DPP v RT

 
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[2012] IECCC 1

THE HIGH COURT

[No. 0094 CCDP/2010]
DPP v T (R)
CENTRAL CRIMINAL COURT

Between

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Prosecutor
v.
R.T.
Accused

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

OFFENCES AGAINST THE PERSON ACT 1861 S48 (UK)

CRIMINAL LAW (RAPE AMDT) ACT 1990 S21

DPP v M 1994 3 IR 306

DPP v MCCORMACK 2000 4 IR 356

DPP v DROUGHT UNREP CHARLETON 4.5.2007 2007/18/3617 2007 IEHC 310

DPP v W (TC) UNREP CCA 14.10.2010 2010/17/4226 2010 IECCA 95

DPP v BYRNE UNREP CCA 31.1.2000 2000/7/2442

DPP v O'C (P) UNREP CCA 5.11.2009 2009/18/4374 2009 IECCA 116

DPP v D (G) UNREP CCA 13.7.2004 2004/15/3395

O'MALLEY SENTENCING LAW AND PRACTICE 2ED 2006 459

SEX OFFENDERS ACT 2001 S8(3)(D)

SEX OFFENDERS ACT 2001 S28

CRIMINAL LAW

Sentencing

Sexual assault - Principles of sentencing - Mitigating factors - Previous convictions - Character of accused - Range of sentences - Sex offenders register - Whether appropriate to impose suspended sentence - Whether appropriate to order post-release supervision - The People (DPP) v M [1994] 3 IR 306; The People (DPP) v McCormack [2000] 4 IR 356; The People (DPP) v Drought [2007] IEHC 310, (Unrep, Charleton J, 4/5/2007); The People (DPP) v TCW [2010] IECCA 95, (Unrep, CCA, 14/10/2010); The People (DPP) v Byrne (Unrep, CCA, 31/1/2000); The People (DPP) v PO'C [2009] IECCA 116, (Unrep, CCA, 5/11/2009) and The People (DPP) v GD (Unrep, CCA, 13/7/2004) considered - Offences Against the Person Act 1861 (UK), s 48 - Criminal Law (Rape) Act 1981 (No 10), s 2 - Criminal Law (Rape) Amendment Act 1990 (No 2), ss 2 & 21 - Sex Offenders Act 2001 (No 18), ss 8, 28 and 37 - Suspended sentence imposed (2010/0094CCDP - Sheehan J - 2/3/2012) [2012] IECCC 1

People, (DPP) v RT

2010/0094CCDP - Sheehan - High - 2/3/2012 - 2012 13 3782 2012 IECCC 1

Facts The accused was found guilty by a jury of sexual assaulting his wife”s sister at their home. The evidence showed that all parties had been drinking alcohol on the night in question and the accused digitally penetrated the injured party, whilst she was sleeping. The accused immediately desisted when asked to do so and he apologised thereafter. The accused suggested in a police interview that he believed the injured party had consented. The injured party declined to submit a victim impact statement. The accused admitted he had committed a gross violation of the injured party, which had caused great suffering for her and also for his wife and son. The accused had no previous convictions and his good character was emphasised by a character witness and three testimonials. Prior to the offence, the accused was very involved in local community matters but since the incident he moved home with his family. He was deeply remorseful and ashamed of his actions.

Held by Sheehan J. in imposing a suspended four year sentence: That the maximum sentence for sexual assault is ten years imprisonment and conviction for such an offence also requires that an accused be placed on the Sex Offenders Register, which is a punishment in itself. The particular offence herein fell within the lower level of the middle range. Taking all relevant circumstances into account a sentence of four years imprisonment was imposed. However, this case was exceptional and there were strong mitigating factors which made it appropriate to suspend that sentence in its entirety for a period of four years. The accused was placed on the Sex Offenders Register for a period of five years but post-release supervision was not deemed necessary.

[1] Overview
2

2 [1.1] The accused was charged with two offences arising out of the same incident; namely the offence of sexual assault against C.M. contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001 and the offence of rape contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. On the 15th November 2011, the jury in the trial before the Central Criminal Court acquitted the accused of the charge of rape but found him guilty of the sexual assault of C.M.

[2] Factual background
2

2 [2.1] The circumstances in which the offence took place can be described as follows. The events occurred on the 24 th January 2010. C.M. is the sister of E.M. who, at the time of the assault, was living with R.T., their young child and E.M's two children from a previous relationship. On the 23 rd January, C.M. went to her sister E.M's house, with her seven year old son and three year old daughter, intending to spend the night with her and staying over at her home as was common practice. During the course of the evening, the children went to bed. E.M. and C.M. had some wine and R.T. and E.M's eldest son, J.M., went out socialising.

3

3 [2.2] At approximately 3am on the morning of the 24 th January, R.T., J.M. and another friend returned to the house. They were drinking alcohol and chatting and at approximately 4am, E.M. went to bed, followed by C.M. about 4.45am. The bedroom in which C.M. was staying was the only bedroom on the ground floor of the house. Her two children were already sleeping in the double bed. She described getting into bed alongside her daughter and she described herself as being "sleepy drunk" having drunk one and a half bottles of red wine at that stage. C.M. then recalled that she must have fallen asleep and the next thing she remembered was someone inserting their finger in her vagina. At first she thought it was her partner but when she saw that it was R.T. who was beside her, she shouted "Stop" and pushed him away.

4

4 [2.3] R.T. left the room and C.M. went to J.M's room in a state of distress. A certain amount of commotion ensued with a lot of shouting and R.T. apologising for what had happened. C.M. returned to her own home and R.T....

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