The Court of Appeal has refused a Director of Public Prosecutions application to review as unduly lenient the sentences imposed on Martin Arkins for two child pornography offences.
In an ex tempore judgment delivered on 11 June 2018, Mr Justice Mahon said the sentences were “undoubtedly lenient” and less than members of the court might have imposed at first instance. But the court concluded they remained within the sentencing judge’s discretion and refused to intervene.
Arkins pleaded guilty at Kells Circuit Criminal Court in February 2017. For possessing child pornography for distribution, he received four years’ imprisonment. For a separate possession offence, he received three years. The sentences ran concurrently from 9 November 2017, with the final 18 months of each suspended for three years after release. The resulting custodial term was two and a half years.
The DPP argued that the volume and gravity of the material, its sharing with third parties, and the later offending after a gap of about five years supported a finding of undue leniency. The court recorded that the respondent had pleaded guilty at an early stage, made full admissions and co-operated with gardaí. The sentencing judge had also noted that he had no previous convictions and considered mitigating and personal circumstances.
The judgment described two investigations. In the first, a laptop seized from Arkins’s home in September 2009 contained 70 video clips, 65 of which depicted young boys engaged in sexual activity, as well as still images. The judgment said he had inadvertently transferred a number of images to a friend’s computer and later confirmed sharing movie files with third parties.
In the second investigation, devices seized in April 2016 contained images and videos, including material depicting children under 15 and some under 10. Arkins was arrested in August 2016 and accepted responsibility for the material identified. The judgment said some material had been shared.
The DPP also raised whether the sentences could have been consecutive, given the separate offences and the years between them. The court noted submissions about the respondent’s brief engagement with therapeutic services and subsequent re-offending. It also recorded the respondent’s argument that the DPP should have made a case for consecutive sentences before the sentencing court.
Applying the established test for sentence reviews, the Court of Appeal said the DPP had to show a substantial departure from the appropriate sentence. It held that the unusual features of the case and the extent of the admissions and co-operation meant the sentences fell within the sentencing judge’s discretion. The application was refused; the concurrent sentences remained in place.