Court of Criminal Appeal quashes unduly lenient rape sentence and substitutes ten years imprisonment with suspended term.

THE COURT OF CRIMINAL APPEAL

CCA no.: 134CJA/10

O’Donnell J.

Moriarty J.

White J.

Between:

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

Appellant

V

Gary Kinsella

Respondent

Judgment of the Court delivered on the 25th day of July 2012 by O’Donnell J.

1 At about 9.00 p.m. on the 7th August 2008, a typically dull summer’s evening, a young woman of Italian origin who was working in a

professional firm in Dublin was walking home from her gym on Aungier Street in Dublin. It had been drizzling and she was carrying an

open umbrella. She was small in stature and of slight build. As she crossed the bridge at the canal she passed a man who seemed to

be on a phone but who addressed a remark to her to the effect “how are you” and also said something that she did not understand

but she heard the word “sexy”. She ignored him and kept on walking and turned on to Clogher Road in Crumlin. Up to this point there

was little to distinguish this from the type of offensive incident that, regrettably, many women encounter on a regular basis. What

followed was every woman’s nightmare.

2 The man was the respondent, Gary Kinsella. He was 26 years old and a soldier in the Army. He is a strong and well built man.

According to reports submitted during the sentencing hearing, he was in a steady relationship which was sexually active. He claimed

to have had a large number of sexual partners in his life, perhaps over 50, of which he could name around 40. Prior to his current

relationship, he described having numerous women he could call at short notice with a view to having sexual intercourse outside a

relationship context. He also described to the probation services numerous casual sexual encounters while abroad. He had five

previous convictions in the District Court: an offence relating to the unauthorised taking of motor vehicle, a count of using

threatening and abusive behaviour in a public place, two counts of intoxication in a public place, and one count of failing to surrender

to bail contrary to s. 13 of the Criminal Justice Act 1984. On the day in question, the respondent had been drinking with friends in the

Temple Bar area and taking drugs including cocaine. It appears that he was a regular drug user. He told the clinical psychologist that

he and his friends had met a hen party from London and that he kissed four of the women and that he “may have” gone upstairs with

one of them. He said this was his first time being unfaithful to his current partner. He left the premises at 9 p.m. but could not recall

how he came to be at the canal.

3 The respondent began to follow the victim. She noticed this and crossed the road. The respondent continued to follow her. She

crossed the road again and noticed that he did the same thing and began to get very worried. She noticed that the side of the road

that she was on had many large buildings with vacant houses and she wanted to cross the road to the side with houses which

appeared occupied. Things had reached the point where her plan was to go and ring the bell in one of the houses and raise the alarm,

but at that stage Gary Kinsella came up behind her, grabbed her arm, pulled her hair and dragged her towards the middle of the road.

She was screaming for help and at that stage he told her that he would kill her. Every time she screamed he said “shut up” and that

he “would kill her”. He then pulled her hair and started to beat her about the face, leaving her with severe bruising and a fracture of

the nose.

4 Gary Kinsella dragged his victim into the grounds of what she described as a “big house” and which was later identified as the

parochial house attached to the church grounds. There was a large garden. The victim was screaming and crying and Gary Kinsella

continued to tell her to shut up or he would kill her. She told the court that she believed she was going to die. He pulled her jeans off

her and pulled her by the ankles to a corner area where there were bushes. She begged him “please don’t hurt me” and said she

would not follow him if he left. He told her “shut up or I’ll kill you” and then raped her vaginally and orally. The victim also gave

evidence that she was raped anally. Although this was not included in the charges to which the respondent ultimately pleaded guilty,

the evidence was given in the trial. She said that she was absolutely terrified.

5 A passerby who was walking down the road had observed a man pushing a screaming woman across the road. He rang the gardaí

and alerted them. Two other passersby independently saw an abandoned handbag, gym bag and open umbrella on the footpath and

also called the guards. The gardaí arrived in an unmarked car and ran into the grounds of the parochial house. As they approached

the bushes, they heard a rustling and a muffled scream and saw a man stand up and try to run away. It was Gary Kinsella. They

chased him and caught him. His first words were “I know her. I was with her all evening.”

6 Gary Kinsella was arrested and brought to the garda station. In his initial interviews he maintained that he had consensual sexual

intercourse with the woman. Finally, in his third interview he admitted to raping her.

7 Gary Kinsella was charged with twelve offences alleged to arise out of this incident. A trial was scheduled for July 2009 but was

adjourned because of a change in the respondent’s legal representation. A second trial was due to commence on the 11th February

2010 but was adjourned because there was no judge available to hear the case. The third trial commenced the following week. Gary

Kinsella had been arraigned and pleaded guilty to one count of assault but not guilty to the remaining counts on the indictment. When

the trial commenced, the victim gave evidence which was described to this court as detailed and convincing. The case against Gary

Kinsella included the direct evidence of the complainant, the passersby and the gardaí, the forensic evidence and his own statements.

