The Director of Public Prosecutions v McGrath

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL [2026] IECA 59 Court of Appeal Record No. 64/25 Edwards J McCarthy J Burns J BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -AND- DAVID MCGRATH APPELLANT JUDGMENT of the Court delivered on the 21st day of April 2026 by Mr Justice Patrick McCarthy 1. This is an appeal against severity of sentence. The appellant received an effective sentence of eight and a half years’ imprisonment with three years suspended in respect of three separate bills, each of which related to the possession of child pornography. The notice of appeal refers only to two of these bills: Bill No. DUDP1485/2021 and Bill No. DUDP1386/2023. The third bill, Bill No. DUDP1470/2022, arose as a result of the same search as that which gave rise to the charge in Bill No. DUDP1386/2023 in circumstances where analysis results of electronic equipment became available at different points in time. 2. In respect of Bill No. DUDP1485/2021, the appellant pleaded guilty on the 26th of November 2024 to one count of possession of child pornography contrary to section 6(1) of the Child Trafficking and Pornography Act 1998; on the 30th of September 2018, the appellant at his address in Dublin had in his possession, on a HP laptop, 1,730 images defined as child pornography. Of those images, 708 depicted boys and girls who appeared to be between 1 to 8 years old engaging in sexual activity, including masturbation, oral sex, and anal and vaginal penetration. There were 1,022 images depicting boys and girls of that age range with exposed genitals or anal regions. 3. On Bill No. DUDP1386/2023, the appellant pleaded guilty to a similar offence; on the 16th of December 2020 at the same address, the appellant had in his possession 2,241 images similarly defined on a Dell Latitude 5480 laptop. Of those images, 695 showed children or persons depicted as children engaging in or witnessing sexually explicit activity. The children ranged from infants to approximately 10 years old. The images showed children being orally, anally and vaginally penetrated by adults. A further 1,546 images showed children or persons depicted as children with exposed genital or anal regions. Bill No. DUDP1470/2022 pertained to a smartphone which the appellant had in his possession on the same occasion containing 445 images defined as child pornography. 97 of the images depicted children engaging in sexually explicit activity and 348 images depicted children with exposed genital or anal regions. Previous Convictions 4. The appellant has two prior convictions from Gorey District Court both of which are for the possession of child pornography. On the 8th of March 2017 the appellant was given 2 four-month and six-month respective sentences, both of which were suspended in full. As a result of those convictions the appellant became subject to the monitoring and supervision provisions of the Sex Offenders Act 2001 (as amended) for a period of five years between the 7th of March 2017 and the 7th of March 2022. 5. The offences the subject of Bill Nos. DUDP1386/2023 and DUDP1470/2022 occurred after the appellant’s arrest and interview in respect of the offences the subject of Bill No. DUDP1485/2021 and whilst investigations were ongoing. Sentencing 6. A somewhat exceptional course was taken by counsel (on instructions) in the Circuit Court in that it was submitted that the sentencing judge could or should identify the headline sentence, or sentences, and reflect such mitigation as existed by a substantial suspended sentence rather than by a straightforward identification of a term of years reduced to an appropriate extent from the headline sentence. In the event that the sentencing judge was to see fit to impose consecutive sentences (recognised to be almost inevitable) on one or more of the bills, the question of totality also arose. Counsel has proceeded on the same basis here and in light of that fact, so do we. 7. The maximum sentence in respect of these offences is five years’ imprisonment. In respect of Bill No. DUDP1485/2021, the appellant was sentenced to a period of imprisonment of four years and six months to date from the 28th of February 2025. In respect of Bill Nos. DUDP1386/2023 and DUDP1470/2022, the appellant was sentenced to a period of four years’ imprisonment concurrent to each other and consecutive to the lawful expiration of the sentence imposed in respect of Bill No. DUDP1485/2021. The final three years of said sentences were suspended under the conditions that the appellant: (1) keep the peace and be of good behaviour for the period of his imprisonment and for a further period of six years from the date of his 3 release; (2) place himself under the supervision of the Probation Service for a period of six years from the date of his release from custody; (3) engage with Probation Service and follow all directions; (4) engage with such therapeutic services as required; (5) engage with such work placement as recommended by the Probation Service; (6) permit An Garda Síochána to review any electronic devices in his possession at any time unannounced; (7) advise An Garda Síochána of what devices he has in his possession including IP addresses and IMEI numbers of such devices. 