DPP v Horvat

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Gearty
Judgment Date01 March 2021
Neutral Citation[2021] IECA 57
Docket NumberRecord No: 83/2019

[2021] IECA 57

The President

Edwards J.

Gearty J.

Record No: 83/2019


JUDGMENT of the Court delivered on the 1 st day of March 2021 by Ms. Justice Gearty
Issue on Appeal

This appeal addresses the disparity in sentencing that may arise when a single attempted rape is committed in circumstances where the sentencing judge is also considering multiple sexual offences against the same victim.

Background Facts

The Appellant was convicted of 22 counts of oral rape and sexual assault. The victim in each case was his daughter. He was also convicted of one count of attempted rape. The offences took place every week between October of 2009 and July of 2011, at a time when his victim was between 13 and 15 years old. The facts are set out in full in the judgment of Ni Raifeartaigh J., delivered on the 23rd of July 2020, refusing the Appellant's appeal against conviction. Of note for the purposes of the sentence hearing was the background history in respect of this family which was one of regular and frightening physical violence on the part of the Appellant towards the victim's mother, including a specific threat to the victim not to reveal the sexual abuse or she and her mother would be killed.


Before the verdicts, the Appellant had given an undertaking not to bother the complainant or her mother again, in any way. The evidence of violence and fear was not disputed, and the undertaking was given in that context and not by way of admission to sexual offending. A letter of apology for the violence only was offered by the Appellant, who continues to maintain his innocence in all other respects. He has a small number of previous convictions, none comparing with the offences under consideration.

Grounds of Appeal

The Appellant confines his argument to the sentence imposed on the count of attempted rape. He argues that, on three different grounds, the sentence of 12 years with 6 months suspended was unduly severe. The Appellant was sentenced to 10 years in respect of the counts of oral rape and 8 years in respect of the sexual assault offences. A headline sentence of 12 years was identified in respect of the attempted rape and six months was suspended to reflect the mitigation put forward by the defence.


Firstly, he submits that the offence of attempted rape, while very serious, is not as serious as the completed offence would be. If this proposition is correct, it is argued, the headline sentence of 12 years is too high for a single inchoate offence and disproportionately higher than the 10-year sentences imposed in respect of the oral rape offences, which sentences are not appealed.


Secondly, it is argued that the suspended portion of the sentence was inadequate given the mitigation in the case which included the fact that the Appellant had desisted from his attempt to rape his daughter when she screamed, that he had undertaken to leave his wife and the victim alone before the verdicts were delivered by the jury and that he had done well in prison and had undertaken an anger management course. The Court was also asked to consider the mitigating effects of a written apology from the Appellant to his daughter in which he expresses his sorrow for the violence to which he subjected her and her mother. The letter is silent as to the sexual offending as he does not accept that this took place.


Thirdly, it is submitted that the learned Sentencing Judge erred in failing to take into account a period spent in custody by this Appellant while awaiting trial on a separate and unrelated offence but in circumstances where an EAW had issued for his surrender in that regard and a request to prosecute these offences could not be processed until after that prosecution concluded. The Appellant had been acquitted in that earlier trial and, it was argued, this period in custody ought to have been put to the credit of the Appellant, so to speak, given that even before that EAW had issued, the investigation of these offences was complete and, had it been processed quickly it could have formed the subject matter of the same EAW.

Rape and Attempted Rape - Inchoate Offences

This Court agrees that, as a matter of principle, the completed offence of rape is more serious than an attempted rape in all but the most unusual circumstances. The penetration of the woman's vagina is not only a more physically invasive and traumatic event than an attempt to penetrate would be, rape also carries biological and cultural repercussions for the woman who is raped. There is a fear of impregnation and a cultural and historical view of the act as one that somehow brings shame to the woman, illogical though this may be. The additional psychological pain which is inflicted by the crime of rape on victims is a complicated psychological, historical and social issue a full discussion of which is beyond the scope of a sentencing judgement. Suffice to say that our recent social history, including sexual abuse revelations and platforms allowing victims to speak more publicly about their experiences, tells us that the lasting and severe effects of sexual offences on child and adult victims are only now beginning to be understood. There is better understanding of the fact that victims can find some offences more difficult to disclose than others. Often, the more serious the psychological effects, the longer it takes for the victim to process the offence and disclose it. And while there is a hierarchy of seriousness, both in terms of moral culpability and of general impact on the victim, each offence must be considered on its facts having acknowledged the fact that the completed offence is generally more serious than the inchoate act.


That this is so in respect of the crime of rape has already been acknowledged in the judgment of this Court, delivered by Birmingham P., in the case of J.F. v DPP [2016] IECA 390, which case is discussed further below. Significantly, this view is informed by the actions of the victim in this case in the sequence of her disclosures to her mother. She first disclosed that her father had touched her inappropriately and then that he had orally raped her. It was over a year later and after she had spoken to a counsellor that she was able to reveal that he had also tried to rape her vaginally. This confirms the Court's view that it was the attempted rape that was the most serious of the offences committed, as the learned Sentencing Judge specifically recognised.


It was also argued in this context that the difference between an attempted vaginal rape and a completed oral rape is not sufficient to justify a 2-year disparity in sentence. There was, in the view of the Sentencing Judge, a difference between the penetration of the mouth and the penetration of the vagina. This Court shares that view. The latter is, in and of itself and speaking generally, the more serious offence. This does not suggest that an oral rape is anything but a serious, penetrative offence but to acknowledge that the nature of the act is different. The biological and cultural effects of the acts are different, the woman's perception of each act is different. Again, the view of the victim as to which was the most serious offence in this case is clear from the sequence of events set out above.


All depends on the surrounding circumstances as to where on the scale the appropriate sentence lies, before taking mitigation into account. Both offences, oral rape and attempted rape, can clearly attract lengthy custodial sentences and the circumstances will determine what headline sentence is appropriate for each offence. If the surrounding circumstances are the same, ordinarily a penetration of the vagina by the penis will attract a more severe penalty than the penetration of the mouth. The same distinction can also justify an attempted penetration of the vagina by the penis as attracting a more serious penalty than the penetration of the mouth.

Rape and Attempted Rape – J.F., the Comparator

The case of J.F. v DPP ...

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