QD v Director of Public Prosecution's Reference (Number 6 of 2019)

Factual and Procedural Background

This opinion concerns a reference by the Director of Public Prosecutions (DPP) for Northern Ireland under Section 36 of the Criminal Justice Act 1988, as amended, challenging the sentence imposed on the Defendant for a sexual assault on a child under 13 contrary to Article 14 of the Sexual Offences (Northern Ireland) Order 2008. The Defendant was sentenced to five months imprisonment by HHJ Kerr, QC, on 28 November 2018 for an offence committed in May 2011. The Defendant appealed his conviction, but the appeal was dismissed on 1 February 2019.

The victim, anonymised as "the child," was approximately 2 years and 7 months old at the time of the offence. The Defendant, the child's father, was babysitting when the assault occurred. The child reported to his mother that he and the Defendant had been playing with their penises and that the Defendant had ejaculated on him. There was no physical injury to the child, who appeared unaware that anything wrong had occurred. The Defendant initially denied the allegations but later made statements implying acceptance of his identity and conduct.

The Defendant was convicted after trial and sentenced to five months imprisonment, with 50% remission, and no licence conditions upon release. Notification requirements and inclusion on the children's barred list were automatically imposed by statute. The prosecution sought a Sexual Offences Prevention Order (SOPO), but the judge declined to impose one.

Pre-sentence reports assessed the Defendant as a medium likelihood of general reoffending and not a significant risk of serious harm, but with a high priority for supervision and intervention regarding sexual offending behavior. The Defendant has a history of alcohol misuse and suffers from Whipple's disease. He denies the offence despite conviction.

The Defendant has nine previous convictions, none for sexual offences. The judge considered aggravating and mitigating factors before imposing the sentence and declining the SOPO. The DPP contends the sentence was unduly lenient both in length and for failure to impose a SOPO.

Legal Issues Presented

1. Whether the sentence of five months imprisonment imposed on the Defendant was unduly lenient.
2. Whether the judge erred in declining to impose a Sexual Offences Prevention Order (SOPO) under section 104 of the Sexual Offences Act 2003.

Arguments of the Parties

Appellant's Arguments

• The starting point for sentencing should have been four years' custody, supported by precedents including R v AB and R v M, and English authorities such as R v Teeder and R v Moulding.
• The sentencing approach should reflect the gravity of the offence, deterrence, protection of vulnerable members of society, and public confidence in the sentencing system, as emphasised in Attorney General's References.
• The failure to impose a SOPO was based on an incorrect test; the judge applied a dangerousness test rather than the necessity test established in R v Rampley and R v Samuel Shannon.

Respondent's Arguments

• The differences between this case and the authorities cited by the prosecution justify the sentence imposed.
• The decision not to impose a SOPO involved judicial discretion based on necessity, and this court should not interfere unless the decision was plainly wrong.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the sentencing exercise with reference to the gravity of the offence, the degree of culpability, and the harm caused to the victim, as well as the risk posed to society. The court found that the judge correctly identified aggravating features including the extreme youth of the victim, breach of trust as a parent and babysitter, threats to the mother, the nature of the assault involving ejaculation, premeditation, and the offence occurring in the victim’s home.

The court rejected the prosecution’s submission that the starting point should have been four years' custody, distinguishing the cited authorities on their facts. However, it found that the sentence imposed was unduly lenient considering the significant psychological harm to the child and the mother, the high degree of culpability, and the risk of reoffending.

The court emphasised that harm extends beyond the direct victim to family members, and that the psychological impact on the child will be long-term despite the absence of physical injury or immediate distress.

Regarding the SOPO, the court held that the judge applied the incorrect test by focusing on dangerousness rather than necessity. Given the risk assessments and short custodial sentence without licence conditions, the court found a SOPO was necessary to protect the public and facilitate intervention.

The court considered double jeopardy principles, acknowledging the Defendant had already served part of his sentence and the distress caused by a second sentencing exercise. Taking this into account, the court proposed an effective sentence of 15 months imprisonment plus a SOPO.

Alternatively, the court offered a three-year probation order with specific requirements including residence restrictions, supervision, psychological assessment, and participation in rehabilitation and alcohol treatment programs. The probation order would obviate the need for a SOPO if accepted.

Holding and Implications

The court held that the sentence of five months imprisonment was unduly lenient both in duration and for failure to impose a Sexual Offences Prevention Order.

Taking into account double jeopardy, the court determined that the effective custodial sentence should be 15 months with a SOPO. However, as the Defendant consented, the court substituted the original sentence with a three-year probation order containing detailed supervision and treatment requirements, thereby removing the necessity for a SOPO.

The direct effect is the imposition of a longer and more structured sentence aimed at rehabilitation and public protection. No new legal precedent was established beyond reaffirming existing sentencing principles and the proper test for SOPO imposition.