DPP v W.D.

 
FREE EXCERPT

[2007] IEHC 310

CENTRAL CRIMINAL COURT

BILL NO. CC 50/2006
DPP v DROUGHT
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
V.
WAYNE DROUGHT

CC50/2006 - Charleton - Central Criminal Court - 4/5/2007 - 2008 1 IR 308 2007 18 3617 2007 IEHC 310

DPP v TIERNAN 1988 IR 250 1989 ILRM 1988 DULJ 155

R v ROBERTS 1982 I WLR 133

R v TAYLOR 1983 CAR(S) 241

CRIMINAL JUSTICE ACT 1999 S29

DPP v MCC (R) UNREP CCA 12.5.2005 2005/21/4381 2005 IECCA 71

DPP v R (J) UNREP 5.12.95

DPP v S (M) 2000 2 IR 592 2000 2 ILRM 311 1999/9/2133

PEOPLE, DPP v M 1994 3 IR 306 1994 2 ILRM 541

R v WARNER 1946 OR 808

DPP v HOLLAND UNREP BARRINGTON 15.6.1998 1999/8/1804

DPP v O'D (R) 2000 4 IR 361

DPP v Y (N) 2002 4 IR 309

PEOPLE (DPP) v G (D) UNREP CCA 13.7.2004 2004/15/3395 2004 IECCA 17

DPP v McLAUGHLIN 2005 3 IR 198 2005 22 4440 2005 IECCA 91

DPP v MAHER UNREP CCA 18.12.2002 2003/17/3882

R v DREDGE 1998 1 CAR(S) 285

R v MILLS 1998 2 CAR(S) 252

R v PERKS 2000 CLR 606

R v GREAVES 1999 1 CAR(S) 319

R v BILLAM & ORS 1986 1 WLR 349

BANKS ON SENTENCING (WITH 2003 SUPPLEMENT) 2002 484

DPP v D (S) UNREP FLOOD 29.7.1997 1998/15/5444

DPP v G (J) UNREP KEANE 10.3.1999 1999/8/1847

PEOPLE (DPP) v J (G) UNREP CCA 10.3.1999

DPP v G (W) UNREP CCA 1.11.2004 2004/15/3458

DPP v MCC (G) 2003 3 IR 609 2003 18 4030

DPP v MELIA UNREP CCA 29.11.1999 2000/8/2798

DPP v BERMINGHAM UNREP GEOGHEGAN J 5.4.2005 (EX TEMPORE)

DPP v D UNREP CCA 21.5.2004 2004 IECCA 8

DPP v MCC (R) UNREP CCA 12.5.2005 2005 IECCA 71

DPP v KING UNREP CCA 7.4..05 (EX TEMPORE)

LAW REFORM COMMISSION CONSULTATION PAPER ON SENTENCING (CP 6 1993) 1993 PARA 5.31

LAW REFORM COMMISSION CONSULTATION PAPER ON SENTENCING (CP 6 1993) 1993 PARA 5.51

SEX OFFENDERS ACT 2001 S33

Abstract:

Criminal law - Practice and procedure - Sentencing law - Rape - Appropriate tariff -Sentencing principles - Suspension of sentence - aims - Sex Offenders Act 2001

1

1. After a trial lasting four days, the accused was convicted on 16th March, 2007, of one count. The jury found that on Thursday 9th December, 2004, at the quay in Waterford the accused raped a student who was then attending a third level college in the area.

Facts
2

2. The victim had finished a set of examinations at third level. She was invited to a party at the flat of a friend because it had been decided that Christmas should be celebrated more than two weeks early. At the party, she drank tea, wine and vodka. The details are unclear but, whatever she had to drink, the effects were delayed. Together with some of her friends, who were girls like her in their late teens or early twenties, she first of all went to the "Ten Nightclub". There, after a time, she was asked to leave because she was adjudged to be too drunk by the security staff. With a friend she then went to "Oxygen Nightclub", which is nearby. It seems that she met the perpetrator there and that they then went back into the "Ten Nightclub". At shortly after 00.35 hours the accused escorted her outside and accompanied her up John Street, past the Town Hall, around by Reginald's Tower and onto the quays. On the way, there was at least one consensual kiss but the activity between the perpetrator and the victim did not go beyond that level. When they had gone no more than a couple of hundred metres from Reginald's Tower the perpetrator pushed the victim into a recessed doorway.

