Smith, D.P.P. (People) v. [2008] IECCA 130 (24 October 2008)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Irish Court of Criminal Appeal You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Smith, D. P. P. (People) v. [2008] IECCA 130 (24 October 2008) URL: https://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_130.html Cite as: [2008] IECCA 130 [ New search ] [ Printable RTF version ] [ Help ] Smith, D. P. P. (People) v. [2008] IECCA 130 (24 October 2008) THE COURT OF CRIMINAL APPEAL Kearns J. Budd J. Birmingham J. [96/08] BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND GARY SMITH APPLICANT JUDGMENT of the Court (ex tempore) delivered the 24th day of October, 2008 by Kearns J. The applicant in this case pleaded guilty on 15th January, 2008 to a single count of possession of child pornography which was found in his possession on 11th January, 2007. -2- It is quite clear that what the investigating police came across was the end result of years of addiction to this form of activity on the part of the applicant. What they recovered comprised very nearly 15,000 images of children in various states of undress and some fairly graphic sexual imagery and some indeed showing children engaging in sexual acts of one sort or another. It is a very serious offence and s.6 of the 1998 Act provides for a maximum five year sentence. As it transpired when the case came before the sentencing court on 11 th March, 2008 the sentencing judge imposed a three year term of imprisonment with two years post-release supervision to follow. He did so having heard evidence of various relevant matters. Firstly, that the appellant was born on 12 th June, 1963. He is a single man. He is now forty-five years of age. He is originally from England but moved to this country in 1994. He had various jobs but eventually was employed by a computer firm in Sligo where he has worked, and worked very successfully, until his activities in this regard came to light. He is a man with no previous convictions. There are certain aspects of the case that perhaps should be emphasised. Repugnant as his activities were, there is no evidence that Mr. Smith was in any sort of ring of paedophiles or that he made any effort to meet with any children depicted in the pictures which he was accessing. It is clear he had a sick obsession extending over an eight year -3- period which started with adult pornography and then graduated to child pornography some eighteen months before his arrest. What makes the offence more reprehensible is the fact that he used his employer's computer facilities to facilitate these activities and that in itself was a significant breach of trust on the part of Mr. Smith. When he was initially interviewed, as a result of information which the gardai had received concerning activities in Germany and elsewhere, Mr. Smith failed initially to come clean about the entirety of this activity. On the contrary he immediately made his way home and tried to dump the hard discs and CDs on which most, if not all, of this imagery was stored, but as it turned out the police arrived just in time to seize this material and of course it was all duly examined and evaluated by them. The learned sentencing judge did follow the very proper course of giving due regard to the severity scale for such offences which has been indicated in a number of cases. Despite the gravity of this crime it is true to say that in the ordinary course a custodial sentence will not necessarily follow such an offence, notably where it is a first offence. In the appellant's submissions references are made to Mr. O'Malley's book on sentencing law, in particular the second edition at page 295, where that view is expressed very clearly by the distinguished author. In arguing that the sentence was excessively severe in this case counsel pointed out the fact that a medical report was available to the sentencing judge, which -4- had been commissioned between the date of the plea and the date of sentence, from a Dr. Paul O'Connell indicating that Mr. Smith had sustained some sort of head injury with acquired brain damage in adolescence. Dr. O'Connell put forward the theory that this could have had the effect of disinhibiting Mr. Smith and rendering him more prone to what might loosely be described as addictive type behaviour. Obviously this was evidence which would point significantly in the direction of mitigation and suggesting that a more lenient view could be taken of the case. That evidence was not challenged or controverted in the sentencing court. Counsel for the appellant indicated that most of his appeal is directed to arguing that the sentencing judge should have adjourned the case given that Dr. O'Connell's evidence appeared to be unchallenged, the court invited counsel to consider whether or not he would discuss with his client whether or not the court should, as an alternative approach to the case, deal with it on the basis that the contents of this report may not have been fully taken into account so that his client could, if that was his wish, have this matter finalised and finished today. Counsel having consulted with his client indicated his preference was to adopt the latter course. The Court is satisfied that the contents of Dr. O'Connell's report were not fully taken into account and had they been fully taken into -5- account they would have certainly resulted, in the Court's view, in a lesser sentence being imposed. The Court, however, is of the view that the sentencing judge was correct in imposing a custodial sentence in this case having regard to the gravity of the offence, the period of time over which it was going on, the number of images which were downloaded and the circumstances in which this activity was being carried on. The Court is of the view that in relation to the term of three years imprisonment it will halve that sentence to one of eighteen months and suspend the balance of eighteen months of that sentence. The Court would also strongly recommend that Dr. O'Connell's recommendations be put into effect during the remainder of the term of imprisonment. In other words the appellant while serving his custodial sentence should be given every appropriate medical facility to address his particular problem. The Court will leave intact the post-release supervision order which was made by the sentencing judge. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_130.html