Court of Appeal quashes excessive rape sentence and reduces it from 11 to 8 years due to error of principle.

THE COURT OF APPEAL

Sheehan J.

Edwards J.

Butler J.

Record No. CCA 336/2012

The People at the Suit of the Director of Public Prosecutions

V

T.V.

Appellant

Judgment of the Court (ex tempore) delivered 6th of December 2016 by Mr. Justice Edwards.

Introduction

1. In this case the appellant was convicted by a jury in the Central Criminal Court on the 18th of October, 2012, on a count of rape,

contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act, 1981 (the Act of 1981) as

amended by s. 21 of the Criminal Law (Rape)(Amendment) Act, 1990.

2. On the 26th of November, 2012, the appellant was sentenced to eleven years imprisonment, with the last three years thereof

suspended upon conditions, the sentence to date from the 18th of October 2012. He was also required to submit to a period of post

release supervision, and was placed on the sex offenders register. The appellant now appeals against the severity of his sentence.

The facts of the case

3. The detailed facts of the case are set forth in this Court’s earlier judgment delivered on the 8th of November 2016. However, they

may be summarised as fcomplainant in the case was Ms A.O’C. On the evening of Friday the 18th of December 2009 the complainant,

a young woman in her twenties, who was living with two other girls in a three bedroom duplex apartment in a suburb of Cork, had

been celebrating with some friends in advance of her birthday. They had visited a number of bars in Cork city. Having left the Bodega

bar in the early hours of the 19th of December, 2009 the group travelled back to the apartment in two separate vehicles, one of

which was a taxi and the other of which was a private car driven by a member of the group who, as designated driver, had not been

drinking. A O’C was in the first vehicle to leave, which was the taxi, and she was accompanied by three other girls. The remainder

travelled in the other vehicle, one of whom was J.F who was also living in the apartment with A.O’C., and who had the only key to the

apartment.

4. When the taxi arrived at the apartment, A O’C and her companions, not having a key themselves, were required to await the arrival

of the second vehicle, before they could gain admittance. As they were waiting another taxi arrived and two men got out. A O’C

engaged them in conversation and suggested to them that as she and her friends would be staying up for a while to drink, they were

welcome to call over. The two men, one of whom was the appellant, then went into their own house across the road from the

apartment.

5. J.F., duly arrived at about 3.15am and admitted A O’C and the rest of the party to the apartment. Shortly afterwards the appellant

and his companion arrived into the apartment, and they had bags with them containing some cans of beer. They were Hungarian. One

had a tight haircut and was very quiet. The other, the appellant, was more talkative, had dark hair and spoke good English.

6. While some of the girls retired, and to bed on mattresses laid out on an upstairs landing, A O’C stayed up drinking and listening to

music in the kitchen with J.F and some others including the two Hungarian men. At one point the appellant came over and placed his

hands on the complainant’s hips. He said he was a dancer in Hungary and that she didn’t know how to dance. The appellant tried to

move the complainant’s hips, but the complainant felt uncomfortable and removed his hands and walked away from him.

7. At approx 5.00am J.F. went upstairs to bed. The complainant followed her and chatted with her trying, unsuccessfully, to persuade

her to come back downstairs. The complainant then went downstairs herself and met S.McG, who was an Irish work colleague, and

returned to the kitchen with him. The only other persons downstairs at that stage were the appellant who was also in the kitchen,

and another girl who was on the telephone in the sitting room. The quieter Hungarian man had gone home a short time earlier. A O’C

concluded that the night was over and went back upstairs. At this point it was estimated to be 5.30am/5.45am.

8. Having gone upstairs to go to bed the complainant undressed, save for her underwear, and put on a nightdress. She then got into

bed and went to sleep. The next thing she recalled was waking up due to a stabbing pain in her vaginal area. She opened her eyes

and found a man’s body on top of her. It was the appellant and he was putting his penis in and out of her vagina, and breathing

heavily. The complainant’s evidence was that she had not physically resisted because she felt completely paralysed and that she

could not move or breathe. She had her nightdress on but it was pushed up, and her underwear had been removed. She recalled pain,

and focussing completely on trying to close her legs which she eventually succeeded in doing. After the appellant had stopped, the

complainant then lay there for a few minutes.

