R v QD Director of Public Prosecution's Reference (Number 6 of 2019)
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 16 May 2019 |
| Neutral Citation | [2019] NICA 23 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 16 May 2019 |
1
Neutral Citation No: [2019] NICA 23
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE10887
Delivered: 16/05/2019
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
v
QD
________
DIRECTOR OF PUBLIC PROSECUTION’S REFERENCE
(NUMBER 6 of 2019)
________
Before: Morgan LCJ, Stephens LJ and Treacy LJ
________
Stephens LJ (delivering the judgment of the court)
Introduction
[1] This is a reference by the Director of Public Prosecutions for Northern Ireland
under Section 36 of the Criminal Justice Act 1988 as amended by Section 41(5) of the
Justice (Northern Ireland) Act 2002. At the hearing of the reference we granted leave
to challenge, as unduly lenient, the sentence of five months imprisonment imposed
on 28 November 2018 by HHJ Kerr, QC (“the judge”) on the respondent, whom we
anonymise as QD for an offence committed at the end of May 2011 of sexual assault
on a child under 13 contrary to Article 14 of the Sexual Offences (Northern Ireland)
Order 2008. Automatically, without any order of the court by virtue of Sections 80
and 82 of the Sexual Offences Act 2003 (“the 2003 Act”) notification requirements are
imposed on the respondent for the appropriate notification period. Also without
any order of the court by virtue of the Safeguarding Vulnerable Group (NI) Order
2007 the respondent was included on the children’s barred list. However, during the
sentencing exercise the prosecution sought, but the judge declined to make, a sexual
offences prevention order (“SOPO”) under section 104 of the 2003 Act. By this
reference the DPP contends that both the period of imprisonment and the failure to
impose a SOPO were unduly lenient.
[2] The respondent had appealed his conviction but that appeal was dismissed
by this court on 1 February 2019 under citation [2019] NICA 7.
2
[3] In this judgment so that the child’s identity should be protected, as the Sexual
Offences (Amendment) Act 1992 requires, we have not given his real name.
Furthermore, we have anonymised the names of his mother and father. We draw
the attention of anyone hearing or reading this judgment to the prohibition on
identifying the victim of a sexual offence of this kind.
[4] Mr Mateer QC and Ms Walsh appeared on behalf of the prosecution and
Mr Greene QC and Mr Magill appeared on behalf of the respondent.
Factual Background
[5] The respondent is the father and MC is the mother of a boy whom we shall
call Jack. Jack’s parents separated in August 2008. Jack resides with his mother. At
the end of May 2011 when Jack was 2 years and 7 months old, an arrangement was
made between his parents that the respondent would babysit for a few hours whilst
MC was at work. Upon her return from work the respondent left MC’s flat in a rush
without saying goodbye and appearing to be really nervous. MC found that Jack
was in his pyjamas bouncing up and down on the bed. She asked him if he had had
a good time with his father to which he replied that he had. She then asked him
what he had been doing with his father and he said that both of them had been
playing with their penises though he used a different word to describe that part of
their anatomy. He also said that his father had poured milk on him and that the
milk had come from his father’s penis. It appeared to MC that Jack did not
understand that there was anything wrong with what he had described. She
stripped off Jack’s pyjamas checking for any physical injuries including to his anus.
There were none. Jack’s mother was shocked by what she had been told and she
telephoned the respondent recounting what Jack had told her. He initially denied it
but then replied that she knew who he was which was not going to change. He also
stated that if you accept that then they could be together as a family. MC explained
that this statement was a reference to events in 2008 when he had shown her
pornographic images on a computer of a very old man having sex with a girl who
was at the most five years old. She stated that when she had been shown these
images she had been told by the respondent that normal sex did nothing for him.
[6] After the incident the respondent told MC that if she told anyone he would
get her “cut into little pieces” and that he “knew the right people.”
[7] It is apparent that the incident involved Jack being encouraged to or at the
very least not being dissuaded from exposing and playing with his own penis whilst
the respondent watched for his own sexual gratification, exposed his penis and then
masturbated so that he ejaculated over Jack. The touching which was the subject of
the assault was the ejaculate landing on Jack. There was no physical harm to Jack
who had been left in an excited state having been led to believe that what had
occurred with his father was a positive experience.
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