DPP v Power

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 28 November 2014
• Neutral Citation: [2014] IECA 37
• Docket Number: 271/13
• Court: Court of Appeal (Ireland)
• Date: 28 November 2014

[2014] IECA 37

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

271/13

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Owen Power

Appellant

Criminal law - Appeal against severity of sentence – Rape - Mental health background of appellant - Whether error of principle - Factors of consideration when arriving at appropriate sentence

Facts On 2 ^nd December 2013 the appellant was convicted and a 10 year sentence was imposed with 3 years suspended. Provision was made for 18 months post-release supervision. The sentence was backdated to 22 ^nd July 2013 being the date he went into custody. The sentence was one that followed a contested trial. It concluded with the conviction of the appellant in respect of the offence of rape.

The event in question took place on 4 ^th February 2012. The complainant, Ms M, who was 19 at the time, travelled to Wexford with her father and his partner. She arranged to meet a friend, Ms A, and that evening the pair went socialising. At 3am Ms M, Ms A, the appellant and another young man went to an apartment in Windmill Heights. Ms M wanted to go to sleep. She got into her pyjamas and went to bed. At trial, and this was a point of some significance, there was evidence that Ms A saw the appellant going to the room where Ms M was and told him to get out. Ms M woke to feel hands on her genital area and breasts, screaming ‘you raped me’. She pushed the appellant out of the way and went to the room of her friend Ms A. She then rang her father and asked him to come to her. He came and he apparently punched the appellant and sought to detain him. The appellant was later arrested and when the doctor certified him as fit for interview, he was interviewed and he confirmed that sexual intercourse had taken place and said that it was consensual.

The appellant argued the sentence was one that was erroneous in principle. It was specifically contended that there was a failure to have regard to the mental background of the appellant. Before the Court was information to the effect that he had in the past attended the Adolescent Psychiatry Service and that he had been diagnosed as experiencing bi-polar effective disorder and poly-substance abuse.

It was suggested the failure of the sentencing judge to advert to the information that had been put before the court in relation to the appellant’s mental health situation represented an error of principle, so too, did the selection of ten years as the sentence to be imposed.

Held Having regard to the matters that were identified by the trial judge as relevant, both the circumstances of the offence (including the fact that it involved an unwelcome and uninvited entry into someone’s bedroom) and the fact that the offence was committed by a young person with no previous convictions and having regard to the particular factors of his background, the Court deemed the appropriate sentence was one not of 10 years, but one of 7 and 1/2 years imprisonment. The 3 years suspension provided for by the trial judge would remain in place, so too would the post-release supervision. The court sought to add one additional requirement in terms of the suspension, that while in custody and before his release, the appellant must participate in and commit himself to the Better Lives Programme provided by the Prison Service.

Judgment of the Court (ex tempore) delivered on the 28th day of November 2014, by Mr. Justice Birmingham

1 In this case the appellant, Mr. Owen Power, appeals against the severity of a sentence that was imposed upon him in the Central Criminal Court on the 2nd December, 2013. The sentenced under appeal is one of ten years imprisonment with the final three years suspended and there is also provision made for eighteen months post release supervision. The sentence was backdated to the 22nd July, 2013 being the date he went into custody, and it should be noted that at this stage that the sentence was one that followed a contested trial which concluded with the conviction of the appellant in respect of the offence of rape.

2 In very brief summary the facts are these. On the 4th February, 2012 the complainant, Ms. M., who was aged 19 at the time, travelled to Wexford with her father and his partner. There she met up with a friend of hers, Ms. A., and went out socialising with her. Through Ms. A, she met up with a group of Ms. A.'s friends, including the appellant. Ms. A. and the appellant had never met before then. There is no indication whatsoever of any romantic engagement or involvement or attraction or still less any intimacy between Ms. A. and the appellant during the course of the evening. It seems that a significant amount of alcohol was consumed by those who were socialising.

3 At about 3.00am Ms. M., her friend Ms. A, the appellant and another young man all went to an apartment in Windmill Heights, which was an apartment owned by the partner of the mother of Ms. A. Ms. M. says that by this stage, all she wanted to do was to go to bed. She went to the bedroom that she was to occupy, got into her pyjamas and went to sleep immediately. At trial, and this was a point of some significance, there was evidence that Ms. A. saw the appellant going to the room where Ms. M. was and told him to get out.

4 The next event of significance is that Ms. M. woke to feel hands on her genital area and breasts. She felt her vagina being penetrated and she screamed “you raped me, you raped me”. She pushed the appellant out of the way and went to the room of her friend Ms. A. She then rang her father and asked him to come to her as he was needed by her. He came and he apparently punched the appellant and sought to detain him.

5 At that stage, rather remarkably, the appellant went off to the garda station to complain that he had been assaulted by the complainant's father and that, as the Court understands it, was the first indication the gardaí had that anything untoward or controversial had occurred at Windmill Heights.

6 At the garda station the appellant was in a clearly intoxicated state and he was still there in the vicinity of the garda station when the gardaí became aware that there was an allegation that a rape had taken place. He was arrested and when the doctor certified him as fit for interview, he was interviewed and he confirmed that sexual intercourse had taken place and said that it was consensual.

7 A trial took place in July 2013, the verdict was returned on the 22nd July and sentence was then adjourned to the 23rd November, 2013, when the substantive sentence hearing took place and the finalisation of sentence occurred on the 2nd December, 2013.

8 A victim impact report was prepared in advance of the sentence hearing. It must be said immediately, that this rape has had a very serious effect and indeed a long term effect on the injured party. A measure of that is, that she was so traumatised that she was unable to attend the sentence hearing in December 2013, which was taking place nearly two years after the rape had occurred. The victim impact report is...