Court of Appeal dismisses rape sentence appeal, upholding ten-year term as proportionate despite violence and domestic setting.

THE COURT OF APPEAL

Record No. 25/2017

Birmingham P.

Mahon J.

Edwards J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

E.D.

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 25th day of June 2018 by Mr. Justice Mahon

1. The appeal against the conviction of the appellant on the 30th November 2016 of one 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, as amended by s. 21 of the Criminal Law (Rape)

Act 1990 was dismissed by this court on the 20th June 2018. This judgment relates to the appellant’s appeal against his sentence of

ten years imprisonment to date from the 3rd May 2016, and which was imposed on the 30th January 2017.

2. The appellant was convicted of raping the complainant on the 23rd July 2014 after he forcibly entered her apartment, took her

downstairs to the outside area of the apartment and there raped her. The appellant and the complainant were previously known to

each other and had on one previous occasion engaged in consensual sexual intercourse. As the complainant was being forced down

the stairs of her apartment she was pushed by the appellant as he maintained a firm grip on her shoulder. She sustained some mild

bruising from this rough treatment. The complainant was fearful for the safety and wellbeing of her daughter who had armed herself

with a kitchen knife before barricading herself into her own bedroom in fear of the appellant, and while the appellant attempted to

force his way into her room. She telephoned 999 for assistance, and when gardaí arrived they found the daughter in a highly

distressed state and still holding the knife for her protection.

3. The following grounds of appeal are relied on by the appellant:-

(i) failing to identify the proportionate sentence or follow the recommended best practice when determining same; by

identifying the headline sentence at twelve years (in respect of the crime) and thereafter discounting that sentence to

one of ten years without having identified the correct and proportionate sentence for this particular offence for which the

appellant was convicted having regard to the gravity of the offence and his personal circumstances and thereafter

applying any mitigating factors which may be relevant;

(ii) erroneously assessing the gravity of the offence at being at the high end offences of this nature;

(iii) imposing a disproportionate sentence in the circumstances of the case;

(iv) failing to give any or any adequate discount for the mitigating and personal circumstances of the appellant and the

fact that the appellant was a foreign national, his age and his extremely difficult childhood;

(v) failing to take account of the penal objective of rehabilitation;

(vi) failure to suspend any portion of the sentence to allow for rehabilitation of the appellant;

(vii) imposing a sentence which was disproportionate and inconsistent with sentences in similar type cases.

4. The learned sentencing judge explained the manner in which he proposed approaching the task of sentencing in the following

terms:-

“In order to construct a proportionate sentence, the sentencing judge must follow a two step procedure. First, the

Court must decide what the appropriate starting sentence should be, having regard to the seriousness of the offence,

and the range of available penalties. Secondly, the Court must adjust the starting sentence to take account of any

mitigating or excusing factors given on behalf of the defendant. The object of the exercise is not to impose a sentence

that is appropriate for the crime, but rather to impose an appropriate sentence for the crime because it has been

committed by that offender. The seriousness of the offence is to be measured by a consideration of the moral

culpability of the offender for the offence by reference to the harm done. This requires the Court to take account of

particular circumstances of the crime which bear on the moral culpability of the offending and any other aggravating, or

mitigating factors relevant to the commission of the offences, including the harm done to the victim”.

5. The learned sentencing judge considered as aggravating factors the fact that the appellant presumed that he was entitled to have

sex with the complainant because she had consented to such activity on a previous occasion, the violation of the complainant’s home

and the fear caused to the complainant’s daughter, the fact that the offence had contributed to the complainant’s relapse into

alcoholism and the fact that the appellant had a previous conviction in 2010 for assault causing harm to his then partner and mother

of his two children.

6. The learned sentencing judge also referred specifically to a number of mitigating factors including the appellant’s very difficult

childhood, that he had a low level of intellectual functioning, that imprisonment will deprive him of much of his relationship with his

two children, the fact that the appellant was a foreign national, albeit someone who has lived in this country for over fifteen years

and has considerable family support within this jurisdiction, and his relative youth.

7. The learned sentencing judge fixed the headline sentence at twelve years. He reduced that to ten years to take account of the

mitigating factors and he allowed the appellant credit for approximately nine months already spent in custody. He was unable to

identify any basis for suspending a part of the sentence.

8. Although the learned sentencing judge did not expressly identify the location of the offence on the scale of gravity, his approach

to sentencing was, in the court’s view, otherwise impeccable, and was generally in compliance with the principles enunciated by the

Supreme Court in its judgment in DPP v. M. [1994] 3 I.R. 306 which was as follows:.

“The fundamental principle of proportionality;

- the sentence should be proportionate to the crime committed but also to the personal circumstances of the

accused;

- the general impact on victims is a factor to be considered by the court in sentencing;

- a grave offence should attract a severe sentence but attention must also be paid to individual factors, such as

remorse, which may in principle reduce the sentence;

- in considering the sentence, it is appropriate to consider the offence and the circumstances of the accused but

not in order to determine whether the accused should be incarcerated to prevent future offending.”

9. At the sentencing hearing in the court below Sergeant Gerry Dunne read the Victim Impact Statement prepared by the

complainant. It described in disturbing detail the extent of, and the relatively prolonged nature of, the attack perpetrated by the

appellant. The statement includes phrases such as “He treated me like a dog” and that the trial had made “me feel more like a

criminal than the man who raped me”. She also described how her daughter had, since the incident declined to stay with her out of

fear. Overall, the statement is a chilling reminder of the dreadful effects of the aftermath of the crime of rape.

10. The court was referred to comparator cases by the appellant, particularly DPP v Keane [2008] 3 I.R. 177 and DPP v. Power [2014]

IECA 37 a decision of this court on the 28th November 2014. Both appeals resulted in the alteration of the sentenced imposed in the

courts below. In Keane a fully suspended sentence was replaced with one of ten years with the final three years suspended. In Power

a sentence of ten years with the final three years suspended was replaced with a seven and a half year sentence with the final three

years suspended. Other than the fact that both cases concerned the rape of women in their own homes the so called comparator

cases and the instant case are significantly different in many important respects. The victims in both the comparator cases were not

subjected to violence other than the rape itself. In Keane the court was dealing with the substantial alteration of a sentence and the

incarceration of an individual for a significant period of time in circumstances where the sentencing judge at first instance had

permitted the offender to avoid custody altogether. A factor of particular relevance in Power is that an error of principle in the original

sentence was identified by reason of the failure “to address the question of the relevance of the mental health issues…”, in arriving

at the appropriate sentence.

11. In the instant case the sentence of ten years imprisonment was undoubtedly on the higher end of the range reasonably within the

discretion of the learned sentencing judge. However, it was nevertheless, the court believes, within that range and as such will not

be interfered with. This was a serious rape accompanied by some violence and a rape carried out, in effect, in the complainant’s home

and which involved the complainant’s daughter necessarily barricading herself in her room having armed herself with a kitchen knife in

an effort to protect herself from being attacked by the appellant.

12. The court will in these circumstances dismiss the appeal.