9. The next thing the complainant recalled was hearing some rustling at the end of the bed. She then got up, turned on the light and

told the appellant to leave the house, which he did. There was blood visible on the bedsheets and the appellant asked the

complainant if she was having her period. The complainant responded “No. Get out of my house”. The appellant then asked the

complainant if she had been a virgin, and the complainant just repeated “Get out of my house”. The complainant stated that the

appellant appeared worried. The appellant then dressed himself and left.

10. When the appellant had left the complainant found that she was bleeding quite a bit, so she put on underwear and applied a

panty liner and then went to J.F.’s bedroom and woke up J.F. The complainant was shaking and crying and she spoke to J.F. J.F., in

her testimony, characterised the A.O’C as hysterical. She just cried and complained repeatedly about being in pain, before eventually

falling asleep in J.F.’s bed. About an hour later A. O’C woke up. J.F. then called a doctor. The Gardai were also notified by one of A.

O’C’s friends, and two female Gardai later attended at the apartment and spoke to AO’C who was unwilling at that point to make a

formal statement as she was too distressed. A. O’C was prevailed upon to attend a sexual assault unit, which she did.

11. The complainant contacted the Gardaí again in mid May 2010 to indicate that she now wished to make a formal complaint. A

formal statement of complaint was taken from the complainant on the 29th of May 2010.

12. The appellant was subsequently arrested having attended a Garda Station voluntarily and by appointment. Following his arrest he

was detained, and was interviewed while in detention. In the course of being interviewed he admitted having sexual intercourse with

A O’C but said it was consensual.

13. The appellant did not give evidence at the trial.

The appellant’s personal circumstances:

14. The appellant was born in 1987 and was 25 years of age at the date of his sentencing on the 19th of November 2012. He had

been 22 at the date of the offence. He is originally from Hungary where his father, mother and brother still reside. He was living in a

suburb of Cork at the time of the offence and was working as a waiter in a restaurant.

15. The appellant had no previous convictions.

The impact on the victim

16. A O’C made a victim impact statement that was read into evidence at the sentencing hearing. In it she stated (inter alia):

"Before the 19th of December 2009, the life that I had imagined for myself for many years was starting to come to

fruition. I had a good job, a great network of friends, my health and. more importantly, my happiness. I'd worked hard

through college and school for many years and dedicated myself to building a successful life. On the night of the 18th of

December, when the accused raped me, that night that I had held so precious came crashing down around me.

Everything was in ruins around me and 1 was unable to put it back together. I feel I have been invaded in the most

inhumane and arrogant way. An unimaginable darkness has made its way into my life and it will plague me forever more.

My body and my privacy have been invaded in the cruellest and most reckless manner conceivable. My once happy and

positive mind set has to constantly battle with reoccurring dark and disturbing memories of the night I was raped.

Putting words on the months that followed the rape is very difficult for me. When I reflect on that time, every' day

seems like a haze. I was going through the motions of days and weeks, but had become very disconnected from the

reality of what had happened to me. My ability to feel was gone and I remained numb for many months. I couldn't even

feel my own hurt and pain for the loss I had suffered. It's as if these emotions were too overwhelming for me at the

time. Since then. I could never have imagined the changes that have came into my life, my motivation and focuses

have shifted from progression and getting ahead in life, to just being able to get up and get dressed in the morning.

