COURT OF CRIMINAL APPEAL JUDGMENT:DPP -v- Moustafa Iasmaeil
Neutral Citation: IECCA 36
COURT OF CRIMINAL APPEAL
Judgment was delivered on February 8th, 2012, by Mr Justice Finnegan, Mr Justice Moriarty and Mr Justice Hogan concurring.
JUDGMENT
A six-year sentence for taking a two-year-old child from his Irish mother and abducting him to Egypt was upheld.
BACKGROUND
The applicant, an Egyptian national, was the paternal uncle of a two-year-old Irish child, Daniel Faris Heaney, the son of Amir Ismaeil and Norma Heaney. Following the breakdown of their relationship, the child lived with his mother and grandparents, and had overnight visits with his father.
On one such visit on July 27th, 2011, his father phoned his former partner to ask her if the child could stay a second night. She agreed, but when she went to collect him two days later the child was not there and it was clear he had been abducted.
A Garda investigation discovered that he had been taken through Dublin airport on July 28th in girl’s clothing, with the use of a passport belonging to Mr Ismael’s four-year-old niece, and brought to the home of the Ismaeil family in Egypt, where he remains. He has been visited by his mother and members of her family, in return for handing over his passport. The visits caused great distress both to the child and the mother.
The appellant was arrested on his return to Ireland on August 1st, 2011. He did not give evidence at his trial, where he was convicted.
The maximum sentence under this section of the Act is seven years imprisonment, and trial Judge Pat McCartan allowed a reduction of one year to take account of the fact that the applicant had, up to this, a relatively good record. He also noted that a non-national would have a more difficult time in prison than an Irish citizen. The sentence was appealed on the grounds that it was unduly harsh, in that it was unusual to impose the maximum sentence, or almost maximum, allowed by law for the offence in question.
DECISION
The starting point is the examination of the essence of the offence as defined by law. Here, it involved the intentional and unlawful taking of a child from the lawful control of any person so as to keep him out of that lawful control. Each ingredient of this offence had clearly been met in this case.
It was hard to see how the actions involved here did not constitute the worst form of child abduction, to a country to which the Hague Convention of Child Abduction did not apply,
Mr Justice Finnegan said. The abduction was calculated and intentional. “The elaborate nature of the deceit, the tender age of the child, the element of false imprisonment and the permanent nature of the removal of the child are all gravely aggravating factors”.
While the applicant’s counsel had argued that the child had not been mistreated or taken abroad for the purpose of sexual exploitation, had this happened the applicant would have been charged with a much more serious offence, carrying a sentence of up to life imprisonment, the court said.
As an example of child abduction simpliciter, this fell within the very worst category of offences that might arise under this section of the Act. Not only did the applicant not plead guilty, he did not show genuine remorse and there was no evidence of any real or sustained effort to have the child returned to his mother.
In depriving the mother of the care and custody of her young child, her core constitutional rights had been breached. The rights of the victim and the public interest must be considered by ensuring that others would be deterred from such actions by the prospect of severe punishment. For all these reasons, the sentence imposed was entirely proportionate.
The court also registered its deep concern that a young Irish citizen was being detained with apparent impunity in a friendly country. It therefore took the unusual step of directing the registrar to send the judgment to the Minister for Foreign Affairs, so that he could transmit it to the Egyptian authorities who, it was hoped, would take appropriate action.
If the child was returned to his mother, the deterrence aspect of the judgment would have been met and it would be open to Mr Ismaeil to petition the Government for clemency.
Trevor Loughnane BL, instructed by Burke Hunt, solicitors, Cavan, for the appellant; Tara Burns BL instructed by the Chief Prosecution Solicitor, for the DPP.
The full judgment is available on courts.ie