Court of Appeal dismisses appeals against rape sentence severity and undue leniency for a 16-year-old offender.

THE COURT OF APPEAL

[250 CJA/17]

[259/17]

[2019] IECA 65

The President

McCarthy J.

Kennedy J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECTUIONS

RESPONDENT

AND

KAMIL LUKASZEWICZ

APPELLANT

JUDGMENT of the Court delivered on the 1st day of March 2019 by

Birmingham P.

1. On 14th July 2017, after a contested trial in the Central Criminal Court, the

accused was found guilty by a majority verdict of the offence of rape. On 23rd

October 2017, he was sentenced to a term of five years imprisonment with the final

two years of that sentence suspended on certain terms and conditions. The Court

also provided for a post-release supervision order.

2. The accused lodged an appeal against conviction and sentence, and in turn, the

Director of Public Prosecutions has sought to review the sentence imposed on

grounds of undue leniency. All matters were listed before the Court, but at that stage,

it was indicated on behalf of the appellant that he was withdrawing the appeal

against conviction. Thus, this Court has been faced with what are, in effect, cross-

appeals, the accused contending that the sentence imposed was too severe and the

Director contending that the sentence was unduly lenient. It is in these

circumstances that for convenience, Mr. Lukaszewicz is referred to as the accused

throughout this judgment.

3. The accused in this case was born on 16th May 1998, and so was sixteen years

and two months on the date of the rape. The injured party was born in May 1999,

and so was just a year younger than the accused.

4. On 24th July 2014, the accused invited the injured party to go to a ‘session’ that

was being held that evening at a house of a friend of his. The accused and injured

party had been in contact over Facebook Messenger over a number of weeks

starting in May 2014. Following Facebook contact, they made arrangements to meet

up at a local supermarket early on the evening of 24th July 2014 with a view to going

on from there to the house where the ‘session’ was to be held. The parents of the

young person who lived in the house where the session was to take place were

away on holidays. The house party was attended by a number of teenagers and

young adults and it appears that the injured party was one of the youngest in

attendance. When she first arrived at the party, she took three shorts of vodka in

quick succession and was then given a glass of vodka with some Coke in it. She was

not used to drinking alcohol and she felt unwell after these drinks.

5. There was evidence that she was seen out in the garden of the house, that she

was very drunk and that her head was wobbling. She was observed to have vomited

outside. There was evidence that after this, she was brought back into the house by

the accused and that she lay down on a couch, lying against him. According to

observers, she was cuddling and some said that she kissed him. There was

evidence that when she got up to go upstairs to lie down, that she vomited again as

she got up off the couch. She was observed vomiting again on the stairs and there

was evidence that she was unable to walk up the stairs unaided as she was

wobbling, vomiting, and had to be supported by the accused. The accused said that

he brought her upstairs to lie her down in an effort to assist her. He brought her,

initially, to a box bedroom where she was put lying on a single or camp bed. There

was evidence that other young people at the party became concerned as to her

whereabouts and went upstairs. They found the door to the box room closed. They

banged on the door and the accused replied that he was looking after her and that

he would be down later. There was evidence that she was sick again in that room

also. Subsequently, however, the accused brought her to the main bedroom in the

house where there was a double bed. This was the en suite bedroom of the absent

householders.

6. The evidence of the complainant was that she remembered being in the room,

that she remembers being drunk, that she remembers feeling weak and unable to

move, that she fell asleep because she was so drunk and that the accused was on

the bed with her. Her next recollection was that when she woke up, she was face

down on the bed, the appellant was on top of her and was penetrating her vagina

with his penis. The injured party said that she was crying and asked him to stop, but

that he continued with sexual intercourse.

7. There was evidence that some of the young men who had been downstairs

became concerned about her as they had heard footsteps when she moved from the

box room to the main bedroom. They came back up the stairs looking for her and

banged on the door of the main bedroom to gain entry. There was also evidence,

some of it conflicting, that a number of the young people went out onto a roof with a

view to gaining entry through a window, but in any event, ultimately, some of them

got into the bedroom and the accused left the room. The complainant was described

as being in a comatose state.

