Court of Criminal Appeal dismisses appeal against rape sentence, upholding trial judge's discretion on sentencing severity.

COURT OF CRIMINAL APPEAL

149 of 2008

Finnegan J

Hanna J.

McCarthy J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

RICHARD FINN

APPLICANT

Judgment of the Court delivered on the 29th day of July 2009 by Finnegan J.

The applicant pleaded guilty before the Central Criminal Court to two counts as follows:-

Count No. 1.

Rape contrary to common law and as provided for by section 48 of the Offences against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act

1981.

Count No. 2.

Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

The applicant was sentenced to terms of imprisonment of twelve years on each count. He seeks leave to appeal against sentence. In short on behalf of the

applicant it is submitted that the learned trial judge erred in determining where on the scale of seriousness of offences of this type this offence occurred and

in failing to have appropriate regard to the personal circumstances of the applicant.

Circumstances of the Offences

The applicant pleaded guilty to Count 1 on the 25th February 2008 and to Count 2 on the 25th April 2008. The circumstances of the offences were set out

by Detective Inspector O’Boyle on the latter date.

Ms M.M. left her home on the 22nd July 2007 at 7.20 a.m. to go to work. She is a Polish national. She was then twenty three years of age. Her path took

her past her local church. She was grabbed from behind and pulled into the church car park. She screamed. The applicant struck her with his fist to the

right side of her face knocking her to the ground. He pulled her to her feet and took her to a garden area in the church ground. He forced her to take off her

trousers. He forced her to touch and move her hand on his penis and this lasted for some five minutes. He then forced her to take his penis in her mouth.

He required her to repeat these actions on a number of occasions. He attempted to penetrate her vagina with his penis but failed to do so. He then took his

mobile phone and photographed her vagina and breasts. After that he again required her to use her hand and her mouth and again attempted vaginal

penetration with his penis and failed. It was 8 a.m. He ordered her to get dressed and was taking her to another part of the church grounds when she

attempted to escape but the applicant caught up with her. In a different part of the church grounds he again forced her to remove her trousers. He took away

her shoes and socks to prevent her running away. He again required her to take his penis in her hand and her mouth. He made a further attempt to

penetrate her vagina with his penis and on this occasion was successful. He allowed her to dress and then walked away having told her to stay where she

was for a further five minutes as he knew where she lived. The victim stayed there for a further ten minutes and then returned home and told her husband.

The incident in total lasted between two and two and a half hours.

Impact on Ms M.M.

Ms M.M. has returned to Poland. Because of the applicant’s plea it was not necessary for her to return to Ireland and she did not do so. She was deeply

traumatised by the events. She was unable to obtain counselling because of the non-availability of a Polish speaking counsellor in Dublin. She did receive

counselling on her return to Poland. She was unable to return to work for one month following the offences. She is a catholic and found it upsetting that the

events occurred in church grounds. Because of her religion and her personal approach to certain forms of sexual activity her ordeal was particularly

harrowing. She found the oral sex element particularly distasteful and upsetting. By nature she is shy and disliked removing her clothing for any purpose.

She found the medical examinations distressing.

She was examined by Michael Dempsey, clinical psychologist, on 6th March 2008. She reported to him that she had never had oral sex and that she found

it disgusting and believed it not to be natural. She was traumatised when she attended an identity parade some two months after the rapes. She had

suffered from sleep difficulties and nightmares. She had flashbacks to the rapes when intimate with her husband. She changed her job and her house

following the occurrences. She was unable to go out alone and afraid to go out in the dark even in company. She lost her sense of personal safety. She

described her life as having changed forever, that she will never be the same, that she will never forget.

The conclusion of Mr Dempsey was that at that date Ms M.M. was suffering from post-traumatic stress disorder for which she required counselling.

The Applicant

The applicant was nineteen years of age at the time of the offences. A report of Professor Michael Fitzgerald, Psychoanalyst was introduced on behalf of

the applicant. In the opinion of Professor Fitzgerald the applicant suffers from attention deficit hyperactivity disorder. The applicant expressed to him a

sense of guilt and remorse. Persons with ADHD are more likely to get involved with alcohol and drugs and the applicant has an alcohol and drug problem.

He was drinking from age thirteen and taking hash at the same time and at age sixteen moved on to cocaine. Because of his ADHD he had problems at

school and in his education.

In his past the applicant has minor public order convictions only. He had a history of employment.

The sentencing hearing

The applicant was sentenced on the 28th April 2008. The learned trial judge listed the following as aggravating features:-

1. The filming of the victim’s vagina and breasts.

2. The victim’s distress at the fact that the mobile phone with photographs had not been recovered.

3. The violation of the victim on consecrated ground which offended the victim’s strong Polish Catholic faith.

4. The multiplicity of the offences involved.

5. The time scale over which the offences were perpetrated.

6. The subjecting of the victim to a form of sex which she found offensive.

The applicant’s problem with drink and drugs

The learned trial judge held they afforded no mitigation.