Function in my day-to-day life was an ongoing struggle every single day. Some days, I had the energy for that struggle

and more days I had to surrender to my circumstances, leaving me feeling utterly hopeless and lost in my own life. I

feel unrecognisable to myself in many ways. I have always gotten great enjoyment out of an active social life. Now

being in busy' places makes me nervous and uncomfortable. I hate people touching off me. I hate them being in my

personal space. I'm constantly on edge and vigilant of danger. My mood can shift so much in any one day that I have

become unpredictable to myself. I'll battle through spells of depression, brought about by the loneliness of my

circumstances. For everyone around me. in the years that followed that night, life moved on. Mine, on the other hand,

remained stuck, as I felt I could not -- it was not possible --1 felt moving on was not possible until the judicial process

had ran its course. This justice process has come with its own burdens, the excruciating wait and the heartbreak when

the original date was not fulfilled, all of which left a resounding feeling of not mattering enough to be heard. Over the

course of this process. I had to disclose intimate details of my personal life to complete strangers. This has left me

feeling very vulnerable and humiliated. Friends have been compassionate and supportive throughout this process, but

my family have struggled to come to terms with what has happened to me and my approach has been a source of

discomfort for them and consequently has put a strain on our relationship.”

The sentencing judge’s remarks

17. In sentencing the appellant on the 26th of November 2016 the sentencing judge stated (inter alia):

“The most fruitful source of mitigation and mercy is an early plea of guilty coupled with genuine remorse. In this case

guilt was wholly contested every step of the way and the accused was convicted by jury verdict. He is entitled not to be

penalised for putting the prosecution fully on proof of its case, but he has thereby disqualified himself from the most

fruitful source of mitigation.

The prosecutrix returned home late at night with friends from a celebration of her birthday. As she entered her house a

taxi pulled up across the road with two Hungarian neighbours returning home. In party mood, she invited these men,

including the accused, a stranger, to join them. They stayed up in the prosecutrix's house for drinks. When in the course

of the evening the accused placed his hands on the prosecutrix, she rejected his advances. She went to bed in the early

morning and went to sleep.

About 6 am, the accused expressed an interest in the prosecutrix to another party goer and expressed an interest in

going up to her. He was discouraged from doing so. She went to sleep and woke to find the accused on top of her

penetrating her. I'm required by law to, one, identify the range of penalty available. Two, place the particular case

having regard to all its facts and circumstances at its appropriate place on that scale. And three, identify such factors

as may be found in favour of the accused and on the basis of these, discount from the figure arrived at in phase two

above.

The available penalty is obviously from suspended sentence to imprisonment for life. I take account of, one, the

inherently grave nature of the crime. Two, the effects on the victim. Three, the rape of the prosecutrix taking place in

her own bed, in her own house, a place where she was entitled to expect safety and sanctuary. Four, the abuse of the

hospitality gratuitously extended to a neighbour.

I assess the case as meriting a sentence of 11 years imprisonment and sentence the accused to that term to date from

the 1st of February 2011. In favour of the accused, I take account of the fact that he has no previous convictions

either in this country or in Hungary, has a good work ethic and will have to serve a significant sentence as a Hungarian

in an Irish jail. To take account of these factors I will suspend the final three years of the sentence on the accused

entering into a bond served in the sum of €1,000 to keep away from his victim in perpetuity. The bond may be entered

into before the prison governor.”

The Grounds of Appeal

18. The Notice of Appeal simply states that “[t]he sentence was in all the circumstances excessive. However, flesh is put on that

skeleton in the appellant’s written submissions wherein four specific complaints are made about the sentencing process engaged in by

the sentencing judge. The appellant complains that:

(a) The sentencing judge erred in law in assessing the gravity of the offence at as being at the high end for offences of

this nature.

(b) The sentencing judge erred in law in failing to take any or any adequate account of the fact that the appellant was a

foreign national.

(c) The sentencing judge erred in law in failing to take any or any adequate account of the fact that the appellant had no

previous convictions

(d) The sentence was excessive having regard to available comparators

Submissions on behalf of the appellant

19. The Court was referred in relation to complaint (a) to a judgment of the Court of Criminal Appeal delivered by Finnegan P in The

People (Director of Public Prosecutions v G.K. [2008] IECCA 110 (unreported, Court of Criminal Appeal, 31st of July 2008), where it is

stated:

“Having regard to the jurisprudence of this Court and of the Supreme Court the matters which determine the gravity of

a particular offence are the culpability of the offender, the harm caused and the behaviour of the offender in relation to

the particular offence.”

