DPP v Finn

JurisdictionIreland
JudgeFinnegan J.
Judgment Date29 July 2009
Neutral Citation[2009] IECCA 96
CourtCourt of Criminal Appeal
Date29 July 2009

[2009] IECCA 96

COURT OF CRIMINAL APPEAL

Finnegan J

Hanna J.

McCarthy J.

149 of 2008
DPP v Finn
[2009] IECCA 96
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT

and

RICHARD FINN
APPLICANT

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

DPP v DROUGHT 2008 1 IR 308 2007/18/3617 2007 IEHC 310

DPP v STAFFORD UNREP CCA 14.2.2008 2008/21/4603 2008 IECCA 15

DPP, PEOPLE v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155 1988/4/1067

CRIMINAL LAW

Sentence

Severity - Rape - Seriousness of offence - Scale of seriousness of offences - Circumstances of offence - Personal circumstances - Aggravating features - Mitigating factors - Appropriateness of appellate court laying down standardisation or tariff of penalty - Whether decision in People (DPP) v Drought established categories of rapes with appropriate range of sentences - Whether sentence fell within range of appropriate sentences - People (DPP) v Drought [2007] IEHC 310, [2008] 1 IR 308, People (DPP) v Stafford [2008] IECCA 15, (Unrep, CCA, 14/2/2008), People (DPP) v Shannon [1988] IR 250 and People (DPP) v Tiernan [1988] IR 250, [1989] ILRM 149 considered - Criminal Law (Rape) Act 1981 (No 10), s 2 - Criminal Law (Rape) (Amendment) Act 1990 (No 32) , s 4 - Leave to appeal against sentence refused (149/2008 - CCA - 29/7/2009) [2009] IECCA 96

People (DPP) v Finn

1

Judgment of the Court delivered on the 29th day of July 2009 by Finnegan J.

2

The applicant pleaded guilty before the Central Criminal Court to two counts as follows:-

3

Count No. 1.

4

Rape contrary to common law and as provided for by section 48 of the Offences against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981.

5

Count No. 2.

6

Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

7

The applicant was sentenced to terms of imprisonment of twelve years on each count. He seeks leave to appeal against sentence. In short on behalf of the applicant it is submitted that the learned trial judge erred in determining where on the scale of seriousness of offences of this type this offence occurred and in failing to have appropriate regard to the personal circumstances of the applicant.

Circumstances of the Offences
8

The applicant pleaded guilty to Count 1 on the 25 th February 2008 and to Count 2 on the 25 th April 2008. The circumstances of the offences were set out by Detective Inspector O'Boyle on the latter date.

9

Ms M.M. left her home on the 22 nd July 2007 at 7.20 a.m. to go to work. She is a Polish national. She was then twenty three years of age. Her path took her past her local church. She was grabbed from behind and pulled into the church car park. She screamed. The applicant struck her with his fist to the right side of her face knocking her to the ground. He pulled her to her feet and took her to a garden area in the church ground. He forced her to take off her trousers. He forced her to touch and move her hand on his penis and this lasted for some five minutes. He then forced her to take his penis in her mouth. He required her to repeat these actions on a number of occasions. He attempted to penetrate her vagina with his penis but failed to do so. He then took his mobile phone and photographed her vagina and breasts. After that he again required her to use her hand and her mouth and again attempted vaginal penetration with his penis and failed. It was 8 a.m. He ordered her to get dressed and was taking her to another part of the church grounds when she attempted to escape but the applicant caught up with her. In a different part of the church grounds he again forced her to remove her trousers. He took away her shoes and socks to prevent her running away. He again required her to take his penis in her hand and her mouth. He made a further attempt to penetrate her vagina with his penis and on this occasion was successful. He allowed her to dress and then walked away having told her to stay where she was for a further five minutes as he knew where she lived. The victim stayed there for a further ten minutes and then returned home and told her husband. The incident in total lasted between two and two and a half hours.

Impact on Ms M.M.
10

Ms M.M. has returned to Poland. Because of the applicant's plea it was not necessary for her to return to Ireland and she did not do so. She was deeply traumatised by the events. She was unable to obtain counselling because of the non-availability of a Polish speaking counsellor in Dublin. She did receive counselling on her return to Poland. She was unable to return to work for one month following the offences. She is a catholic and found it upsetting that the events occurred in church grounds. Because of her religion and her personal approach to certain forms of sexual activity her ordeal was particularly harrowing. She found the oral sex element particularly distasteful and upsetting. By nature she is shy and disliked removing her clothing for any purpose. She found the medical examinations distressing.