8. We cannot set out in extenso the comprehensive observations of the sentencing judge – which addressed all relevant factors. The principal mitigating factors can be identified as follows: (1) in relation to the search on the 30th of September 2018, the appellant had provided passwords for computers and phones and confirmed that the devices on which the images were found were his – the transcript is not absolutely clear as to the extent of his cooperation at the time of the second search but we think it proper to infer that he afforded a similar level of cooperation on that occasion; (2) aspects of his personal circumstances; (3) a bona fide expression of remorse; (4) guilty pleas, albeit pleas which could not be described as early – the weight to be given to these pleas must be seen in the context of the existence of coercive evidence of guilt; (5) matters arising by reference to the psychological report of one Emma Tyrell (to which we now turn). 9. Whilst we also cannot set out the psychological report in extenso, the salient points are that the appellant is said to have demonstrated insight into his offending behaviour and took responsibility for it, the presence of mental health “challenges” or disorders including depression and anxiety, what is described as sexual, emotional and physical abuse as a child, and a willingness to engage in rehabilitative treatment. Very significantly, however, the conclusion of that report is that there is a high risk that the appellant will offend again. This is not, as a matter of law, an aggravating factor but it is relevant to the extent of mitigation. 4 10. The principal aggravating factors are as follows: (1) the fact of previous convictions, the sentences imposed thereon having been suspended, inter alia, on the basis that he would not further offend; (2) whilst we usually speak of previous convictions of a similar type as an aggravating factor, by definition one is actually concerned with previous offences, so that even though he had not been charged with the offence of the 30th of September 2018 at the time he committed the second and third (which were effectively part of the same transaction) those offences were aggravated not only by the convictions of 2017 but by the offence committed on the 30th of September 2018. One might say that the aggravation was of greater significance in all cases because he had failed in the obligations which he had as a result of the suspension of sentences imposed by the District Court in 2017, and in respect of those of the 16th of December 2020 he was under investigation for the offence committed on the 30th of September 2018 and yet still offended again. Grounds of Appeal 11. The appellant seeks to appeal the severity of the sentence imposed on the following grounds: – i. The Learned Sentencing Judge erred in fact and/or in law in imposing a headline sentence that was disproportionate in all the circumstances. ii. The Learned Sentencing Judge erred in fact and/or in law in giving excessive weight to the aggravating features. iii. The Learned Sentencing Judge erred in fact and/or in law in failing to give sufficient weight to the mitigating factors. iv. The Learned Sentencing Judge erred in fact and/or in law in failing to give adequate or any regard to principles of totality in sentencing. 5 v. The Learned Sentencing Judge erred in law and/or in principle in imposing a sentence which was excessive in the particular circumstances arising. vi. The Learned Sentencing Judge erred in law and/or in principle in imposing a sentence that was disproportionate in all the circumstances. Initially a criticism was made that the sentencing judge had approached the principle of totality incorrectly, but that point is not now being pursued. At the hearing, there was ultimately one straightforward ground: it was contended that the sentence after taking mitigation into account (by which, in the context, was meant mitigation by way of suspension of a period) was excessive or disproportionate to the point that the sentencing judge had fallen into an error of principle. Analysis and Decision 12. There are a number of authorities on sentencing that have been repeatedly addressed in earlier cases. We accordingly confine ourselves to referring to The People (DPP) v. AM [2021] IEСA 322 and The People (DPP) v. Anthony Ryan [2024] IECA 321. This Court pointed out in Ryan that: “In The People (DPP) v. A.M. [2021] IECA 322 this Court conducted an analysis, for the purpose of seeking to ascertain whether or not a