20. We were also referred to a passage from O’Malley on Sentencing (2nd Ed at papa 5-15) which further breaks this down into

intrinsic moral culpability based on mens rea, the harm done and the offender’s actual behaviour. Though it has not been cited in the

submissions this Court has expressly approved the passage in question in The People (Director of Public Prosecutions v Shaun Kelly

[2016] IECA 204 (unreported, Court of Appeal, 7th of May 2016). It is suggested that in terms of the many aspects of an accused’s

actual behaviour that can aggravate seriousness, of which a number are listed by O’Malley, relatively few apply in the case of this

appellant. That having been said counsel agreed in the course of exchanges with the bench during the appeal hearing that the fact

that the rape took place in the victim’s own bedroom was an aggravating factor, as was the fact that advantage was taken of the

victim’s vulnerability in circumstances where she had a consumed an estimated ten drinks over a long evening of celebrations in

connection with her birthday (as she was perfectly entitled to do.) Counsel submitted that while the fact that the rape had occurred

in the victim’s own bedroom in her own home while she was sleeping was unquestionably aggravating, it was less so than in the case

of a rape in the course of a burglary. In the present case the appellant had been invited into the house.

21. In relation to complaint (b), although it had to be acknowledged that the sentencing judge had stated that he was taking

account of the appellant’s foreign nationality, it was submitted that insufficient account was taken of it. The Court was referred to

The People (Director of Public Prosecutions v Wayne Bland (unreported, Court of Criminal Appeal, 21st December 1994) in support of

the proposition that incarceration of a foreign national without close relatives or immediate family in the jurisdiction from whom he

could receive visits represents additional hardship of which account should be taken.

22. In relation to complaint (c) it is suggested that insufficient account was taken of the fact that the appellant was of previous

good character and had no previous convictions. The Court was again referred to a passage from O’Malley on Sentencing (2nd Ed at

para 6-4) where the respected author, citing The People (Director of Public Prosecutions v Kelly [2005] 1 ILRM 19, suggests that this

factor should be afforded “very considerable weight” and suggests that significant credit may be afforded notwithstanding “single

acts of aberrant behaviour”.

23. Finally, in relation to complaint (d), we were referred to The People (Director of Public Prosecutions v W.D. [2008] 1 I.R. 308 in

which Charleton J had categorised sentences for rape as falling into three broad categories (a) those meriting sentences up to 8

years imprisonment (b) those meriting sentences of between 9 and 14 years imprisonment and (c) those meriting sentences of 15

years to life.

24. It was contended that the present case had been wrongly placed in the mid range and that it belonged more properly in the lower

range. Reliance was placed, inter alia, on Charlton J’s observation (at para 40) that:

“Leaving aside these factors of multiple counts, a number of victims and abuse of trust, there are clearly cases where a

sentence of ten years imprisonment can be appropriate for an individual instance of rape. However, a sentence of ten or

eleven years imprisonment appears to be unusual, even after a plea of not guilty to rape, unless there are

circumstances of unusual violence or premeditation.”

25. In further support of this contention counsel for the appellant has referred us to a November 2012 document “Recent Rape

Sentencing Analysis: the WD case and beyond” prepared by the Judicial Researchers’ Office which examined the sentences imposed in

all rape cases in this jurisdiction in the period between November 2010 and November 2012. It had found that:

There were three cases in which sentences of two years or less were imposed and two of these involved the rape of

women while they slept. In one the accused pleaded guilty with a resulting suspension of eighteen months of his three

year sentence. One pleaded not guilty and was sentenced to three years with one year suspended.

