DPP v K.A.

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 26 February 2019
• Neutral Citation: [2019] IECA 53
• Docket Number: Record Number: 149/17
• Court: Court of Appeal (Ireland)
• Date: 26 February 2019

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND-

K.A.

APPELLANT

[2019] IECA 53

Record Number: 149/17

THE COURT OF APPEAL

Sentencing – Rape – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant appealed to the Court of Appeal against the severity of a sentence of ten years’ imprisonment, the last year of which was suspended, for rape committed on the 20th June 2013, and imposed on the 29th May 2017 by the Central Criminal Court. The appellant submitted that the trial judge: (i) adopted a headline sentence which placed the offence in a category of severity which was not appropriate to the specific offence in the appellant’s case and which resulted in an actual sentence being passed which was disproportionate and out of kilter with previous sentencing precedents; (ii) did not have adequate regard to the mitigating factors in the appellant’s case and or passed a sentence which was disproportionate having regard to the particular circumstances of the appellant; and (iii) failed to attach sufficient weight to the public interest in rehabilitating the appellant.

Held by the Court that it could not detect any error of principle.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 26th day of February 2019 by Mr. Justice McCarthy

The appeal

1 This is an appeal by the applicant against the severity of a sentence of ten years' imprisonment, (the last year of which was suspended) for rape committed on the 20th June 2013, and imposed on the 29th May 2017 by the Central Criminal Court.

The offence

2 The offence occurred in the early hours of the morning in a bandstand at Ballyphehane Park, Cork. On the previous day the appellant had been drinking with a number of friends there, including the complainant. She had consumed alcohol, to a modest degree, but was drunk. She fell asleep and when she awoke she saw the appellant and his co-accused, since deceased. Her handbag had been interfered with and she could not find her mobile phone. She asked them if they knew where it was but they were unhelpful. However, she recalled them saying words to the effect of:-

‘If you do us a favour we will do you a favour.’

As she was sitting on the bandstand the two started to kiss her. She told them to stop. The appellant proceeded to push her so that she found herself lying on her side and he kept his hand on her shoulder and held her down; thereafter, his co-accused pulling down her tracksuit bottoms and digitally penetrating her. She was crying and repeatedly said no. The co-accused then raped her and during the course of these events, as he held her down, the appellant said; ‘it's alright girl’ on a number of occasions. The accused role was accordingly that of a principal in the second degree. The principal offender had asked the appellant whether or not he wished to have intercourse with the complainant but he declined. Immediately thereafter the appellant gave the complainant a hug and she hugged him back- she said that in retrospect she was not sure why she did this. He gave her a false name and when she indicated that she would report the matter to the Gardaí the now deceased co-accused told her that he would kill her ‘stone devine dead’. Her perception was that the appellant here expressed some concern for her immediately after the event and that ‘he had a conscience.’

3 The appellant was nineteen years old when the offence was committed and accordingly twenty-three at the time of sentencing. He had forty-one previous convictions for a number of serious offences including robbery (ten offences), theft (fourteen), burglary and criminal damage but none for sexual offences. The offences had been committed between January 2012 and May 2017 and a number of terms of imprisonment had been imposed upon him in the Circuit Court: it is not clear whether the offences were summary in nature or dealt with on indictment but in any event sentences of eighteen months to be served concurrently for two robberies were imposed in 2015. He had no work experience. However, he had what might be described as a difficult start in life: his parents suffered from alcohol and drug addiction problems and, in fact, he had been brought up by his maternal grandparents. The latter was described as being a good home; at a certain point he became addicted in a similar way himself. The offences relating to dishonesty were characterised as being for the purpose of feeding his addictions.

4 The trial judge concluded that a headline sentence of twelve years was appropriate, pointing out that the offence of rape is extremely serious and stressing the aggravating factor that the offence involved two offenders. She had regard to the...