DPP v F.E.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 26 February 2018
• Neutral Citation: [2018] IECA 53
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 219/2016
• Date: 26 February 2018

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

F.E.

APPELLANT

[2018] IECA 53

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No. 219/2016

THE COURT OF APPEAL

Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant faced a multi-count indictment and was acquitted on some counts. However, in advance of his trial he had pleaded guilty to two counts, one (Count No. 8) being an attempt to cause serious harm contrary to common law and the other (Count No. 10) being an assault causing harm contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997. In relation to these he was sentenced on the 25th July 2016 to terms of imprisonment for seven years and six months, and three years and six months, respectively. In respect of the remaining counts of which he was convicted by a jury on the 30th June 2016 the position was as follows: Count No. 2: Rape contrary to s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 (sentenced to imprisonment for twelve years with the final two years suspended on conditions); Count No. 3: Threat to cause serious harm contrary to s. 5 of the 1997 Act (sentenced to imprisonment for five years); Count No. 4: Threat to kill contrary to s. 5 of the 1997 Act (sentenced to imprisonment for three years); Count No. 6: Threat to kill or cause serious harm contrary to s. 5 of the 1997 Act (sentenced to imprisonment for five years). The appellant appealed to the Court of Appeal against the severity of the sentences imposed upon him by the Central Criminal Court. First it was contended that the sentencing judge over-assessed the gravity of the offences in each instance. Secondly it was complained that insufficient allowance was afforded in each instance for the mitigating circumstances in the case. Thirdly, it was argued that there was insufficient regard to the penal objective of rehabilitation.

Held by the Court that the sentence on the rape appeared to be somewhat out of kilter with sentences imposed in comparable cases. The Court therefore concluded that the sentencing judge was incorrect to have assessed the case as meriting in the first instance a headline sentence of fourteen years. Having found that there was an error of principle in sentencing the appellant for the rape offence, the Court quashed the sentence on Count No 2 imposed in the court below, and proceeded to re-sentence the appellant for that offence.

The Court held that the offence merited a headline sentence of imprisonment for twelve years, before discounting for mitigation. The Court would again discount by two years to reflect such mitigation as existed in the case, leaving a net sentence of imprisonment for ten years. The Court would afford the appellant an incentive to rehabilitate primarily in the interests of his son, suspending the last eighteen months of his sentence of imprisonment for ten years on the same conditions as attached to the suspended portion of the sentence imposed on him by the court below. The Court held that the new sentence imposed on Count No 2 would date from the 9th of August 2014 and would run concurrently with all of the other sentences imposed by the court below and which remained unchanged.

Appeal allowed.

JUDGMENT of the Court delivered on the 26th of February 2018 by Mr. Justice Edwards

Introduction

1 This is the appellant's appeal against the severity of the sentences imposed upon him by the Central Criminal Court in respect of a number of offences in respect of which convictions were recorded against him; some following pleas of guilty by him, and others following his conviction of those offences by a jury on the 30th June 2016.

2 The appellant faced a multi-count indictment and was acquitted on some counts. However, in advance of his trial he had pleaded guilty to two counts, one (Count No 8) being an attempt to cause serious harm contrary to common law and the other (Count No 10) being an assault causing harm contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997. In relation to these he was sentenced on the 25th July 2016 to terms of imprisonment for seven years and six months, and three years and six months, respectively.

3 In respect of the remaining counts of which he was convicted by the jury the position is as follows:-

• Count No. 2: 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) (Amendment) Act 1990. The appellant was found guilty by unanimous verdict. He was sentenced to imprisonment for twelve years with the final two years suspended on conditions.

• Count No. 3: Threat to cause serious harm contrary to s. 5 of the Non Fatal Offences Against The Person Act 1997. The appellant was found guilty by unanimous verdict and was sentenced to imprisonment for five years.