The mean was represented by seventeen cases attracting sentences of between three and eight years. The majority

(fifteen) received sentences of between five and seven years for rape. These included historic and more recent cases of

child sexual abuse that included rape and instances where there was a degree of violence, such as bruising of limbs or

pushing. In most such cases the accused pleaded guilty although this category included three pleas of not guilty. Cases

with not guilty pleas did not necessarily attract strikingly different sentences to cases with similar facts where a guilty

plea was entered.

There were twenty three cases in which sentences above the mean, ranging from nine to fourteen years, were

imposed. The accused pleaded not guilty in ten cases. In general, they involved a breach of trust, such as rape of a

daughter or family member, many counts, particular forms of violence, particular degradation or humiliation, or an

particularly egregious effect on the victim.

26. In addition, the Court’s attention was particularly drawn to a decision of this Court in a case of The People (Director of Public

Prosecutions v Power. [2014] IECA 37 (Court of Appeal, ex tempore, Birmingham J, 28th November 2014). Counsel for the appellant

suggested that this case, in which an initial sentence of ten years imprisonment with three suspended, for the rape of a woman in her

own home by an invitee to the house while she slept, was reduced to one of seven and a half years imprisonment with three

suspended. In that case the appellant had also fought the case, had no previous convictions and, while was not a foreign national,

had a history of mental health issues. It was suggested by counsel for the appellant in the present case that the Power case

represents a close comparator to the present case on its facts.

Submissions on behalf of the respondent

27. It was submitted that the sentence imposed by the sentencing judge was proportionate to the facts of the case itself. The

invasion of the victim's bedroom to perpetrate the rape itself constituted a gross violation of her privacy and security in similar terms

to that which occurred in The People (Director of Public Prosecutions) v. Adam Keane [2008] 3 I.R. 177 where a sentence of 10 years

imprisonment with 3 years suspended was imposed. While the appellant contended that the decision of the Court of Appeal in The

People (Director of Public Prosecutions) v Power means that the sentence imposed was excessive the appellant in that case had

mental health issues with which the Court had some sympathy.

28. In addition, the significant effect of the offence on the victim in this case, including the effect of having to give evidence in the

trial and her ongoing difficulties arising from the offence, were recounted by her on the 19th November, 2012 as part of her victim

impact statement. In those circumstances it was submitted that the sentencing judge afforded adequate consideration to the

mitigating factors whilst also setting a sentence which was appropriate to the seriousness of the offence and the effect of same on

the victim.

Analysis and Decision

29. Having carefully weighed the submissions made on both sides, and having considered the authorities and other materials opened

to us, we are satisfied that the sentencing judge erred in this case in placing this case too far along the scale of seriousness in

determining the headline sentence to be applied before discounting for mitigation. We are satisfied that a headline sentence of eleven

years was unusual and out of kilter with most comparators involving one off rapes without pre-meditation or the occasioning of extra

violence to the victim (beyond the inherent violation that is associated with every rape), even in cases where the case was fought.

While the respondent has sought to argue that the sentence, even if severe, was within the legitimate range of the judge’s

discretion, we are not satisfied that this was so.

30. Nevertheless, having regard to the circumstances of the crime, and particularly the harm done to the victim, this is a case that

on any view of it not only required a custodial sentence but a custodial sentence of some considerable length. However, that having

been said, even taking account of the aggravating factors of the rape having occurred in the victim’s own bedroom in her own home,

a place where above all she was entitled to expect that she would be allowed to sleep unmolested, and the fact that advantage was

taken of a degree of vulnerability on her part, the degree to which the case was aggravated was not at all as much as it would have

been if it had been committed in the course of a burglary, which was the situation in the case of The People (Director of Public

Prosecutions) v. Adam Keane on which the respondent relies.

