Court refuses DPP appeal, upholding suspended sentence for 15-year-old rapist due to exceptional circumstances.

COURT OF CRIMINAL APPEAL

22CJA/2004

McCracken J

Gilligan J

O’Leary J

In the Matter of Section 2 of the Criminal Justice Act 1993

And In the Matter of Bill No. CC053/02

Between:

The People (at the Suit of the Director of Public Prosecutions)

Applicant

AND

GD

Respondent

Judgment of the Court delivered by McCracken J on the 13th day of July 2004

The Court has already indicated that it would refuse this application. The reasons for such refusal are set out hereunder.

The Respondent pleaded guilty to one single charge of rape under s.4 of the Criminal Law Amendment Act 1990 and was sentenced to

three years detention. At the time of sentencing the Respondent had already spent almost two months in detention and the learned

trial Judge suspended the entire balance of the sentence. The Director of Public Prosecutions has applied to the Court pursuant to s.2

of the Criminal Justice Act 1993 to review the sentence.

The circumstances of this case are quite unusual. The offence took place on 12th November 2001, at which time the Respondent was

15 years of age. The Respondent and a girl of his own age, together with another friend who was only 12 years old, had gone to a

flat where the 12 year old’s grandmother lived. On the way they had gone to an off-licence and purchased some beer which they

brought to the flat with them. During the evening the Respondent drank a considerable quantity of beer, particularly considering his

age. At some time fairly late in the evening the 12 year old’s grandmother returned to the flat with a male friend who also had had a

considerable amount to drink. Further drink was consumed and a dispute developed between the Respondent and this man, but it

does not appear to have been particularly serious. Eventually the man, who by this stage was quite drunk, decided that he was going

to go home and left the flat to get a taxi. The Respondent went with him, and before he could find a taxi the Respondent pulled him

into an area where containers were parked, attacked him and raped him.

A garda patrol car arrived on the scene, having been alerted by a member of the public that there was some sort of trouble, and the

Respondent was arrested. The victim was apparently not able to give a coherent account of what had occurred until the next

morning, but he then made a formal complaint to the Gardaí. When the Respondent was interviewed by the gardaí in the presence of

his father he admitted the offence, and showed considerable remorse.

The approach to be taken by this Court when considering an application under s.2 of the Criminal Justice Act 1993 has been clearly

set out in a number of earlier judgments, and in particular in DPP v. Byrne [1995] 1 ILRM 279. In that case it was emphasised that the

onus of proof rests on the Director of Public Prosecutions to show that the sentence was unduly lenient, and that the Court of

Criminal Appeal should only intervene if there was a substantial departure from what would be regarded as the appropriate sentence.

The question at issue here, therefore, is whether a suspended custodial sentence under the circumstances of this case should be

considered a substantial departure from the appropriate sentence.

In considering the sentence in the present case the learned trial Judge placed great reliance on the judgment of Fennelly J in this

Court in DPP v. NY [2002] 4 IR 309. In that case the Court considered whether and in what circumstances a non-custodial sentence

should be imposed on a conviction for rape. The learned trial Judge in the present case commented in relation to that case:-

“The probation officer, who furnished an extensive report, I think proceeded on the basis that this was a case where a

non-custodial sentence could not or would not be imposed, but the Court of Criminal Appeal seems to have directed at

the starting point of one’s consideration as to whether it can be dealt with on that basis or not.”

This Court is satisfied that the Court of Criminal Appeal did not give any such direction in the NY case. In fact, that case emphasised

that a custodial sentence should normally be imposed for such a crime. At page 315 of the report of that judgment it was said:-

“The fact that the crime of rape normally calls for the imposition of a custodial sentence has now been established for

many years. The cases are well known. The crime of rape is one of the most serious in our criminal calendar. Normally,

it will merit a custodial sentence.

Nonetheless the Court imposing sentence must not deprive itself of the possibility of identifying the exceptional case

where a custodial sentence may not be warranted. It is a truism that the Courts must sentence the offender and not

the offence.”

