DPP v Tiso

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 05 December 2018
• Neutral Citation: [2018] IECA 377
• Docket Number: [294/2016]
• Court: Court of Appeal (Ireland)
• Date: 05 December 2018

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

RAFAEL TISO

APPELLANT

[2018] IECA 377

[294/2016]

THE COURT OF APPEAL

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

Facts: The appellant had been convicted of a rape and sexual assaults carried out on a fellow Brazilian national, leaving the complainant with life changing injuries. He now appealed against the severity of his sentence.

Held, that the appeal would be allowed. The Court was persuaded that the sentencing judge had fallen into error slightly in the manner in which the mitigating factors were taken into consideration. On that basis, the sentence would be quashed and the appellant resentenced.

JUDGMENT of the Court delivered on the 5th day of December 2018 by Birmingham P.

1 This is an appeal against severity of sentence. Mr. Tiso was sentenced to 14 years imprisonment with one suspended in respect of counts of rape and aggravated sexual assault respectively. Lesser concurrent sentences were imposed in respect of offences of rape under s.4 of the Criminal Law (Rape) (Amendment) Act 1990, being that of oral rape, and assault causing harm under s.3 of the Non-Fatal Offences against the Person Act 1997.

2 The background to the matter before the Central Criminal Court and now this appeal is to be found in events that occurred on 18th January 2016 in the Harcourt Street/Montague Lane area of Dublin city. It should be explained that the injured party was born on 3rd August 1992 and the appellant was born on 17th March 1985. Both appellant and injured party are Brazilian nationals. On the evening in question, “Diceys”, one of the clubs on Harcourt Street, was holding a Brazilian night. Both the injured party and the appellant were in attendance. The facts were summarised by the trial judge as follows:

‘[f]rom the evidence, which included evidence of CCTV footage, the injured party was intoxicated and had also taken an Ecstasy tablet. She was, as a consequence, clearly in a very inebriated condition. The accused man worked in the rickshaw business … there is a rickshaw garage located in Montague Lane. The company for which the accused man worked has two rickshaw garages and the accused man works out of the Thomas Street garage but would have been fully aware of the location of the garage at Montague Lane. The injured party had taken an Ecstasy tablet and another Brazilian man, a mutual acquaintance of both the accused the injured party, became aware of that and was concerned for her. He asked, as a consequence, for Mr. Tiso to remain with the injured party while he got her some water. Security staff in the club were concerned about the injured party and requested that she leave the club. CCTV footage showed that she needed two members of the security staff to assist her outside the door of the club. Mr. Tiso can be seen on the CCTV footage walking behind her as she is assisted by the security men in leaving the club. The footage shows him putting an arm on her shoulders and Mr. Tiso, the accused man, and the injured party then proceed to leave. They proceed down nearby Montague Street where the injured party can clearly be seen in inebriated condition. It is clear from the CCTV footage that she falls flat on her back and she bangs her head. She is then assisted upright, but with some great difficulty by the accused man and is then brought down Montague Lane. CCTV footage shows Mr. Tiso leaving this particular area, which is a very quiet area, 40 minutes later, leaving behind the injured party who is discovered in what can only be described as a shocking condition by two men who immediately go to her assistance. One of the men, described to Gardaí, seeing a girl lying on the ground between two parked cars. He noted that her leggings were around her ankles, that she was bleeding and that a jacket covered her stomach and lower body. Her legs were spread apart and the gentleman thought that she was in fact dead. The gentleman describes a trail of blood coming from her head, her bra was exposed and he noticed blood on the ground. Gardaí were called and Gardaí told the caller to seek an ambulance and he did so. The injured party was initially brought to St. James's Hospital. There was concern that she had been sexually assaulted as a result of what the medics saw and as there was blood in particular on the mid-body region noted underneath her on the stretcher. That having been noted in the A&E Department of St. James's Hospital, the injured party was transferred to the Rotunda Hospital. She was examined there and was found to have a tear, a perineal trauma, which was too painful to examine. She was, as a consequence, sedated and a laceration was found to the wall of the rectum and the anal canal. She was then transferred to the Mater Hospital, examination revealed a tear to the anal sphincter. This required surgery in order to repair that tear and a stoma was required in the circumstances. She remained in hospital for approximately of one month. Surgery was required and the medical evidence that it was hoped to have the stoma reversed. She was on a waiting list for that procedure. She requires physiotherapy and it is hoped that the reversal procedure will have a successful outcome.’

3 In her summary, the sentencing Judge did not refer to the fact that the evidence before the Central Criminal Court indicated that the injured party was no longer capable of giving birth naturally, but in the event of becoming pregnant, would require a Caesarean section. Indeed, since then, the victim has had to face this reality.

The Judge's Approach to Sentencing

4 The sentencing Judge commented that these were undoubtedly among the most serious of offences, involving a violent and callous sexual assault perpetrated on a vulnerable, inebriated young woman, leaving her with horrific and unimaginable consequences with which she will have to live for the rest of her life. She said that to her mind, the aggravating factors were:

i. The nature of the offences,

ii. the appalling injuries suffered by the injured party as a result of the conduct of the accused;

iii. the taking advantage of a very vulnerable young woman;

iv. leading her to a quiet area known by him to be such;

v. leaving the injured party in a dreadful state in the aftermath of his violation...