31. Moreover, we note that in the case of The People (Director of Public Prosecutions) v. Power, relied upon by the appellant as a

comparator, the Director similarly placed reliance on the Keane case. However, Birmingham J, giving judgment for this Court, expressly

distinguished Keane. He said:

“19. The information on previous sentencing available from the ISIS website and from the decision in W.D. would indicate

that this sentence of ten years albeit in part suspended was higher than sentences that were generally imposed in cases

of this nature. The trial judge focused, and the debate here this morning has focused to a significant extent, on the case

of D.P.P. v. Adam Keane [2007] IECCA 119, and as it happens the sentence imposed by the trial judge is the same

sentence that was imposed in Keane by the Court of Criminal Appeal in acceding to an undue leniency review application

by the Director, brought from a sentence that had been imposed by the same sentencing judge. There has been

argument as to the extent to which it is a valid comparator.

20. In the Court’s view there are undoubtedly similarities between the two cases, but equally there are differences. It is

the case that the Keane rape was committed in the course of what was in effect a burglary, the entry of a dwelling

without permission and as the courts have made clear every burglary is a serious offence. Every burglary is potentially a

violent offence, but the commission of a rape in the course of an unauthorised entry of a dwelling does, it seems to this

Court, bring it into a very particular category of its own.

21. If one puts the Keane case to one side in the sense of not taking the view that it is a precise comparator to be

applied directly, but one simply to be considered along with other cases, then the sentence of ten years part suspended

does appear to be out of line. It is therefore the Court’s view that in imposing the sentence that was imposed, a

sentence of ten years imprisonment, and in failing to address the question of the relevance of the mental health issues

which were potentially relevant at two levels: relevant in the sense that it formed part of the background of the

individual who was being sentenced, but it also was potentially relevant in terms of how the person who was going to be

sentenced would cope in prison and how prison would affect them, that the sentencing court was in error.”

We consider Birmingham J’s remarks to be entirely apposite to the present case as well.

32. While taking counsel for the respondent’s point that no two cases are the same and that therefore comparators can only be of

limited assistance, we nevertheless agree with counsel for the appellant that the Power case represents a close comparator in this

instance, having regard to the many facts and circumstances that it has in common with the present case. We therefore are satisfied

that the sentencing judge erred in principle in determining upon a headline sentence that was too high in all the circumstances of the

case.

33. We are not, however, satisfied that there was any error on his part in assessing and weighing the mitigating factors. He correctly

indentified all of the relevant factors and we are satisfied that in effectively discounting by approximately 30% by suspending the last

three years he adequately reflected the available mitigation.

34. In circumstances where we have identified an error of principle it now necessary for this Court to quash the original sentence and

proceed to a resentencing of the appellant.

35. In accordance with established jurisprudence the Court invited the parties to submit to it on a contingent basis any materials that

they might wish to have taken into account in the event of the court finding an error of principle and setting aside the sentence that

was imposed by the sentencing judge.

36. In response to that a number of additional documents have been submitted on behalf of the appellant. These included a very

positive letter from the Industrial Manager at The Midlands Prison confirming in effect that the appellant is a model prisoner who is

trying to better himself while in prison; confirmation that the appellant has participated in raising money for charity while in prison, a

number of certificates in respect of completed courses including a Junior Certificate qualification in Spanish, and a number of positive

personal testimonials from friends and colleagues of the appellant. It is clear that the appellant is getting on as well as he can in

prison and is working diligently towards his rehabilitation. We are satisfied in the circumstances that it is appropriate to regard his

conviction for the present matter as a single, albeit a very serious, act of aberrant behaviour that was and is out of character with

his otherwise good conduct both before and since the offence.

37. In all the circumstances of the case we will reduce the headline sentence from one of eleven years to one of eight years

imprisonment. A 30% reduction on the headline sentence to reflect mitigation would require discounting by 2 years and 5 months (in

round figures) either by means of a straight discount or by the mechanism of suspending an equivalent portion of the sentence, which

was the mechanism chosen by the sentencing judge. However, in circumstances where he is doing well in prison, and to incentivise

his continuing rehabilitation, we have decided not to interfere with the 3 year period of suspension determined upon by the trial judge.

In effect, therefore, the appellant will now receive an effective discount of 37.5%.

38. Finally, we impose the same requirements as the court below in terms of post release supervision, and the requirement that the

appellant be on the sex offender’s register remains unchanged.