DPP v Hussey

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 02 July 2018
• Neutral Citation: [2018] IECA 221
• Docket Number: 249/2016
• Court: Court of Appeal (Ireland)
• Date: 02 July 2018

[2018] IECA 221

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

249/2016

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

Anthony Hussey

Appellant

Crime & sentencing – Sexual offences – Rape – Whether sentence severe – Challenge to sentence

Facts: The appellant had been convicted of two counts of rape carried out on a neighbour. He had been sentenced to 13 years imprisonment and a period of post release supervision. He now appealed against the severity of the sentence.

Held by the Court that the appeal would be dismissed. The Court was satisfied the sentencing judge had given due consideration to the mitigating factors present. Given the extremely serious nature of the rape and impact of the offences on the victim, the sentence was within in the range available to the sentencing judge.

JUDGMENT of the Court delivered on the 2nd day of July, 2018 by Mr. Justice Hedigan

1 The appellant pleaded guilty to a charge of rape and a charge of section 4 rape on 14th March, 2016. The appellant was sentenced to 13 years imprisonment coupled with a 5 year post release supervision period. This is an appeal against the severity of that sentence.

Background

2 The offence in question occurred on 20th September, 2014 in the victim's home. The victim, Ms A, was 74 years old and the appellant, was 22 years old at the time of the offence. The victim moved to Ireland in 1995 and had worked from home. She lived alone.

3 The appellant on the night in question had been out drinking with friends. Having been out for several hours he was brought home by a friend. He was dropped home by a friend but to the wrong house near to his own. The appellant went onto the grounds of the victim's house and started banging on the windows of the house presumably in order to gain entry. This was at approximately 6.12 am. The banging woke Ms A up. She was very frightened and crawled into her living room where she phoned her neighbour, Mr M, at 6.13 am for help. Mr M upon arrival observed the appellant in an intoxicated state on the grounds of the property. The appellant also appeared to be soaking wet. It transpired that he had fallen into the pond at the back of Ms A's home. Mr M took the appellant home. Ms A remained awake and went to take a shower. She was in a state of semi undress in her bedroom when she saw a man, now known to be the appellant, standing in front of her wearing dark clothing and a balaclava The victim described herself as being paralysed with fear. She began to scream and a struggle ensued between herself and the appellant. The appellant placed his hand over her mouth to stop her from screaming. Thereafter the appellant grabbed the victim's breasts. He struck the appellant on her face cutting her lip. Ms A was repeatedly told by the appellant that he had a boss and that his boss was making him do this. She was told that if she screamed, there would be ‘three more’ people waiting. When the appellant said ‘you're going to like it’, Ms A stated that she understood she was going to be raped. She was sobbing uncontrollably.

4 She was put in a position where her upper body was on the bed, and her thighs were pressed against the bedframe. She was then undressed and raped vaginally, anally and digitally penetrated. She was left completely covered in a duvet, and she was afraid that she would be suffocated. Once the appellant had left her home she contacted Mr M and informed him that she had been raped and required urgent help. This was at 7.47 am. Her GP and the Gardaí attended at her home. When the Gardaí arrived at the scene, the friend who had dropped the appellant home was still sleeping in his car and was intoxicated.

5 The victim gave a victim impact statement. A portion of the statement reads as follows:

‘My life has not been easy but nothing has been so devastating, so hard to face as the shock and trauma of the morning of the 20th of September 2014. Now a year and seven months after this horrific experience, I am still trying my very best to overcome this terrifying shock of having been terrorised, physically and verbally assaulted, abused and raped by the son of my neighbour. Often, I don't want to go on living. I don't want to remember and believe what happened. I have not been able to prevent reliving again and again the intruder forcing me down on my front over the side of my bed, holding me down at the base of my neck. Therefore I feel like screaming, have to scream out what I had to endure on that morning. How can I break free from the disturbingly vivid and destructive memories still lodged and alive in my body, emotions and mind after more than a year and a half? My lower body does not feel that it is part of the rest of my body, as if it does not belong to me anymore. Writing about it makes me cry. I still feel limp and hollow, deeply sad, not being myself. I want to give up. Nothing makes sense. I have no meaning. Will I ever recover? At times, my head feels like buzzing inside, like being stuffed with tangled wires, live wires that must be the constant presence of painfully troubled and tangled thoughts. My head seems too large for my body now, my lower body feels hollowed out, the vagina and rectum scratched out and sore. In this daily nightmare, I have no voice to speak but I cry silently, tucked away in fear.’

6 She commented on the immediate impact of the offence on her daily life - at a ‘sudden noise, a person on the road, a young man with dark hair or hooded passing, seeing a group of youth or a few slim men dressed in black leisure wear, my body tenses. I have to look the other way or cross the road, focus on my breathing, telling myself that I am safe’.

Personal Circumstances of the Appellant

7 The appellant is now 26 years old. He is one of two children. He has a good relationship with his family. He has no history of psychiatric illness. The learned sentencing judge commented that prior to this offence, the appellant was of good character. The appellant was popular in his local community, well-adjusted and intelligent. He had attended school, completed the leaving certificate and had undertaken further studies in an Institute of Technology. He has a good employment record. He was very involved in sporting activities. He had many close friends at school and fitted in well. The report of psychologist Michael de Villiers stated that the appellant had a somewhat exceptional or abnormal level of sexual activity. On at least one occasion, the appellant went to a prostitute, and has had many consensual sexual experiences. He watched what is described as hard pornography on an extensive basis. The psychologist's report concludes that the offence was out of character and the appellant is at a low to moderate risk of the commission of further sexual offences. The report recommends that the accused engage in therapy to address his emotional difficulties.

Sentence

8 The learned sentencing judge delivered sentence as follows:

‘So, taking the totality of the circumstances, it seems to me that the appropriate sentence is somewhere between 16 and 18 years' imprisonment. One must then address the mitigating factor, which I have identified, that is to say the plea of guilty. I have regard to the other factors to which I have referred in terms of taking the view that the appropriate place on the scale, as it were, is between 16 and 18 years. There's no rational basis for being more precise than that. This is not a precise science, but it seems to me that the appropriate reduction is in or about between a quarter and a third and in those circumstances, I impose a sentence of 13 years' imprisonment. I also believe that post release supervision is essential in this instance, as matters presently stand. One doesn't know what things will be like when he is released from prison....