Court of Appeal reduces rape sentence by 12 months and adds supervision to incentivize rehabilitation.

THE COURT OF APPEAL Record Number: 220/18 Edwards J. Kennedy J. Donnelly J.

BETWEEN/ THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

- AND -

S. C.

APPELLANT JUDGMENT of the Court delivered on the 25th day of February 2020 by Ms. Justice Isobel Kennedy.

1. The appellant was convicted of two counts of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, one count of rape contrary to s.4 of the Criminal Law (Rape)

Amendment Act, 1990 and three counts of attempted oral rape contrary to Common Law in respect of victim B. The appellant pleaded guilty to four sample counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990 as amended, in respect of two further victims; A and C. The appellant received a total sentence of 15 years’ imprisonment.

2. The offending relating to A extended initially for a period of 2 years and 6 months, then for a period of 3 years and 3 months, concerning B for 2 years and 7 months, and concerning C for 2 years and 3 months. There was a period when the appellant was abusing both B and C for a period of 1 year and 8 months.

3. This Court delivered judgment on sentence on the 19th December 2019 and found that the trial judge erred in the manner she structured the sentences imposed. The matter was adjourned to enable the appellant to furnish this Court with material concerning the appellant’s current health. This judgment may be read in conjunction with the judgment delivered in December 2019.

4. In view of the errors identified in this Court’s judgment delivered previously, we now proceed to re-sentence the appellant. Since that date, we have received a Prison Governor’s report and medical reports concerning the appellant.

5. Having reviewed the transcript of the evidence, it is the opinion of this Court, that the appellant’s offending conduct was grave indeed. He abused three young girls over a protracted period, abusing two girls during the same time frame. He abused his position of trust as a father and as a father figure. The impact of his actions was of an understandably severe order. In light of the egregious nature of the offending conduct we consider that the trial judge nominated the appropriate headline sentence in each instance.

6. We have considered the new material furnished to us together with the matters urged in mitigation on behalf of the appellant in the court below. The mitigating factors were, in our view, quite limited, apart from the plea of guilty to the offending concerning A and C.

7. The Prison Governor’s report indicates, inter alia, that the appellant has enhanced privilege status in custody, he works in the laundry and attends the gym. A medical report of October 2019 indicates that he has a recurrence of an illness for which he may require radiotherapy. However, this appears from the report to be somewhat uncertain.

The issue of ill health is relevant in the context of mitigation to the extent that the illness will make incarceration more difficult for an accused/appellant to endure. In the present case, this does not seem to be the case.

Decision

8. While we have concluded that the judge erred in the manner she approached certain aspects of the sentencing process, we are of the view that the sentences ultimately imposed, having considered the mitigation and the appellant’s present position and with due regard for the principle of totality, are the appropriate sentences, with one caveat.

9. We are satisfied that this is a case whereby we should structure the sentence in order to incentivise rehabilitation. We are influenced in this respect by the appellant’s pleas of guilty, albeit at a late stage in the proceedings. In order to do so, we will suspend the final 12 months of the sentence on terms on which we will hear submissions.

10. We also consider this a case which calls for post-release supervision and in this respect we impose a period of 3 years post-release supervision.