On any view, it was a very strong and almost overwhelming case. Nevertheless, the trial commenced.

8 At the close of the first day of the trial, the victim had given evidence-in-chief, but cross-examination had not commenced. In the

absence of the jury, the trial judge observed that Gary Kinsella might consider his position overnight and that the Rubicon had not

been crossed. It was accepted that this was a reference to the fact that victim had not yet been cross-examined on behalf of the

accused. The following day, Gary Kinsella was re-arraigned and pleaded guilty to three counts of rape, oral rape, the threat to kill, as

well as to the assault causing harm to which he had initially pleaded guilty. On the 26th April 2010 the trial judge sentenced him to

eight years imprisonment on each count of rape with the final year suspended, five years on the count of threatening to kill and three

years of the count of assault causing harm, all sentences to run concurrently. The Director of Public Prosecutions has appealed that

sentence pursuant to s. 2 of the Criminal Justice Act 1993 on the grounds that it was unduly lenient.

9 Prior to the trial judge handing down sentence in this matter, reports from the Probation Service and a consultant psychologist were

sought and made available to the sentencing judge. Both these reports were careful and detailed. There was however a divergence

between them. Both carried out tests on the respondent with a view to making some assessment as to the risk of further offending.

The Probation Services report indicated that a RM2000 test placed Gary Kinsella in the high risk category for sexual reconviction and

the medium risk category for non-sexual violent reconviction in the long term. It also noted that “although currently in a committed

relationship Mr Kinsella has a considerable history of impersonal sexual encounters which would indicate some degree of sexual

preoccupation”. By contrast, the consultant psychologist’s report, having considered a number of very detailed tests, concluded that

“after lengthy consideration Mr Kinsella would be of low risk of re-offending at some point in the future”.

10 Reports of this nature, especially when detailed and considered, can be very helpful to the court in providing background on the

offender which may not emerge from the facts of the case or the matters raised in mitigation. However, the prediction of future

behaviour is an inherently difficult task, all the more so when there is no detailed examination of the nature of the tests carried out,

and no possible reconciliation between the conflicting views. It is difficult therefore to place considerable reliance on the prediction of

future behaviour. The facts of the case itself, the behaviour and history of the respondent, and his persistent refusal to acknowledge

his guilt in the face of overwhelming evidence: direct, independent, forensic and that provided by his own statements, all give rise to

some considerable concern. Certainly, he cannot be treated as one of those rare cases in which the court can consider that an

offence was entirely aberrational, where remorse is patent and total, where the evidence was given viva voce and the expert and lay

testimony is consistent and where the court can then have a high degree of confidence that an offender will not re-offend. It is not

possible however to go much beyond that essentially negative conclusion in this case.

11 Reliance was placed on the fact that after the first day of the trial, and after deciding to change his plea, the respondent wrote a

handwritten letter to the court expressing his remorse and shame and his hope that his victim could begin to get her life back on

track. The victim impact report provided to the court showed just how significant an impact this offence had upon the victim. Her

relationship with her boyfriend had ended. She felt she had become insular and introverted. She left this country, where until the rape

she had been happy. She had not been able to disclose the fact of her ordeal to her family with whom she had previously had a close

and trusting relationship. She was still experiencing insomnia and was further agitated around the period up to and including the trial.

She suffered from flashbacks of the rape and had frequent and disturbing nightmares. Her self-confidence was very low. She was also

anxious and tended to be on high alert when she went out and found night time difficult as she still had a fear of being followed. She

felt dirty and disgusted by what had happened to her. She is no longer interested in her appearance and experienced a loss of regular

menstruation. She has experienced a complete loss of sexual desire. She feels uncomfortable around men she does not know and feels

rage against all men. Having enjoyed her work in a white collar position in Dublin, she was now working as a cleaner in another

country, employment which was less well paid, more physically taxing and less fulfilling than her job in Dublin.

12 The trial judge, as the D.P.P. acknowledged on this appeal, has considerable experience in this matter and he approached the

question of sentencing in this case in an admirably clear and structured fashion. He first placed the offences at the upper end of the

scale. He identified elements of planning, following and stalking the victim. He made it clear that he was not suggesting that the

offence was completely premeditated; nevertheless the following of the victim was disturbing. The offence involved very considerable

violence and significant physical injury to the victim, including a broken nose. It amounted to something in the nature of a forced

abduction with the respondent dragging his victim across a public road. The fact that the incident itself involved vaginal, anal and oral

rape and was accompanied by threats to kill, all placed the offence at the upper end of the scale. The judge also referred to the

victim impact report and the very serious effect that the crime had had on the victim’s life. The fact that the respondent had

consumed considerable quantities of alcohol and drugs earlier in the day was of no excuse whatsoever.

