Director of Public Prosecutions v J.U.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 21 February 2023 |
| Neutral Citation | [2023] IECA 81 |
| Docket Number | Record No: 32/2022 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 81
Edwards J.
McCarthy J.
Kennedy J.
Record No: 32/2022
THE COURT OF APPEAL
Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant was convicted of one count of rape contrary to Common Law and s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981. The Central Criminal Court imposed sentence on the 7th of February 2022. The sentencing court ordered that the appellant serve a custodial sentence of eight years with the final year thereof to be suspended subject to his adherence to certain probation conditions. The appellant appealed to the Court of Appeal against the severity of sentence imposed on him. The grounds of appeal were as follows: (1) the sentence was excessive in all the circumstances; (2) the sentencing judge erred by placing the offence in the ordinary category of offending as set out in DPP v FE [2020] 1 ILRM 517; (3) the judge erred by setting a headline sentence of nine years; (4) the judge erred in referring to the fact that the appellant continued to insist that he could not remember the incident in a manner which appeared to cast doubt on the appellant’s position; (5) the judge erred in law and in fact in placing excessive weight on the aggravating factors as outlined during the sentencing hearing; and (6) the trial judge failed to give sufficient weight to the mitigating factors as outlined in the sentence hearing.
Held by the Court that the appellant had not established an error in principle such as would warrant the Court to interfere with the sentence imposed at first instance. The Court considered that this was a case that properly belonged within the category of ordinary headline sentences as identified in the FE jurisprudence. The Court did not consider the circumstances of the case as being exceptional or very unusual as counsel for the appellant contended. Counsel for the appellant submitted at the oral hearing that even if the Court were to reject his contention that it belonged in the lower category that the sentencing judge ought not to have selected nine years’ imprisonment as a starting point. In response to this, counsel for the respondent, the Director of Public Prosecutions, contended that there were aggravating circumstances. The Court found that it was not a wholly un-aggravated instance of rape; the victim had been vulnerable, she had been violated in a situation where she was entitled to feel safe, and very significant harm had been done as was evident from the victim impact statement received by the court below. The Court agreed with the respondent’s submission. The Court held that while another court might not necessarily have started at the same point, and one might view the headline sentence as having been at the severe end of the sentencing judge’s range of legitimate discretion, it could not be said that it was outside of her margin of appreciation. The Court found no error of principle in the setting of the headline sentence. The Court was satisfied that the appropriate discount was made for mitigation and in those circumstances it upheld the sentence imposed by the court below.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 21st of February 2023.
The present appeal has been brought by J.U. (i.e. “the appellant”) against the severity of the sentence imposed on the 7th of February 2022 by Creedon J. in the Central Criminal Court. The appellant had been convicted of one count of rape contrary to Common Law and 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) (Amendment) Act 1990. In respect of this count on which the appellant was convicted, the sentencing court ordered that the appellant serve a custodial sentence of 8 years with the final 1 year thereof to be suspended subject to his adherence to certain probation conditions which will be outlined later in this judgment.
At the sentencing hearing on the 13th of December 2021, a Garda Aidan Moran gave evidence in relation to the circumstances of the appellant's offending.
On the 8th of May 2017, both the appellant (then aged 21 years) and the complainant (also then aged 21 years) attended at a party held at a residential address in Dundalk, County Louth. The complainant, originally from Dundalk, was a student at a third level institution in the City of Dublin. The complainant had been invited to the party which was being hosted by a friend of the complainant's sister. The complainant arrived at around 21:45pm with her sister and another female friend. The appellant had been socialising elsewhere at that time and arrived at the party sometime after midnight. Both parties were known to one another.
The complainant had consumed a significant quantity of alcohol. She had given evidence that she had drank red wine and vodka and she had felt unwell at one point and went to the bathroom to vomit. Following this, she laid down in one of the bedrooms in the house. By the time the appellant had arrived at the party, he was also inebriated. There was a number of people coming to and going from the address throughout the evening. By the end of the night, the last people remaining at the house were the complainant, her sister, her sister's friend who resided at the address, and the appellant.
The appellant entered the room where the complainant was sleeping and initially laid down on the bed. The appellant then removed his clothes and proceeded to climb into the bed and laid beside the complainant. At a certain point the complainant awoke from her slumber and became conscious of the appellant's presence. The complainant gave evidence that the appellant spoke to her but that she did not respond. She maintained that she was frozen in shock and fear. She further described how the appellant had pulled her underwear to one side and proceeded to penetrate her vagina with his penis. The appellant then asked the complainant to turn over, using her name. The complainant described that she could not and did not respond to this request. The complainant recalled the appellant pulling her onto her side, whereupon he continued to penetrate her, and then he rolled the complainant onto her back. The complainant at this point managed to rise from the bed and promptly left the bedroom. The complainant described feeling “ very upset” and that she was crying. The complainant then left the premises, along with her sister, and the pair went home.
The complainant made a complaint to An Garda Síochána on the 9th of May 2017. She was then taken to a sexual assault treatment unit at a hospital in the City of Dublin whereupon a genital examination was conducted and revealed two superficial linear abrasions, which abrasions were described by the doctor attending to the complainant as being consistent with recent vaginal penetration.
At trial, there was evidence of telephone and social media exchanges between the complainant and the appellant the following day. In these exchanges, the appellant did not deny his actions to the complainant, apologising to her and saying that he was drunk. In cross-examination, Garda Moran confirmed the tenor of these messages: that the appellant was “ extremely sorry for what happened”; that he was “ disgusted at himself”; that he was “ scared”; that he “ was on the verge of vomiting”, and; that he was concerned for the complainant's welfare. At trial, the appellant gave evidence to the effect that he could not remember much about the night of the offence, nor could he remember much about penetrating the complainant. He averred that he had “ little memory” in general of the events that took place on the evening of the 7th of May 2017. He further averred that it was not in his nature to have behaved in such a manner, and it is for this reason that he had pleaded not guilty.
The appellant was interviewed by gardaí on the 23rd of May 2017, and he was generally cooperative but did not admit to rape.
The appellant was 25 at the time of sentencing and was living at home with his parents and his younger sister, then aged between 12 and 13 years. The family were not originally from Ireland and had moved to the jurisdiction when the appellant was approximately 8 years of age. The appellant had previously worked as a barman in Dundalk, and more recently was working with his father. The appellant was not known to the gardaí, he had never come to the gardaí's attention prior to or since the incident and he had no previous convictions.
At the sentencing hearing, the complainant read aloud in court a lengthy and detailed victim impact statement to which we have had full regard and which we will attempt to summarise. Overall, she described herself before the incident as being “ a generally happy person who always saw the best in people and tried to look at the bright side” but that now she feels like a part of her “ will never be the same”. She reported that she had “ struggled making friends in college after the incident and had to take a year out”, and that she has had her “ guard up” with every person that she has met since the incident, saying “ I couldn't let them know what I was going through”. The complainant stated, “ who I am now is a question I struggle to answer every day.”
The complainant described the incident of the 7th of May 2017 as having changed her life “ forever” and that it ruined her early 20s. She further stated that she was now entering her late 20s “ as a completely new person” whom she was unsure...
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