• Count No. 4: Threat to kill contrary to s. 5 of the Non Fatal Offences Against The Person Act 1997. The appellant was found guilty by unanimous verdict and was sentenced to imprisonment for three years.

• Count No. 6: Threat to kill or cause serious harm contrary to s. 5 of the Non Fatal Offences Against The Person Act 1997. The appellant was found guilty by unanimous verdict and was sentenced to imprisonment for five years.

• Count No. 7: Threat to kill or cause serious harm contrary to s. 5 of the Non Fatal Offences Against The Person Act 1997. The jury disagreed in respect of this count.

4 The offences alleged against the appellant were said to have occurred between the 2nd May 2014 and the 7th August 2014, a period of just over four months. The offences in respect of which the appellant was found guilty by the jury occurred between the 25th May 2014 and the 9th June 2014, a period of under three weeks. The most serious of the offences, rape, was committed on the 25th May 2015 as was a threat to kill or cause serious harm. The remaining offences of threatening to kill or cause serious harm in respect of which the appellant was found guilty were committed on the 26th May 2014 and the 9th June 2014.

Relevant facts

1 The appellant is of Egyptian origin. In 2005 he and the injured party, Ms A, married having met several years earlier. In 2010 they had a child [C] together. In the period leading up to the offences the subject of this appeal the marriage had begun to break down. The appellant had been made redundant while Ms A had gained greater responsibility at work, resulting in her being away from home for longer periods. Because the injured party was breast feeding their child the pair no longer shared a bedroom.

2 In the weeks leading up the incident the appellant's marriage was under serious strain. On the 2nd of May 2014 the appellant and the injured party had a major argument resulting in the Ms A leaving the matrimonial home to live at her parents' house. The pair subsequently agreed to reconcile their differences and she moved back home. A few days later Ms A arrived home to the smell of petrol fumes and realised that the appellant had poured petrol on the soft furnishings in the house.

3 On the 25th of May 2014 the appellant arrived home with their child, who was asleep. She put the child on the sofa. The pair began discussing their marriage. Ms A told the appellant she still wanted to end the marriage. This prompted a violent reaction from the appellant who picked up a knife and told her 'I could cut your face open' and 'you're not leaving'. She told the appellant he was being 'crazy' in the words of investing Garda Ian Brunton. The appellant then said 'right, upstairs' which the complainant took to be an order to have sex. She put her son to bed, went into the spare room where they would usually have sex and lay on the bed. The appellant put his penis in her vagina. During the sex the appellant ordered the injured party to open her eyes. She told Gardaí that throughout that time she was shaking and had to lean against the wall as she took her clothes off. He called her a 'cold, frigid bitch'. After the rape the injured party told the appellant 'we'll talk', causing him once again to become angry. He calmed down when she told him that she would give the marriage another chance.

4 He allowed her to go to another bedroom and a short time afterwards brought her her mobile phone. He had earlier seen her looking at it and told her 'the guards will never get here on time'. Afterwards she stayed in the room wondering how she would escape. The appellant entered her room several times and at one point said she knew she wasn't asleep and 'you'd better have meant what you said'. The next morning she got up at 6.30 a.m. and had a shower. The appellant refused to let her bring their child to the creche and insisted that he bring the child. She said this was extremely difficult for her.

5 After the appellant left for the creche she contacted Gardaí and, without giving them specific details, told them she had been the subject of serious domestic violence. Gardaí advised her to gain a barring order from the District Court. On the 26th of May 2014 the injured party was granted an interim barring order by the Dublin District Court.

6 She went to live with her son at her parents' home. There the appellant contacted her via her parents' landline and screamed 'you're dead. I'm not going to let you live with our child.' On the 3rd of June 2014 the complainant obtained a full barring order with the appellant in court. She changed the locks at her home on the 8th of June and on that date the pair had another argument over the phone. The following day the appellant arrived at her place of work. As she attempted to enter the gates in her car the appellant was seen trying to get into her car. The same day Ms A had received phone calls from the appellant letting her...