8. When the matter was reported to the Gardaí and the accused was interviewed, he

contended that the sexual activity with the complainant was consensual. The

defence case mounted at trial was to the same effect.

9. At the sentence hearing, senior counsel on behalf of the accused, who, at that

stage, was not the senior counsel who appeared at trial, canvassed the possibility of

a non-custodial disposal. Having reviewed the facts of the case, the sentencing

Judge commented that the circumstances in which the offence occurred were

significant because both parties were minors in the eyes of the law at the time the

offence was committed. The accused, if prosecuted at the time, would have been

dealt with under the Children Act 2001. In a situation where the sentence hearing

was taking place more than three years after the offence had been committed, the

Judge referred to the decision of the Supreme Court in the case of DPP v.

Donoghue [2014] 2 I.R 762, where Dunne J. had spoken about the special need for

expedition in cases involving minors. The Judge referred, too, to the decision of this

Court in the case of DPP v. JH [2017] IECA 206. He felt that had the appellant been

sentenced at a point in time close to when the offence was committed, that he would

have been sentenced to a period of detention. Had the offence been committed by

an adult, he would have seen it as a mid-range offence likely to attract a sentence in

the region of seven years imprisonment. The Judge then proceeded to impose the

sentence that he did which is now the subject of challenge from both sides.

10. In contending that the sentence was too severe, counsel on behalf of the

accused draws attention to the provisions of the Children’s Act and says that the

sentence imposed, and in particular, the net sentence of three years to be served,

interfered with the educational progress of his client to an extent that was greater

than necessary. By the time the matter came before the sentencing Court, the

appellant was pursuing a third-level degree at Maynooth University. Counsel on

behalf of the Director acknowledges that particular considerations arise when a

Court is sentencing a minor, or in this case, sentencing in respect of an offence

committed by a child. However, she says that the Judge over-focused on the age of

the offender and failed to have regard to the gravity of the offence. She stresses the

fact that there were significant aggravating factors present, instancing the very

vulnerable and drunken state that the injured party was in, something which was

obvious to many of those at the house party. She points out that there was an

element of planning involved from an early stage in the evening and that this was not

a case of an adolescent losing control to passion, as passion took hold. She points

out that given that the case was contested on the basis that the complainant had

consented, and indeed initiated the sexual activity, that the mitigation which a plea of

guilty would have provided is wholly lacking.

11. Counsel on behalf of the Director in the course of her submissions, told the

sentencing Court that this was undoubtedly a very difficult case. This Court would

agree with that observation. Had there been a plea of guilty at an early stage,

counsel might well have been in a position to minimise the disruption of the

accused’s education which a significant custodial sentence would cause, though a

custodial sentence of some length was always likely. If, on the other hand, the

accused had been some years older, then a much more severe sentence would

have been inevitable. However, in the circumstances that prevailed, in the Court’s

view, the task of sentencing was approached by the High Court Judge with

conspicuous care and attention.

12. In the view of the Court, the significant aggravating factors that were present in

what was by any standards a very serious case, meant that there was no scope for a

less severe sentence. For that reason, the Court has no hesitation in dismissing the

appeal against severity.

13. In the case of the undue leniency aspect, a somewhat more severe sentence

might well have been considered in this case. On an assessment of the gravity of

this offence; the appellant's moral culpability was high in light of the element of

planning, the injured party's vulnerable condition, his persistence in engaging with

her sexually notwithstanding her condition and continuing to so despite confrontation

by others. However, it is necessary to take into account in this assessment not only

the general circumstances of the offence but also the particular circumstances

bearing on moral culpability which are particular to an offender. In the instant case,

the accused's age is an extenuating factor where the Court was being called on to

sentence a 19-year-old pursuing a third-level degree course for an offence

committed as a sixteen-year-old, we do not believe that the balance struck by the

sentencing Court was an impermissible one.

14. Accordingly, we will also dismiss the undue leniency application.

15. In summary, then, both applications before the Court are refused.