Title: D. (A.), D.P.P. (People) v. [2008] IECCA 119 (14 October 2008)
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COURT OF CRIMINAL APPEAL
58/07
Finnegan J. 
Gilligan J.
 MacMenamin J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

v. 

A.D.
APPLICANT

Judgment of the Court (ex tempore) delivered on the 14^th day of October 2008 by Finnegan J.
This matter comes back before the court today on an application for leave to appeal against severity of sentence the court having dealt with an application for leave to appeal against conviction. The applicant was convicted of rape. A rape took place on the 18th March 2006 and in the judgment given on the 25th day of July 2008 on the application for leave to appeal the conviction the circumstances surrounding the same are set out in considerable detail.
The learned trial judge placed the offence in this case certainly towards the top in terms of seriousness of offences of this nature and indicated that he felt an appropriate sentence was one of fifteen years. Thereafter he took into account several matters which were quite appropriate to be taken into account and reduced that sentence to one of twelve years that being the sentence which he imposed.
This court is satisfied that the learned trial judge fell into error in placing this offence in all the circumstances at a level of seriousness meriting the term of

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imprisonment of fifteen years prior to taking into account any mitigating factors or any personal factors affecting the applicant. This court taking the following circumstances into account will substitute for that sentence an appropriate sentence.
The first matter to record is that most rapes, and this rape is no exception, are attended with circumstances of violence. The circumstances in this case were not at the extreme level of many of the cases which come before this court. There was no threat to kill. The injuries sustained by the victim were significant but not by any means life threatening or of any serious long term physical consequences. She did suffer psychologically but as recorded by the learned trial judge she made a substantial recovery within a relatively short time and resumed her life albeit with some difficulties in terms of her socialising.
This case was not attended, on the findings of the jury, with circumstances of depravity which frequently attend similar cases coming before this court. So the court takes those matters into account. The court must also take into account, of course, any assistance given by the applicant either in the course of the investigation or in the course of the trial. He did attempt to mislead the Gardai at the early stages of the investigation. He did defend the case fully and with considerable vigour but he is not to be punished for that. That is his right. However he does not obtain the benefit which he would obtain for a plea of guilty which either eliminated or reduced the effect on his victim of having to come to court, give evidence and undergo cross-examination.
His co-operation in this case arose at the trial. He did dispense with a considerable number of technical witnesses, each of whom he was entitled to require to give evidence in the hope that some error, some slip or something of that nature might have emerged which would relieve him of the consequences of his actions and

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he did not do this. Some twenty witnesses were dispensed with at the start of the trial and while this is nothing like a plea of guilty it is something that may be noted.
He has a series of convictions and indeed shortly after his arrival in this State appeared before the courts. He arrived in November 2004 and was before the courts on the 16^th February 2005. He has had a number of court appearances which resulted in convictions and six terms of imprisonment, three of those being imposed on one occasion. The offences were petty in nature but were nonetheless offences. He is, however, a young man. He was born on the 15^lh February 1984. At the time of this offence he was twenty two years of age. The court has regard to the possibility of rehabilitation.
The court having placed this matter at the level of seriousness which it considers appropriate takes into account the circumstances disclosed at the trial, the effect upon the victim and her substantial recovery within a relatively short time. It takes into account the applicant's age and it takes into account that he is a foreign national and it is generally accepted that foreign nationals within our prison system suffer more in general than someone who is of Irish nationality and is among many of his fellow citizens as opposed to someone from a distant land with limited English and the possibility of no contact with members of family or friends during what will of necessity be a long stay in prison. To some extent and that is a very limited extent the court takes into account his co-operation at the trial in relieving the State of the obligation to have many witnesses present. There is the possibility of rehabilitation.
In all those circumstances the court proposes to grant leave and treat the application as the hearing of the appeal and to substitute for that sentence of

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imprisonment imposed upon him for the offence of which he was convicted a term of nine years imprisonment.

DPP v D(2)