DPP v E.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 25 June 2018
• Neutral Citation: [2018] IECA 200
• Docket Number: Record No. 25/2017
• Court: Court of Appeal (Ireland)
• Date: 25 June 2018

[2018] IECA 200

THE COURT OF APPEAL

Mahon J.

Birmingham P.

Mahon J.

Edwards J.

Record No. 25/2017

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

E.D.

APPELLANT

Sentencing – Rape – Proportionality – Appellant seeking to appeal against sentence – Whether the sentence was disproportionate

Facts: The appellant, on the 30th November 2016, was convicted 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. On the 30th January 2017 he was sentenced to ten years imprisonment to date from the 3rd May 2016. He appealed to the Court of Appeal against that sentence on the grounds that the sentencing judge: (i) failed to identify the proportionate sentence or follow the recommended best practice when determining same; (ii) erroneously assessed the gravity of the offence at being at the high end offences of this nature; (iii) imposed a disproportionate sentence in the circumstances of the case; (iv) failed 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) failed to take account of the penal objective of rehabilitation; (vi) failed to suspend any portion of the sentence to allow for rehabilitation of the appellant; and (vii) imposed a sentence which was disproportionate and inconsistent with sentences in similar type cases.

Held by the Court that the sentence of ten years imprisonment was on the higher end of the range reasonably within the discretion of the sentencing judge.

The Court held that it would dismiss the appeal.

Appeal dismissed.

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...