Earlier, in a passage quoted with approval in the NY case, this Court held in DPP v. R O’D [2000] 4 IR 361 at page 363:-

“It is important that this Court should make clear at the outset that in the absence of a statutory provision to that

effect, it is never mandatory on a trial judge to impose a custodial sentence. This principle was recently re-affirmed by

this Court in DPP v. McCormack [2000] 4 IR 356. Needless to say that does not mean that a trial judge is at large as to

whether he or she imposes a custodial sentence or not. Not to impose a custodial sentence in a particular case may

amount to an error in principle which would be capable of correction by this Court. But there is no question of an

absolute rule that for certain types of offences a custodial sentence is mandatory.”

The principle behind these decisions is quite clear. In considering the appropriate sentence in a rape case, the sentencing judge must

approach his deliberations on the basis that normally a custodial sentence will be imposed. In considering the appropriate sentence,

however, he is not precluded from examining the particular circumstances of the case to consider whether such circumstances are so

exceptional as to justify a departure from the norm. Of course in the majority of rape cases, the question of a non-custodial sentence

will never arise and the only consideration for the sentencing judge will be the length of the custodial sentence. However, there are

cases in which the sentencing judge ought to consider the possibility of a non-custodial sentence. These are case in which there may

be special or exceptional circumstances which are frequently related to the position of the accused. This has been emphasised in the

NY case where it was said in the passage quoted above “It is a truism that the Court must sentence the offender and not the

offence”. In similar vein, in DPP v. McCormack [2000] 4 IR 356 it was said at page 359:-

“Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts

but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence

for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range

of possible penalties is dependant upon those two factors.”

In the present case, while the learned trial Judge may have somewhat misinterpreted the NY case, nevertheless this Court is satisfied

that he did in fact apply the correct principles. He had the facts that the Respondent pleaded guilty and at a very early stage made a

full statement admitting his involvement in the rape of the victim and further that at the earliest possible opportunity the Respondent

was extremely remorseful for his involvement in this crime. He had before him a detailed and very helpful report from the Probation and

Welfare Service which was very positive. The Respondent had also attended a group treatment program for adolescent boys who

have sexually abused run by the Southside Inter-Agency Treatment Team at Our Lady’s Hospital for Sick Children, and the learned

trial Judge had before him a report from the principal psychologist of that organisation which again was very positive. Both these

reports emphasised that the treatment program was proving very beneficial and that the Respondent was remorseful and had taken

seriously his need to avail of treatment and counselling. It was anticipated that the would have a further 14 months of treatment

under the program which, as it was only for adolescents, he would not be able to join if he served any substantial prison sentence.

The reports also emphasised that, at the time the offence was committed, he was only 15 years of age and was understandably in a

state of confusion over his sexuality. The evidence was that, since the offence was committed, the Respondent had accepted his

homosexuality and had entered into a homosexual relationship, and importantly that his parents had accepted the situation and were

supportive of him.

In the view of this Court the learned trial Judge was correct in identifying the present case as one in which there was exceptional

circumstances. He had to balance the undoubted fact that there was violence involved in this crime with the fact that this was an

isolated event committed by a 15 year old who was trying to come to terms with his homosexuality. While the Court must have every

sympathy for the unfortunate victim of this rape, the Court can see no useful purpose which could be served by imposing a custodial

sentence on the Respondent. The balance of his sentence has been suspended on terms that he remains under the supervision of the

Probation and Welfare Services for a period of three years from the date of sentence, and that he will continue his treatment. Should

he fail to do so, he has the spectre of the three year sentence hanging over him. In addition, he has been placed on the Sexual

Offenders Register which is in itself a punishment. He has served a short period in prison on remand, which should act as a sufficient

deterrent to ensure that he will not breach his bond.

This Court would emphasise again that the circumstances of this case were unusual and exceptional, as they must be to justify a

non-custodial sentence. The learned trial Judge has taken into account the relevant considerations and this Court does not consider

that the sentence, in these exceptional circumstances, was unduly lenient. The Court refuses the application of the Director of Public

Prosecutions.