13 The trial judge noted that, had an early plea been offered, considerable credit might have been given to the respondent. The

victim was a foreign national who had left the State, and accordingly an early plea would have spared her the ordeal of a trial and the

considerable stress and inconvenience of having to return to the State on numerous occasions in order to prepare for the trial. In the

event, however, the plea was only offered after the first day’s evidence and after the trial judge’s observations. Nevertheless, some

credit had to be given for it. In addition to the late plea, the judge acknowledged that the respondent had apologised to the victim

both in the immediate aftermath of entering the plea and again through his counsel at the sentencing hearing.

14 The trial judge also considered the background of the respondent. While his previous convictions were not particularly serious, the

element of intoxication was disturbing as was the fact that bail had been withdrawn in the run up to this trial, indicating that even at

that stage the respondent had not managed to put any structure on his life. On the other hand he had a good record, had apparently

been the top recruit in the Army in his year which indicated he had real potential to go far, and he had been involved in a number of

voluntary activities.

15 The trial judge considered that the rape offences merited a sentence in the range of eight to ten years. He fixed a starting point

at eight years which was the lower end of that scale. He then allowed credit for the late plea of guilty by suspending the final year of

the sentence. In addition, he imposed a two year post-release supervision order with a requirement that the respondent cooperate

with the Probation Service in relation to any counselling for sex offending or addiction which might be required. He was also included

in the Sex Offenders Register.

16 The central issue in this appeal is the sentence for the rape offences. It is clear that the judge considered the relevant factors

and did so in a fashion that showed he was not simply identifying and checking off matters on a list, but instead was fully aware of

their significance and relevance to the sentencing task. Nevertheless, this court is troubled by the overall sentence ultimately

imposed and has come to the conclusion that it did not meet the case that had been carefully identified by the trial judge. The

starting point of a sentence of eight years seems low and the suspension of the final year of the sentence is somewhat generous,

particularly in proportion to the overall sentence. The court is mindful in this regard of the provisions of s. 29 of the Criminal Justice

Act 1999, which requires a court to take account of the stage in the proceedings when an accused pleads guilty and the

circumstances in which an indication was given of an intention to so plead. In the context of this case these indicators strongly

suggest that very limited credit should be given for a plea entered so late in the day in the face of a very strong case and where the

victim had to be prepared to give evidence on three separate occasions and had been required to give her evidence-in-chief, with all

the apprehension, worry and trauma that that involved. The judge had indicated that some credit remained for not pursuing the

matter to the bitter end, and was correct in so doing, but this Court considers that the degree of resultant discount was excessive in

the circumstances. The court also fully agrees that the offence was at the serious end of the scale of rape offences. However the

court does not agree that this was a case which was at the very lowest end of that scale of serious cases. The element of following

the victim and the fear it necessarily engendered; the serious violence of the attack; the physical domination of a slight woman by a

considerably stronger and well built man; the threat to kill which the victim understandably fully believed could and would have been

carried out; the degrading nature of the rapes; the initial denial of culpability and assertion of consensual intercourse are all

significant. Taken together, these factors mean that this is a case in which a sentence of between ten and twelve years would have

been merited.

17 It is not enough, however, that the individual members of the court might consider this an appropriate sentence; it must also be

the case that the sentence actually imposed is unduly lenient. However, this not a simple mathematical exercise of calculating some

permissible percentage variation from a deemed norm. Here the court is satisfied that there was an error in characterising this case as

one at the lowest end of the scale of serious offences, and indeed that the scale of permissible sentences for serious offences ran

between eight and ten years imprisonment. The assessment of this offence as being at the lowest end of that scale was unduly

lenient in the circumstances.

18 In the circumstances, the court has come to conclusion that it is appropriate to set aside the sentence imposed on the rape

charges and will substitute a sentence of ten years imprisonment with the last six months suspended on the respondent entering into

his own bond in the sum of €100 to be of good behaviour during the period of one year post release, and also subject to a two year

post release supervision by the Probation Service and to cooperate with any programme for sex offenders or for alcohol or drug

addiction which it is considered by the Probation Service he should engage in. His name will also be entered in the Sex Offenders

Register which imposes obligations as to residence, notification of the authorities of an address, and of any change of address. Any

breach of those provisions would be a further offence and expose him to the risk of further punishment including the possibility of

further imprisonment. The sentence for the threat to kill and the assault will stand. The sentence will date from the date upon which

the respondent first went in to custody on these offences.