DPP v T.v

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards.
• Judgment Date: 06 December 2016
• Neutral Citation: [2016] IECA 370
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. CCA 336/2012
• Date: 06 December 2016

[2016] IECA 370

THE COURT OF APPEAL

Edwards J.

Sheehan J.

Edwards J.

Butler J.

Record No. CCA 336/2012

The People at the Suit of the Director of Public Prosecutions

V

T.V.

Appellant

Crime & sentencing – Sexual offences – Rape – Appeal against severity of sentence

Facts: The appellant had been convicted of an offence of rape committed in relation to a female sleeping in her bed after her birthday party. He submitted that the Judge had failed to balance the aggravating and mitigating factors correctly.

Held by the Court, that the appeal would allowed. The Court was satisfied that despite the aggravating factors present, the trial Judge had fallen into error in relation to the headline sentence applicable. On that basis the sentence would be varied. DPP v Power [2014] IECA 37; [2014] 11 JIC 2804 applied

Judgment of the Court (ex tempore) delivered 6th of December 2016 by Mr. Justice Edwards.

Introduction

1 In this case the appellant was convicted by a jury in the Central Criminal Court on the 18th of October, 2012, on a count of rape, contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act, 1981 (the Act of 1981) as amended by s. 21 of the Criminal Law (Rape)(Amendment) Act, 1990.

2 On the 26th of November, 2012, the appellant was sentenced to eleven years imprisonment, with the last three years thereof suspended upon conditions, the sentence to date from the 18th of October 2012. He was also required to submit to a period of post release supervision, and was placed on the sex offenders register. The appellant now appeals against the severity of his sentence.

The facts of the case

3 The detailed facts of the case are set forth in this Court's earlier judgment delivered on the 8th of November 2016. However, they may be summarised as fcomplainant in the case was Ms A.O'C. On the evening of Friday the 18th of December 2009 the complainant, a young woman in her twenties, who was living with two other girls in a three bedroom duplex apartment in a suburb of Cork, had been celebrating with some friends in advance of her birthday. They had visited a number of bars in Cork city. Having left the Bodega bar in the early hours of the 19th of December, 2009 the group travelled back to the apartment in two separate vehicles, one of which was a taxi and the other of which was a private car driven by a member of the group who, as designated driver, had not been drinking. A O'C was in the first vehicle to leave, which was the taxi, and she was accompanied by three other girls. The remainder travelled in the other vehicle, one of whom was J.F who was also living in the apartment with A.O'C., and who had the only key to the apartment.

4 When the taxi arrived at the apartment, A O'C and her companions, not having a key themselves, were required to await the arrival of the second vehicle, before they could gain admittance. As they were waiting another taxi arrived and two men got out. A O'C engaged them in conversation and suggested to them that as she and her friends would be staying up for a while to drink, they were welcome to call over. The two men, one of whom was the appellant, then went into their own house across the road from the apartment.

5 J.F., duly arrived at about 3.15am and admitted A O'C and the rest of the party to the apartment. Shortly afterwards the appellant and his companion arrived into the apartment, and they had bags with them containing some cans of beer. They were Hungarian. One had a tight haircut and was very quiet. The other, the appellant, was more talkative, had dark hair and spoke good English.

6 While some of the girls retired, and to bed on mattresses laid out on an upstairs landing, A O'C stayed up drinking and listening to music in the kitchen with J.F and some others including the two Hungarian men. At one point the appellant came over and placed his hands on the complainant's hips. He said he was a dancer in Hungary and that she didn't know how to dance. The appellant tried to move the complainant's hips, but the complainant felt uncomfortable and removed his hands and walked away from him.

7 At approx 5.00am J.F. went upstairs to bed. The complainant followed her and chatted with her trying, unsuccessfully, to persuade her to come back downstairs. The complainant then went downstairs herself and met S.McG, who was an Irish work colleague, and returned to the kitchen with him. The only other persons downstairs at that stage were the appellant who was also in the kitchen, and another girl who was on the telephone in the sitting room. The quieter Hungarian man had gone home a short time earlier. A O'C concluded that the night was over and went back upstairs. At this point it was estimated to be 5.30am/5.45am.

