DPP v Y(N)

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 19 December 2002
• Neutral Citation: 2002 WJSC-CCA 2326
• Docket Number: [C.C.A. No. 90 of 2002]
• Court: Court of Criminal Appeal
• Date: 19 December 2002

DPP v. Y (N)

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLC PROSEUCTIONS

-v-

NY

Applicant

2002 WJSC-CCA 2326

90/02

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Appeal

Rape offence - Guilty plea - Whether custodial sentence mandatory - Criminal Law (Rape) Act, 1991 - Sex Offenders Act, 2001 (90/2002 - CCA - 19/12/02)

DPP v Y(N) - [2002] 4 IR 309

Facts: The applicant sought leave to appeal against the severity of a sentence. The applicant had pleaded guilty to two offences of rape and had received a term of three years imprisonment. On behalf of the applicant it was contended that a sentence of imprisonment was not mandatory in all such cases. It was submitted that the applicant was a person of excellent prior character and that a custodial sentence had not been warranted.

Held by the Court of Criminal Appeal (Fennelly J delivering judgment; Lavan J and Abbott J agreeing) in allowing the application in part. The learned trial judge had erred in not leaving open the possibility of a non-custodial sentence. The provisions of the Sex Offenders Act, 2001 which applied to the applicant constituted a real and substantive punitive element. It was an exceptional case and the court would suspend the balance of the remaining sentence.

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S4

SEX OFFENDER ACT 2001 S7

DPP V MCCORMACK 2000 4 IR 356

DPP V O'D 2000 IR 361

CRIMINAL JUSTICE ACT 1993 S5

SEX OFFENDER ACT 2001 S10

SEX OFFENDER ACT 2001 S26

SEX OFFENDER ACT 2001 S8

SEX OFFENDER ACT 2001 S11

AG V CONROY 1965 IR 411

CONSTITUTION ART 38

O'MALLEY SENTENCING LAW & PRACTICE 2000

SEX OFFENDER ACT 2001 S26

1 19th day of December, 2002 by FENNELLY J.

FENNELLY J.

2 This is an application for leave to appeal against severity of sentence. On 10 ^th May 2002, Carney J in the Central Criminal Court sentenced the Applicant, following his plea of guilty, to three years imprisonment concurrently on two counts, with the last nine months unconditionally suspended.

3 The Applicant pleaded guilty to two serious sexual offences. Each of these offences had been committed against the same female person (hereinafter "the victim") on 23 ^rd September 2000, namely:

4 ••rape, contrary to Section 2 of the Criminal Law (Rape) Act, 1981;

5 ••rape, contrary to Section 4 of the Criminal Law (Rape)(Amendment) Act, 1990.

6 The Applicant was aged twenty years of age at the time of the offences. He lived in Dublin. He had finished secondary school but had what could, at best, be described as an irregular lifestyle. He had a girlfriend, but apparently could not remember her second name. He was a student, had dropped out of schooling. He did odd jobs. However, he was generally well behaved.

7 The night of 22 ^nd September 2000 gives a flavour of the circumstances that formed the background to the crime committed by the Applicant. In the earlier part of that evening, he went to a rock band "gig," near the centre of Dublin, to which some friends he had been expecting to meet failed to turn up; being on his own, he went to a pub; he had about five pints. Having left the pub in the small hours, he noticed that there was a party in an upstairs flat. Somehow, after conversation from the street, he was allowed to join the party. The flat was small, but there were a number of young people there in a living room and two bedrooms. There was general conversation and some beer was consumed. A bottle of brandy was passed around; the Applicant made some drawings; he also played the harmonica. The Applicant met an American girl with whom some kissing took place and personal details, address and telephone number, (crucial later) were exchanged. This girl left about 3.30 to 4.00, by which most people were leaving.

8 The Applicant met the victim, one of the occupants of the flat, after this. They had conversation. They started kissing on a bed in one of the bedrooms. At this stage, according to the Applicant, several people were "crashed out." In very unclear and disorganised circumstances, the Applicant and the victim ended up sharing a bed in an extremely small bedroom (probably about 8'x 8') with two beds. The Applicant does not suggest that he and the victim shared that bed in any sense from which consent to sexual intercourse could be inferred. There were people asleep in the other bed. The Applicant removed clothing from the lower part of his body. However, it is clear, on the best account from the point of view of the Applicant, that the victim, having engaged in kissing with him, fell asleep lying on her stomach. There were other people asleep in the room.