3

3. This place was a very short distance away from the victim's flat, a fact unknown to the perpetrator. The perpetrator pushed the victim to the ground. He was very much aided in overpowering her by the effects of the alcohol which she had drunk earlier and by the fact that she had not eaten for the entire day. In her account to the jury she recalled the perpetrator being on top of her. She said to him "I thought you were just walking me home". She then recalled him pulling down her trousers and underwear and forcing himself inside her. The attacker ripped her clothing and tore away the zipper of her trousers from the surrounding fabric. She was just finishing a menstrual period and had a tampon in place. In the aftermath of the attack, because of pain, she removed the tampon and went up the quays in the direction of her flat. The rapist had, by this stage, gone off in the opposite direction. On the quays, the victim wandered past a middle-aged couple who saw her state of dishevelment and distress. They stopped her, questioned her and then insisted on calling the gardaí. The victim was brought quickly to a hospital. There, she was medically examined and the injuries that were found on her body were consistent with her account of being forcibly subjected to sexual intercourse.

4

4. At the trial, the perpetrator did not give evidence. Instead, he relied upon a series of statements that he made to gardaí when he was arrested some days after the attack. In these, he claimed that the entire event was consensual, to the extent that he was a willing partner in sexual intercourse with the victim. The defence case was constructed cleverly by the perpetrator to take account of all the incontrovertible facts of the case and this story was altered by him during his interviews by the gardaí to take into account every new fact that he discovered.

Issue
5

5. My function today is to decide what sentence is appropriate to the perpetrator in the circumstances of this case. Courts are guided by precedent. It can be argued that the circumstances of the perpetration of the same offence by different offenders on different occasions can be so varied that previous decided cases are of little assistance. It can also be asserted that cases can, notwithstanding variation, have similarities which become apparent once particular factors are identified as being of importance in sentencing. These factors, and the range of variability that they bring about, can be ascertained in previous rulings of this Court, the Court of Criminal Appeal and the Supreme Court. It is not my intention to establish guidelines for the sentencing of offenders who have been found guilty of rape. It is my function, however, to place the sentencing of this offender within the parameters of the existing law and practice so that the disposal of this case can be regarded as being consistent with the penal policy of the Superior Courts in dealing with rape cases. To that end, I have attempted to examine all the previous reported and unreported decisions of the Superior Courts which are relevant and, together with the judicial research section of the High Court, an analysis has been conducted of the sentences imposed by this court, or reviewed on appeal, from January, 2005 to date. In this judgment I refer to some of these. I have also asked the parties to refer me to any sentencing precedents which they consider may be of help. The remarks which follow are based on this exercise. The result is an attempt to divine both the relevant sentencing principles and the parameters within which such a sentence can be imposed for the sake of consistency and predictability. Here, I am looking solely at actual sentences of imprisonment. In many of the cases a certain portion of a sentence was suspended to encourage good behaviour after release. The question that I have posed is simply as to how long a period of imprisonment a perpetrator is required to serve and in what circumstances.

General Principles
6

6. Rape is an extremely serious offence. It carries a penalty of life imprisonment. There is no minimum mandatory sentence as, in the sphere of indictable crime, the judiciary have always set their own parameters as to the disposal of cases. Often these are not apparent through any other exercise than long practice. Nonetheless, they exist and they can be discovered by a scrutiny of decided cases.

7

7. Rape constitutes a savage attack on the bodily and psychological integrity of a woman. It overrides her right to privacy in the most intimate area of human relationships. It discounts her personality by imposing a complete nullification of her existence as a sentient person who is entitled to choose where to place her affection. Rape is always accompanied by either violence or fraud; as the obliteration of choice in sexual conduct may only be brought about through drugging the victim or through mis-using the natural physical strength of the male to imprison and then degrade the victim in order to bring about unwanted sexual penetration. In many of the cases, physical harm results. In rape, affection or sexual recreation is replaced by the opposites of violence and degradation. Attacks can result in pregnancy and in the transmission of venereal disease. Even when these, as in the great majority of cases, do not result, the victim is ordinarily left in fear and trepidation of such consequences.

8

8. I believe that all the judgments of the Superior Courts that concern rape sentencing reflect these fundamental concerns. This is why in The People (Director of Public Prosecutions) v. Tiernan [1988] 1 I.R. 250, the Supreme Court, through Finlay C.J., stated at p. 523 that although it is necessary to consider the particular circumstances that might be applied to the sentence of each offender, "It is not easy to imagine the circumstances which would justify the departure from a substantial immediate custodial sentence for rape". The Supreme Court expressed the view that because of...

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