Devlin, R. v

Factual and Procedural Background

The Appellant was convicted following a four-day trial of two offences: trespass with intent to commit a sexual offence contrary to Article 67 of the Sexual Offences (Northern Ireland) Order 2008, and sexual assault contrary to Article 7 of the same Order. The offences occurred in the early hours of 27 December 2019 when the Appellant entered the home of the Complainant, a 13-year-old girl, through an insecure window. He removed his clothing, entered the Complainant's bedroom where she was sleeping with her two younger sisters, and sexually assaulted her. The Appellant was intoxicated and claimed to have no recollection of the incident. The jury rejected his account and found him guilty on both counts. The Recorder of Londonderry imposed an effective sentence of three years’ imprisonment on the first count and 18 months concurrent on the second. The Appellant sought leave to appeal against sentence, which was refused by a single judge and renewed before the full Court of Appeal.

Legal Issues Presented

1. Whether the sentence imposed for trespass with intent to commit a sexual offence was wrong in principle or manifestly excessive.
2. Whether the sentencing judge erred by imposing a sentence for the preparatory offence that exceeded the sentence for the substantive offence.
3. Whether the trial judge penalised the Appellant for contesting the case.
4. Whether the trial judge failed to take account of risk to the public in sentencing.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the sentence was wrong in principle, asserting that the sentence for the preparatory offence (trespass with intent) should not exceed the sentence for the substantive offence (sexual assault).
• He argued that his intoxication prevented the formation of the necessary intent to commit a sexual offence.
• The Appellant also raised grounds that the trial judge penalised him for contesting the case and failed to consider risk to the public.

Respondent's Arguments

• The Respondent submitted that there is no legal principle preventing a sentence for a preparatory offence from exceeding that of the substantive offence, especially where the substantive offence was interrupted.
• The Respondent argued that the sentencing judge was entitled to impose concurrent sentences reflecting the gravity of the offences and the facts.
• It was contended that the trial judge properly considered the risk of reoffending and did not penalise the Appellant for contesting the case.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court emphasized the gravity of the headline offence of trespass with intent to commit a sexual offence, noting the deliberate and calculated nature of the Appellant’s conduct, including entry through an insecure window, removal of clothing, and targeted entry into a bedroom of young girls. The Court accepted the jury’s rejection of the Appellant’s intoxication defence and his professed lack of recollection, highlighting the skepticism about his claimed amnesia given the deliberate actions taken. The Court acknowledged the severe impact on the Complainant and her family, including displacement from their home. It rejected the proposition that a sentence for a preparatory offence must not exceed that of a substantive offence, recognizing the preparatory offence’s potential seriousness. The sentencing judge’s approach, including concurrent sentencing and consideration of all evidence, was upheld as just and proportionate. The Court also dismissed grounds alleging penalization for contesting the case and failure to consider public risk, noting the sentencing judge’s explicit reference to risk assessments and professional reports.

Holding and Implications

The Court REFUSED LEAVE TO APPEAL and DISMISSED THE APPLICATION, affirming the sentences imposed by the Recorder of Londonderry. The decision directly upholds the original sentencing without setting new precedent, confirming the appropriateness of the sentence in light of the offence’s gravity, the Appellant’s culpability, and the harm caused.