9 The offences were committed while the victim was asleep. The Applicant fondled the victim and became sexually aroused. He committed both vaginal and anal rape upon her. He did not ejaculate. He knew she was asleep. There was no question of her consenting to any aspect of this behaviour.

10 The victim woke up with a jolt, realised what was happening, became shocked and distressed and told the Applicant to go home. She ran from the room and, apparently, confided in her friends. The victim, as the Applicant realised, was extremely distressed by the incident. He heard her crying in another room in the flat before leaving the flat himself.

11 The Applicant acknowledges that he knew he had gone "too far." He did not even know the girl. He accepted that at no stage did the victim consent to having intercourse with him: at no stage had they discussed having sex. He found paper and wrote a note, saying: "sorry to offend but my fault whatever I did." He did not meet the victim and left the flat. Clearly, it was possible to trace the Applicant because of the details he had earlier given to the American girl.

12 Having been traced and interviewed by the Gardaí, the Applicant made a full statement admitting the facts of the case and his responsibility for them in their entirety. He expressed regret for what he had done. According to the Garda evidence, the Applicant was very remorseful. He was cooperative. When offered the chance of an identification parade, he said it was unnecessary: he accepted his guilt and did not wish to put the victim through further trauma. As already stated, he made no attempt to claim that the victim had consented to his behaviour. He has maintained this position at all times. He has fully accepted his entire responsibility for the crimes he committed. They were the crimes of vaginal and anal rape committed against the victim at a time when she was asleep.

13 The victim was aged 19 at the time of the rape. She was a university student. She suffered psychologically rather than physically from the rape. The psychiatric report diagnosed her as suffering from depressive illness, necessitating the taking of anti-depressants, due to the rape, but after a year she had fully recovered. She declined her statutory right to give evidence.

14 A psychological report on the Applicant disclosed no features of either mental instability or of personality disorder. However, he had indulged in serious binge drinking over the previous 12 to 24 months and described himself as a borderline alcoholic. By the time of the hearing in the High Court he had taken steps to control his drinking. However, drink does not appear to be a significant factor in the offences. In any event, the quantity of drink consumed was not enormous.

15 Carney J in the Central Criminal Court, having accepted the pleas of guilty of the Applicant, heard evidence from the Gardai and from a family friend of the Applicant. The Applicant was of good character prior to the offences: he had no previous convictions of any sort. The learned High Court judge sentenced him to two concurrent terms of three years of imprisonment with the last nine months of each suspended unconditionally. Mr Patrick Gageby, Senior Counsel, on behalf of the Applicant submits that the learned trial judge erred in principle in his approach to the imposition of sentence. The decision of the learned trial judge reads as follows:

"I have indicated in many cases recently that every sentence passed in this court must be consistent with every other sentence passed and that in broad terms the sentences to be imposed should be predictable. I am dealing here with two cases of penetrative rape. The sentence I am going to impose in this case is less than what might be predicted from the document which I term the Annual Report of this court in which all sentences passed by it are set out.

There have been a significant number of cases coming before this court in which girls, young girls, young women go to sleep at a party and say that when they woke up they found somebody inside them. Juries have been remarkably reluctant to convict in this sort of case and by and large when this sort of case has gone to trial it has resulted in an acquittal and this is at the hands of, an average, evenly sexually mixed juries. It seems to me that if this case had gone to trial and taken the usual course that happens in these cases and resulted in an acquittal that the trauma of that would probably be more damaging to the victim in this case than anything that happened on the night. The accused in this incident case immediately regretted his actions and at the scene left a note behind apologising effectively identifying himself. He cooperated to a remarkable degree and took every step he could to spare the victim any further injury or trauma. This has all to be taken into account. On the other hand, I am nevertheless left in the position that I am dealing with two penetrative offences of rape and that cannot be ignored.

He is of previous good character and no doubt had a great future ahead of him. He was of an enquiring mind, obviously, and a great traveller and the affect of what I have to do will be devastating for him. I certify him as a sex...