The learned trial judge took into account the following:-

1. The pleas of guilty and the dates upon which they hade been made.

2. The lack of previous convictions.

3. The applicant’s remorse which he accepted as genuine.

4. The learned trial judge identified the offences as meriting a term of imprisonment of fifteen years but discounted the same for the mitigating factors which

he identified to twelve years on each count to run concurrently.

The applicant’s submissions

On behalf of the applicant considerable reliance is placed upon the decision in The People (Director of Public Prosecutions) v Drought [2007] I.E.H.C.

310 as supporting a submission that the sentence imposed by reason of its severity was in error of principle.

As remarked by Geoghegan J. In the People (Director of Public Prosecutions) v Stafford [2008] I.E.C.C.A. 15 the exercise conducted by Charlton J. in

Drought is useful but no two cases are the same. However, the exercise carried out in Drought should not be approached on the basis that it establishes

a system of tariffs. As McCarthy J. said in The People (Director of Public Prosecutions) .v. Shannon [1988] I.R. 250:-

“The court has been referred to a number of decided cases which contain, within themselves, a litany of like offences and the varying sentences imposed

in respect of them, in England and in New Zealand. Helpful though any legal principles to be gained from these cases are, the sentences themselves, in a

myriad of single instances are of no guidance. I accept the several propositions advanced by the Chief Justice and identified with those of Lord Lane L.C.J.

in R. v Billam [1986] 1 W.L.R. 349, and I recognised the need to give guidance to trial judges as to the matters to be taken into account when assessing

the penalty appropriate in any given case. I do not subscribe to what is apparently the view in England and in New Zealand that there should be any

particular minimum standard; there is a maximum – penal servitude for life. The trial judge subject to due consideration of the matters specified by the

Chief Justice, and taking into account what further matters may properly appear to be relevant in the particular case, should have a true judicial discretion

as to the sentence appropriate in any case.”

Also of relevance are the dicta in The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250 of Finlay C.J.:-

“The crime of rape must always be viewed as one of the most serious offences contained in our Criminal Law even when committed without violence

beyond that constituting the act of rape itself. In Attorney General v Conroy [1965] I.R. 411 this court stated that the nature of the offence was such as

to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence. The act of forceful rape not only causes

bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and

sometimes of life long duration. In addition to those damaging consequences, rape can distort the victim’s approach to her own sexuality. In many

instances rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease and a possibility of a pregnancy and of a birth,

whose innocent issue could inspire a distress and even loathing utterly alien to motherhood. Rape is a gross attack upon the human dignity and the bodily

integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.”

Finlay J. also doubted the appropriateness for an appellate court to appear to be laying down any standardisation or tariff of penalty.

The decision in The People (Director of Public Prosecutions) v Drought, while a useful exercise, must not be considered as establishing categories of

rapes with an appropriate range of sentences. Rape is a most serious offence. Each case must be approached on the basis that rape is a serious offence

carrying a maximum sentence of life imprisonment. The circumstances of the offence, the circumstances of the offender and the aggravating and mitigating

circumstances attending the same must be considered with a view to arriving at an appropriate sentence. The learned trial judge correctly carried out this

exercise. He identified the aggravating circumstances and arrived at an appropriate sentence, a term of fifteen years imprisonment which while severe was

not so severe as to be an error of principle.

On behalf of the applicant it is further submitted that the following circumstances require to be taken into account:-

1. The plea of guilty.

2. The absence of previous relevant convictions.

3. Genuine remorse.

The matters mentioned at 2 and 3 are matters appropriate to be taken into account and were taken into account by the learned trial judge. With regard to

the plea of guilty it is the case that the evidence against the applicant was damning. There was strong DNA evidence. In that sense the plea of guilty merits

little weight. The offences were committed on the 22nd July 2007. The plea to Count No. 1 was entered on the 25th February 2008 but the plea to Count

No. 2 was not entered until the 25th April 2008 and the court has regard to those dates. However a plea of guilty which relieves a complainant on a charge

of rape of the ordeal of giving evidence must generally be regarded as having some value. The plea in this case was taken into account appropriately by the

learned trial judge.

Finally it is submitted on behalf of the applicant that his personal circumstances outlined above must be taken into account – he suffers from ADHD and as

such was more likely to abuse drink and drugs. The court is not satisfied that this is a mitigating factor. The applicant did express remorse and the court

accepts that the expression was genuine. However in all the circumstances the reduction in the sentence from fifteen to twelve years adequately, and

indeed generously, takes into account the plea of guilty and the genuine remorse.

Disposition

The court is satisfied that the sentence of twelve years imposed by the learned trial judge in the circumstances of this case falls within the range of

appropriate sentences in all the circumstances. Accordingly the court refuses the applicant leave to appeal against sentence.