11

She was examined by Michael Dempsey, clinical psychologist, on 6 th March 2008. She reported to him that she had never had oral sex and that she found it disgusting and believed it not to be natural. She was traumatised when she attended an identity parade some two months after the rapes. She had suffered from sleep difficulties and nightmares. She had flashbacks to the rapes when intimate with her husband. She changed her job and her house following the occurrences. She was unable to go out alone and afraid to go out in the dark even in company. She lost her sense of personal safety. She described her life as having changed forever, that she will never be the same, that she will never forget.

12

The conclusion of Mr Dempsey was that at that date Ms M.M. was suffering from post-traumatic stress disorder for which she required counselling.

The Applicant
13

The applicant was nineteen years of age at the time of the offences. A report of Professor Michael Fitzgerald, Psychoanalyst was introduced on behalf of the applicant. In the opinion of Professor Fitzgerald the applicant suffers from attention deficit hyperactivity disorder. The applicant expressed to him a sense of guilt and remorse. Persons with ADHD are more likely to get involved with alcohol and drugs and the applicant has an alcohol and drug problem. He was drinking from age thirteen and taking hash at the same time and at age sixteen moved on to cocaine. Because of his ADHD he had problems at school and in his education.

14

In his past the applicant has minor public order convictions only. He had a history of employment.

The sentencing hearing
15

The applicant was sentenced on the 28 th April 2008. The learned trial judge listed the following as aggravating features:-

16

1. The filming of the victim's vagina and breasts.

17

2. The victim's distress at the fact that the mobile phone with photographs had not been recovered.

18

3. The violation of the victim on consecrated ground which offended the victim's strong Polish Catholic faith.

19

4...

To continue reading

Request your trial
5 cases
  • DPP v Ebbs
    • Ireland
    • Court of Criminal Appeal
    • 3 d4 Março d4 2011
  • DPP v Griffin
    • Ireland
    • Court of Criminal Appeal
    • 7 d5 Outubro d5 2011
    ...People (DPP) v McShane 2007 IESC 47 [2008] 2 IR 92, People (DPP) v PS [2009] IECCA 1 (Unrep, CCA, 28/1/2009) and People (DPP) v Finn [2009] IECCA 96, (Unrep, CCA, 29/7/2009) considered - Appeal allowed; substitution of sentence of 15 years (106/2007 - CCA - 7/10/2011) [2011] IECCA 62 People......
  • The People (At the Suit of the DPP) v J.McD.
    • Ireland
    • Court of Appeal (Ireland)
    • 8 d1 Fevereiro d1 2021
    ...the photography or filming of rape and sexual assault/defilement type offences, are The People (Director of Public Prosecutions) v. Finn [2009] IECCA 96, a rape case where the appellant had photographed his victim's naked breasts and genitals; The People (Director of Public Prosecutions) v.......
  • DPP v Griffin
    • Ireland
    • Court of Criminal Appeal
    • 7 d5 Outubro d5 2011
    ...47 CRIMINAL JUSTICE ACT 1999 S29 DPP v S (P) UNREP CCA 28.1.2009 2009/19/4611 2009 IECCA 1 DPP v FINN UNREP CCA 29.7.2009 2009/16/3754 2009 IECCA 96 CRIMINAL LAW Sentence Rape - Life sentence -Applicant abused position of trust - Age difference - Breakdown of relationship between complainan......
  • Request a trial to view additional results
1 books & journal articles
  • Sentencing Rape - A Comparative Analysis by Dr Graeme Brown
    • Ireland
    • Irish Judicial Studies Journal No. 2-20, July 2020
    • 1 d3 Julho d3 2020
    ...Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’ (2017) 57(5) The British Journal Criminology 1023. 14 [2009] IECCA 96. 15 (1982) 4 Cr App R (S) 8. 16 (1986) 8 Cr App R (S) 48. 17 (1988) 10 Cr App R (S) 13. . 18 Attorney General’s Reference (No 7 of 1989) (sub ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT