The Court of Appeal has dismissed a Director of Public Prosecutions application to review as unduly lenient a sentence imposed on D.M. for one count of defilement of a child under 15.
In an ex tempore judgment delivered on 15 April 2024, the court said the sentence was “a very lenient one indeed” but ruled that the legal test for intervention had not been met. D.M. had already served the one-year prison term and been released. The court said it did not believe justice would be served by sending him back to prison.
The sentencing judge nominated a four-year headline sentence, reduced it to three years to reflect mitigation, and suspended the final two years. The suspended portion was conditional on D.M. having no contact with the injured party or her family, keeping the peace and being of good behaviour, and attending counselling. The Court of Appeal noted that a suspended sentence remains a sentence and that its operational period was two years.
The DPP’s challenge initially raised six grounds, but the issues at the hearing narrowed to the headline sentence and the suspension. The DPP accepted that the four-year headline sentence could fall within the sentencing judge’s discretion. The appeal focused on whether the one-year custodial term was inadequate for the seriousness of the offending.
The court said the DPP had to show a substantial or gross departure from the appropriate sentence, outside the sentencing judge’s discretion. It considered the sentence lenient, and said a greater custodial element, perhaps about two years, might have been imposed if the judges were sentencing at first instance. But that was not the test on review, and D.M. had been released in February 2024.
The judgment said the injured party was 14 at the time of the offending, with an age difference of just under 10 years. It described two incidents and sexually explicit Snapchat communications. The injured party’s impact statement described effects on her education, family life and mental health. The judgment also recorded D.M.’s guilty plea, lack of previous convictions and psychological conditions including ADHD and autism spectrum disorder, as well as an assessment of low risk of reoffending.
The court dismissed the application. It also observed that applications to review sentences of this duration should be pursued with expedition, and that the DPP should seek a priority hearing in such cases.