussions in chambers regarding plea and sentence prospects, underscoring the necessity for proper recording to ensure transparency and public confidence.

Ultimately, despite the sentence being arguably stiff, the court decided not to interfere with the sentence, recognizing the complexities surrounding the plea and sentencing process in this case.

Holding and Implications

The court declined to interfere with the sentence of 30 months imprisonment suspended for three years imposed on the Defendant.

The direct effect of this decision is that the Defendant’s suspended sentence stands as imposed by the trial judge. The court did not set new precedent but reaffirmed that suspended sentences for offences of this nature are reserved for exceptional cases. The ruling underscores the importance of transparency in plea discussions and careful application of sentencing guidelines tailored to the facts.