DPP v F.E.

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 26 February 2020
• Neutral Citation: [2019] IESC 85
• Docket Number: [S.C. No. 67 of 2018],Supreme Court appeal number: S:AP:IE:2018:000067 [2019] IESC 000 Court of Appeal record number 2016/219 [2018] IECA 53 Central Criminal Court bill number: CCC 2015 no 0009
• Date: 06 December 2019
• Court: Supreme Court

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/APPELLANT

- AND -

F.E. (RAPE AND ASSAULT, DUBLIN)

ACCUSED/RESPONDENT

[2019] IESC 85

Clarke C.J.

McKechnie J.

Charleton J.

O'Malley J.

Irvine J.

Supreme Court appeal number: S:AP:IE:2018:000067

[2019] IESC 000

Court of Appeal record number 2016/219

[2018] IECA 53

Central Criminal Court bill number: CCC 2015 no 0009

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Crime & sentencing – Sexual offences – Rape – Sentencing – Series of criminal events – Consideration of the interrelation of those events

Facts: The accused and his wife were married in 2005, and following difficulties in that marriage the wife was considering ending the marriage. The accused following a row had threatened his wife and raped her, following which the wife obtained orders of protection. Unfortunately, this did not end the matter and the accused continued to harass his wife, culminating in an attack with a hammer. Following sentence, the accused sought to appeal both his conviction and sentence, with the latter only succeeding. The matter now came before the Supreme Court on an appeal by the DPP on a point of law and whether the rape offence should have been looked at as part of a wider pattern of behaviour.

Held by the Court, that the appeal would be dismissed. Charleton J. discussed the various sentencing principles applicable, and the interrelation of events in cases such as the instant. Having reviewed the jurisprudence both domestically and in other jurisdictions on the matter, Charleton J. considered that the Court of Appeal was incorrect to view the rape and prior threat of violence in isolation. Whilst a consecutive sentence may have been appropriate, the totality principle was to be observed.

Charleton J. gave judgment in the matter and invited submissions on the final sentence.

Judgment of Mr Justice Peter Charleton delivered on Friday, December 6th 2019

1 This judgment, on an appeal from the Court of Appeal by the Director of Public Prosecutions, concerns sentencing in rape cases in general and in cases where a series of criminal events require a court to consider the interrelatedness of those events in order to arrive at a just result. This requires an analysis of the nature and duration of the facts which constitute a crime, how earlier or later conduct should influence sentencing and, also, the proper approach to concurrent or consecutive sentences where wrongful conduct is reflected in a number of individual convictions. In seeking to reach an appropriate sentence for a group of convictions on this appeal, the most serious of which is rape, the Court must consider the validity of existing judgments and published research on sentencing precedents.

2 A crime may consist of a single event, as where A steals from V. Also a crime can be an event which takes time, as where A falsely imprisons V and subjects her to sexual violence. Sometimes a crime is committed and then is followed by another crime which occurs some time later but is similarly motivated, as where a husband rapes V, his wife, in circumstances of domestic domination and then attacks her weeks later with a view to re-establishing control after V has effectively ended the marriage by leaving the family residence. This last situation is what is in issue here.

Background

3 The accused and the victim married in 2005 and a child was born a few years later. The wife came from Ireland and the accused came from an African country. In the ordinary way, and in circumstances which could never impact on sentencing, unhappy differences emerged in the marriage including issues over absences for work and finance. By early 2014, the wife was actively considering ending the marriage, something with which the husband was not at all content. On 2 May 2014, there was a major row which involved an altercation. The wife moved into her mother's home, but returned in consequence of an agreement with her husband that they would separate. This led to more arguments, since the husband either claimed never to have agreed or had re-thought the matter. On 25 May a row broke out in the matrimonial kitchen. The husband produced a knife and threatened his wife that he would “cut open” her face. He ordered her upstairs and raped her. He had told her that if she rang the gardaí on her mobile phone that they would not arrive in time to save her. During the night, she pretended reconciliation and so was able to leave in the morning. She went to the family law courts and obtained relevant orders of protection. He rang her and threatened to kill her the next day. A charge of assault was laid in respect of the incident on 2 May 2014, but since, at trial, the jury disagreed, the presumption of innocence was not displaced. As for the events of the day of 25 May, three charges were laid: 1 count of rape, 1 count of threat to cause serious harm, and 1 count of threat to kill. The accused was convicted at trial of all these.

