DPP v F (C)

 
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[2011] IECCC 5

THE HIGH COURT CENTRAL CRIMINAL COURT

NO 88. CC/[2008]
DPP v F (C)

Between

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Prosecutor
v.
C.F.
Accused

CRIMINAL LAW (RAPE)(AMDT) ACT 1990 S4

DPP v D (W) 2008 1 IR 308

DPP v FINN UNREP CCA 29.7.2009 2009/16/3754 2009 IECCA 96

DPP v TIERNAN 1988 1 IR 250

DPP v M 1994 3 IR 306

DPP v MCCORMACK 2000 4 IR 356

SEX OFFENDERS ACT 2001 S10

Criminal law - Sentencing - Sexual offences - Mitigation.

2008/88CC - Sheehan - CCC - 28/10/2011 - 2012 11 3233 2011 IECCC 5

Facts The accused was convicted by a jury on four counts in respect of one complainant, namely rape, attempted rape, rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 and false imprisonment and also on one count of sexual assault in respect of a separate complainant. All of the offences occurred in the accused's car after he separately offered the two complainants a lift home. The complainant in respect of whom the four counts were brought suffered physical injuries. Both complainants completed victim impact reports, which ended on hopeful notes. On behalf of the accused a probation report, certificates and references were furnished to the court along with a letter of remorse written by the accused. The accused had also engaged with counselling services whilst in prison. It was submitted on behalf of the prosecutor that the appropriate sentence for the sexual assault was in the four to seven year range and the appropriate sentence for the rape was in the nine to fifteen year range.

Held by Sheehan J.: That a relevant factor that required to be considered in this case was the prospect of successfully rehabilitating the accused so that he would not have any propensity to re-offend. The injuries sustained by one complainant and her detention against her will in the accused's car were aggravating factors. However, the accused's remorse and apology, his personal circumstances, his willingness to engage with whatever rehabilitative opportunities were offered to him, his co-operation with the Gardai and his previous good character were all mitigating factors. Furthermore, the placing of the accused on the Sex Offenders Register was also a punishment for him. Taking all matters into account, including the adverse consequences of prison overcrowding, the appropriate sentences before mitigation were eight years imprisonment each for rape and for oral rape, five years imprisonment for attempted rape, five years imprisonment for false imprisonment and two years imprisonment for sexual assault. However, having regard to all relevant factors the sentences were mitigated respectively to six years, four years and eighteen months imprisonment. The sentences were concurrent and were backdated to the date the accused first went into custody. A post-release supervision order was not imposed.

[1] Overview
2

2 [1.1] On the 22 nd July 2011 a jury convicted C.F. in relation to all five counts on the indictment; namely rape, attempted rape, rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990 and false imprisonment in relation to the complainant B.K. and a count of sexual assault against C.M.

[2] Factual background
2

2 [2.1] All the offences occurred in the early hours of the 16 th September 2007. The circumstances of the sexual assault on C.M. were as follows. C.M. met the accused, C.F., in a fast food restaurant in the town following an evening socialising in pubs and a nightclub. She accepted an offer of a lift home with the accused, went to his car and the next thing she remembered was waking up in the car in a field. The accused was kissing her. She had his penis in her hand and he was touching her vagina. She told him to stop and he did so. He drove her home and he asked her for her telephone number, whereupon she gave him a telephone number and he later gave this to the gardaí when he was arrested in respect of the offences against B.K. the following day. As a result of this the gardaí contacted C.M.

3

3 [2.2] Having left C.M. to her home, C.F. returned to the town where he encountered B.K., who had been out socialising with her then partner in some public houses and a nightclub. She had an argument with her partner and was trying to get a lift home on her own. She had no shoes on and she recalled a car stopping on the street which she got into. The accused, instead of driving her straight home, stopped the car in a country lane and prevented her from getting out. A struggle ensued in the course of which she broke the windscreen with her feet. She was screaming at the accused but calmed down when he said he would drive her home. However, he drove on and stopped again a short while later with the passenger door against a brick wall. The accused jumped on the complainant and a further struggle ensued. She tried to fight him off but was unable to do so as he was stronger than her. He pulled down her jeans and raped her. He did not ejaculate and he then asked her to perform oral sex on him which she did out of fear saying that she believed she would be killed if she did not. He did not ejaculate and then attempted to have anal sex with her. She kept screaming and eventually he stopped trying. He then drove her home. In the course of her struggle with the accused, B.K. suffered considerable bruising to her breasts, chest, arms and legs and she also had bruising on her face.

[3] Facts arising from the sentencing hearing
2

2 [3.1] This Court has taken into account the submissions of counsel for the accused, the probation report furnished to the Court, a number of certificates in respect of courses completed by the accused, the reference of the prison chaplain and the letter the accused himself wrote to the Court. With regard to the victim impact report of B.K., the Court notes her courage and the hopeful note on which she ends her statement. Since the event she has got married and has had two children. The Court also notes the contents of the victim impact report of C.M. who also ends her statement on a hopeful note....

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