8 Having gone upstairs to go to bed the complainant undressed, save for her underwear, and put on a nightdress. She then got into bed and went to sleep. The next thing she recalled was waking up due to a stabbing pain in her vaginal area. She opened her eyes and found a man's body on top of her. It was the appellant and he was putting his penis in and out of her vagina, and breathing heavily. The complainant's evidence was that she had not physically resisted because she felt completely paralysed and that she could not move or breathe. She had her nightdress on but it was pushed up, and her underwear had been removed. She recalled pain, and focussing completely on trying to close her legs which she eventually succeeded in doing. After the appellant had stopped, the complainant then lay there for a few minutes.

9 The next thing the complainant recalled was hearing some rustling at the end of the bed. She then got up, turned on the light and told the appellant to leave the house, which he did. There was blood visible on the bedsheets and the appellant asked the complainant if she was having her period. The complainant responded ‘No. Get out of my house’. The appellant then asked the complainant if she had been a virgin, and the complainant just repeated ‘Get out of my house’. The complainant stated that the appellant appeared worried. The appellant then dressed himself and left.

10 When the appellant had left the complainant found that she was bleeding quite a bit, so she put on underwear and applied a panty liner and then went to J.F.'s bedroom and woke up J.F. The complainant was shaking and crying and she spoke to J.F. J.F., in her testimony, characterised the A.O'C as hysterical. She just cried and complained repeatedly about being in pain, before eventually falling asleep in J.F.'s bed. About an hour later A. O'C woke up. J.F. then called a doctor. The Gardai were also notified by one of A. O'C's friends, and two female Gardai later attended at the apartment and spoke to AO'C who was unwilling at that point to make a formal statement as she was too distressed. A. O'C was prevailed upon to attend a sexual assault unit, which she did.

11 The complainant contacted the Gardaí again in mid May 2010 to indicate that she now wished to make a formal complaint. A formal statement of complaint was taken from the complainant on the 29th of May 2010.

12 The appellant was subsequently arrested having attended a Garda Station voluntarily and by appointment. Following his arrest he was detained, and was interviewed while in detention. In the course of being interviewed he admitted having sexual intercourse with A O'C but said it was consensual.

13 The appellant did not give evidence at the trial.

The appellant's personal circumstances:

14 The appellant was born in 1987 and was 25 years of age at the date of his sentencing on the 19th of November 2012. He had been 22 at the date of the offence. He is originally from Hungary where his father, mother and brother still reside. He was living in a suburb of Cork at the time of the offence and was working as a waiter in a restaurant.

15 The appellant had no previous convictions.

The impact on the victim

16 A O'C made a victim impact statement that was read into evidence at the sentencing hearing. In it she stated (inter alia):

‘Before the 19th of December 2009, the life that I had imagined for myself for many years was starting to come to fruition. I had a good job, a great network of friends, my health and. more importantly, my happiness. I'd worked hard through college and school for many years and dedicated myself to building a successful life. On the night of the 18th of December, when the accused raped me, that night that I had held so precious came crashing down around me. Everything was in ruins around me and 1 was unable to put it back together. I feel I have been invaded in the most inhumane and arrogant way. An unimaginable darkness has made its way into my life and it will plague me forever more. My body and my privacy have been invaded in the cruellest and most reckless manner conceivable. My once happy and positive mind set has to constantly battle with reoccurring dark and disturbing memories of the night I was raped. Putting words on the months that followed the rape is very difficult for me. When I reflect on that time, every' day seems like a haze. I was going through the motions of days and weeks, but had become very disconnected from the reality of what had happened to me. My ability to feel was gone and I remained numb for many months. I couldn't even feel my own hurt and pain for the loss I had suffered. It's as if these emotions were too overwhelming for me at the time. Since then. I could never have imagined the changes that have came into my life, my motivation and focuses have shifted from progression and getting ahead in life, to just being able to get up and get dressed in the morning. Function in my day-to-day life was an ongoing struggle every single day. Some days, I had the energy for that struggle and more days I had to surrender to my...