4 Living at her parent's home, the wife was not free of her husband's negative attentions; including turning up to her workplace and confronting her at their child's crèche. There are no specific charges on this. The husband took opportunities to initiate rows when meeting with the child and during the course of phone calls to or about the child. These led to no charges. On 9 June, however, the husband accosted the wife at a shopping centre and told her that the next time she saw him she would not see him coming and that he would be armed with a hammer. This was subject to a separate charge and conviction. Over that time there was constant checking by the husband on the wife's movements through smartphone technology. On 6 August the husband turned up at the wife's parents’ home and demanded entry while carrying a paper bag. She refused him entry. The next day there were two visits to the parents’ home where he first spoke to the wife's mother. On the second occasion he returned carrying a paper bag. Claiming this concealed a present for the child, he gained entry. He produced a hammer and struck the wife several times on the head and also hit her mother on the head with the weapon. Neighbours intervened, one with a dog, and the husband fled, to be arrested by gardaí on a street close by, hiding behind a car. While the injuries from an attack of that kind could have resulted in death or serious injury, the result was multiple injuries to the wife including three deep lacerations and both she and her mother were brought to hospital. The attack was the subject of two charges.

Sentence and appeal

5 Before the trial judge in the Central Criminal Court in June 2016, there were pleas of guilty to the hammer attack, as an attempt to cause serious harm and assault. The rape charges and the various threats to kill were contested but guilty verdicts were returned unanimously on the rape count and on the three threats to kill. One count of threat to kill was directed by the trial judge, Kennedy J.

6 Sentences were imposed: of 14 years on the rape, a headline sentence reduced to 10 years through 2 years reduction in respect of mitigation and 2 years being suspended; of 5 years for the threat to kill on the occasion of the rape; of 3 years for the threat to kill, delivered by phone the day after; of 5 years for the threat to kill at the shopping centre on 9 June; of 7 years and 6 months for the attempt to cause serious harm at the wife's parents’ home on 7 August; and of 3 years and 6 months for assault causing harm to the wife's mother on that same day. These sentences were all concurrent. The trial judge also imposed a 5 year post-release supervision order. The accused appealed his conviction unsuccessfully in the Court of Appeal; [2018] IECA 314. However, the accused succeeded in February 2018 in his appeal on sentence; [2018] IECA 53.

7 In the Central Criminal Court, Kennedy J, in her sentencing remarks, considered the aggravating factors for the offences of 25 May. These, she said, were to include “the threat of violence with a weapon, the breach of trust, the violation of the injured party in her own home while her son was asleep, the fear that he instilled in her and the severe effect on his victim.” She correctly approached the sentence by arriving at a headline, that is by, firstly, identifying the severity without taking mitigation into account and then, secondly, by factoring in mitigation in terms of reduction of time served and suspension. The Court of Appeal reduced the headline sentence on the rape to 12 years and took off 2 years for mitigation, the same as the trial judge, and suspended 18 months. Thus the 10 year actual time to be served became 8 years and 6 months. The Court of Appeal did not overturn the sentence of 7 years and 6 months for the assault on the wife with the hammer. On the rape, giving the court's judgment, Edwards J stated at paragraph 34:

While we accept that the circumstances of the case were egregious, and that it was very serious crime, we also agree with the submission made by counsel for the appellant that, viewed in isolation, the sentence on the rape appears to be somewhat out of kilter with sentences imposed in comparable cases. We have 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. Our conclusion is that while the gravity of the offence, (determined with reference to the appellant's culpability, and the harm done) certainly merited the imposition of a substantial custodial sentence, it did not merit a headline sentence of that severity. We therefore uphold the first ground of appeal.

8 The Court of Appeal regarded their function only to correct any error as to whether a consecutive sentence should or should not have been imposed. As to whether the sentences were to be consecutive or...