Irish Court of Appeal
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Cite as: [2014] IECA 37
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Judgment
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THE COURT OF APPEAL Birmingham J. Sheehan J. Mahon J. 271/13 The People at the Suit of the Director of Public Prosecutions Respondent V
Owen Power Appellant 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 helpfully quoted by the D.P.P. in her submissions and it merits quotation at this stage:-
11. It is argued that there was indeed an error in principle here and specifically it is said that there was a failure to have regard to the mental background of the appellant. To put that in context the appellant had no previous convictions, he was a young man, he was eighteen at the time the offence was committed, there were a number of significant testimonials presented on his behalf referring to the role that he played in his family and in the wider circle of the extended family and acquaintances. 12. Also 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 that at that stage also poly-substance abuse. More recently he had it seems been to a local community health centre where the diagnosis had been, again one of bi-polar effective disorder and alcohol dependency syndrome. 13. 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, it is suggested, represents an error of principle, so too it is said, did the selection of ten years as the sentence to be imposed. 14. As it happens the offence of rape is one that has been the subject of an unusual amount of review and study and attempts to group sentences together. A very elaborate exercise to that effect was carried out by Charleton J. in D.P.P. v W.D. [2008] 1 IR 308, and more recently the judicial research office which had assisted Charleton J. with the task that he has undertaken have published a report, as it were, updating the situation which report is available on the ISIS website. 15. It does appear from the large number of sentences that are reviewed, both sentences at first instance and sentences of the Court of Criminal Appeal, that a sentence of ten years is above the normal range and that is a subject to which we will return. 16. When the learned trial judge began to pronounce sentence, there were a number of matters that merit attention. At an early stage, he referred to the fact that there had been a plea of guilty and at that stage he was very properly interrupted and put right by prosecution counsel. It may be that the error that had been made served to distract the judge somewhat in passing sentence and because of that the sentence was perhaps not calibrated in the way that it might otherwise have been. Thereafter the judge indicated that he felt that the case merited a sentence of ten years imprisonment and he did so without indicating where on the spectrum of rape cases he was placing this offence, though he did refer to the fact that a particular aggravating factor was that the victim was deprived of security and sanctuary in the place where she was primarily entitled to it. That was an obvious reference to the fact that she had gone to an allocated bedroom. 17. Having regard to the previous good character of the accused, his youth, the fact that he was going to have to reconstruct his life, the learned trial judge proceeded to suspend the final three years. 18. Rape has long been recognised as one of the most serious offences in the criminal calendar. As is well known, the Supreme Court has made clear that it should normally be met by an immediate substantial custodial sentence. It is the case that the circumstances in which rape can be committed can vary widely and for that reason, sentences have varied widely from life imprisonment to suspended sentences. So far as the suspended sentences are concerned, the Supreme Court has made it clear that cases where that would be even contemplated would be wholly exceptional and let it be said at once and said emphatically that this case, following as it did a contested trial, was not one where the question of a suspended sentence could ever have been contemplated. It was always a case that required to be met by a substantial custodial sentence, and indeed as much was realistically acknowledged by counsel on behalf of the appellant. 19. The information on previous sentencing available from the ISIS website and from the decision in W.D. would indicate that this sentence of ten years albeit in part suspended was higher than sentences that were generally imposed in cases of this nature. The trial judge focused, and the debate here this morning has focused to a significant extent, on the case of D.P.P. v. Adam Keane [2007] IECCA 119, and as it happens the sentence imposed by the trial judge is the same sentence that was imposed in Keane by the Court of Criminal Appeal in acceding to an undue leniency review application by the Director, brought from a sentence that had been imposed by the same sentencing judge. There has been argument as to the extent to which it is a valid comparator. 20. In the Court’s view there are undoubtedly similarities between the two cases, but equally there are differences. It is the case that the Keane rape was committed in the course of what was in effect a burglary, the entry of a dwelling without permission and as the courts have made clear every burglary is a serious offence. Every burglary is potentially a violent offence, but the commission of a rape in the course of an unauthorised entry of a dwelling does, it seems to this Court, bring it into a very particular category of its own. 21. If one puts the Keane case to one side in the sense of not taking the view that it is a precise comparator to be applied directly, but one simply to be considered along with other cases, then the sentence of ten years part suspended does appear to be out of line. It is therefore the Court’s view that in imposing the sentence that was imposed, a sentence of ten years imprisonment, and in failing to address the question of the relevance of the mental health issues which were potentially relevant at two levels: relevant in the sense that it formed part of the background of the individual who was being sentenced, but it also was potentially relevant in terms of how the person who was going to be sentenced would cope in prison and how prison would affect them, that the sentencing court was in error. 22. It seems to the Court the combination of those factors means that there was an error in principle and that it is one that this Court should address. Therefore, having regard to the matters that were identified by the trial judge as relevant, both the circumstances of the offence - and that includes the fact that this involved an unwelcome and uninvited entry into someone’s bedroom - and the fact that the offence was committed by a young person without previous convictions with the particular factors in his background to which there has been reference, the Court views that the appropriate sentence is one not of ten years, but one of seven and a half years imprisonment. The three years suspension provided for by the trial judge will remain in place as will the provision in relation to post release supervision. The Court will add one additional requirement in terms of the suspension, and that is that while in custody and before his release that the appellant must participate in and commit himself to the Better Lives Programme which is provided by the Prison Service. |