clear trend as to the appropriate levels of sentence could be discerned, or, perhaps, to put the matter in another way, whether, for practical purposes, guidelines as to the approach which should be taken in sentencing could be developed. That analysis did not bear fruit …”. In Ryan, we also quoted with approval the following passage from The People (DPP) v. Bryan O’Byrne [2013] IECCA 93: 6 “Valuable guidance is to be obtained from the leading case of Director of Public Prosecutions v. Carl Loving [2006] 3 I.R. 355 in which a sentence of five years imprisonment with two years suspended imposed in the Circuit Court on a plea of guilty was reduced to one year by the Court of Criminal Appeal. Delivering the judgment of the court, Fennelly J. set out a number of factors which should be taken into account: the seriousness and number of the images; the circumstances and duration of the activities; the interaction of any dependence on alcohol and other drugs; whether the images were shared, distributed, circulated or commissioned (albeit that any such matter could be a separate and more serious offence); and finally whether the individual had created material or shared it with children or had improper relations with children. On the other hand, mitigating factors were whether the accused accepted responsibility for the events including a plea of guilty, albeit that in many such cases there is little scope for plausible denial. Nevertheless it is relevant if the accused has facilitated garda inquiries, relieved them of the necessity to prove their case, and seemed genuinely cooperative. Fennelly J. also observed that in the case of a first offence the court should at least consider the possibility of a wholly suspended sentence. It is worth elaborating upon this point. Since the offence of possession of child pornography is often the reflection of the proclivities and appetites of the offender, then any professional assessment of the offender’s attitude and state of mind is valuable. In particular, any assessment of the extent to which the offender genuinely recognises that his conduct is wrong, and is willing to engage in appropriate therapy and treatment, and does so, may be important. In such circumstances, it may be appropriate to consider suspending a portion of the sentence or imposing a supervision order under the Sex offenders Act 2001 (hereinafter “the 2001 Act”) on terms which would require the offender to engage both with probation services, and any treatment recommended 7 and supervised by them. This approach is arguably consistent with the fact that the 2001 Act specifically requires a sentencing court to consider the possibility of imposing a supervision order. This approach is, arguably, consistent with the fact that s. 28 of the 2001 Act requires a sentencing court to consider the possibility of imposing a supervision order.” 13. As established in AM, pornography of this type can be placed into the following categories: Category 1 Child sexually explicit images, involving a child under the age of 17 engaged in or witnessing sexual activity inclusive of oral, vaginal or anal intercourse and masturbation; Category 2 Child exposure, involving a child under the age of 17 where the genital and/or anal region of the child is exposed; and Category 3 Cartoon or animated images, videos or computer-generated images of a child or children involved in sexual activity or where the focus of the image or video is a child's genital or anal region. Of the images in question, the appellant had in his possession: Bill No. DUDP1485/2021: 708 images of category 1 and 1,022 images of category 2. Bill No. DUDP1386/2023: 695 images of category 1 and 1,546 images of category 2. Bill No. DUDP1470/2022: 97 images of category 1 and 348 images of category 2. Thus, arising from the two searches, the appellant had in his possession 1,500 images of child sexually explicit images, involving a child under the age of 17 engaged in or witnessing sexual activity inclusive of oral, vaginal or anal intercourse and masturbation (category 1) and 2,916 8 images of child exposure, involving a child under the age of 17 where the genital and/or anal region of the child is exposed (category 2). 14. In the absence of guidelines, we must make a judgement in accordance with our cumulative experience and by reference to established principles of sentencing generally (on the evidence and with reference to aggravating and mitigating factors) as to whether or not there was an error in principle – and for the avoidance of doubt, no such error could occur if the sentencing judge acted within her margin of discretion. Comparators are of some, but only modest, assistance in that task. We consider that the cumulative sentence (involving an element of consecutivity) was neither excessive nor disproportionate and that there was no error of principle. We accordingly dismiss this appeal. 9