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Cite as: [2011] IECCC 5

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Judgment Title: DPP -v- CF

Neutral Citation: 2011 IECCC 5

Central Criminal Court Record Number: 2008 88CC

Date of Delivery: 28/10/2011

Court: Central Criminal Court

Composition of Court:

Judgment by: Sheehan J.

Status of Judgment: Approved

Neutral Citation Number: [2011] IECCC 5

THE HIGH COURT

CENTRAL CRIMINAL COURT

[2008] NO 88. CC

Between

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

Prosecutor

C.F.

Accused

Judgment of Mr. Justice Garrett Sheehan delivered on the 28th October 2011

[1] Overview
[1.1] On the 22nd July 2011 a jury convicted C.F. in relation to all five counts on the indictment; namely rape, attempted rape, rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990 and false imprisonment in relation to the complainant B.K. and a count of sexual assault against C.M.

[2] Factual background
[2.1] All the offences occurred in the early hours of the 16th September 2007. The circumstances of the sexual assault on C.M. were as follows. C.M. met the accused, C.F., in a fast food restaurant in the town following an evening socialising in pubs and a nightclub. She accepted an offer of a lift home with the accused, went to his car and the next thing she remembered was waking up in the car in a field. The accused was kissing her. She had his penis in her hand and he was touching her vagina. She told him to stop and he did so. He drove her home and he asked her for her telephone number, whereupon she gave him a telephone number and he later gave this to the gardaí when he was arrested in respect of the offences against B.K. the following day. As a result of this the gardaí contacted C.M.

[2.2] Having left C.M. to her home, C.F. returned to the town where he encountered B.K., who had been out socialising with her then partner in some public houses and a nightclub. She had an argument with her partner and was trying to get a lift home on her own. She had no shoes on and she recalled a car stopping on the street which she got into. The accused, instead of driving her straight home, stopped the car in a country lane and prevented her from getting out. A struggle ensued in the course of which she broke the windscreen with her feet. She was screaming at the accused but calmed down when he said he would drive her home. However, he drove on and stopped again a short while later with the passenger door against a brick wall. The accused jumped on the complainant and a further struggle ensued. She tried to fight him off but was unable to do so as he was stronger than her. He pulled down her jeans and raped her. He did not ejaculate and he then asked her to perform oral sex on him which she did out of fear saying that she believed she would be killed if she did not. He did not ejaculate and then attempted to have anal sex with her. She kept screaming and eventually he stopped trying. He then drove her home. In the course of her struggle with the accused, B.K. suffered considerable bruising to her breasts, chest, arms and legs and she also had bruising on her face.

[3] Facts arising from the sentencing hearing
[3.1] This Court has taken into account the submissions of counsel for the accused, the probation report furnished to the Court, a number of certificates in respect of courses completed by the accused, the reference of the prison chaplain and the letter the accused himself wrote to the Court. With regard to the victim impact report of B.K., the Court notes her courage and the hopeful note on which she ends her statement. Since the event she has got married and has had two children. The Court also notes the contents of the victim impact report of C.M. who also ends her statement on a hopeful note.

[3.2] With regard to the risk assessment reports contained in the probation report these are, as counsel for the accused rightly points out, made in the context of the absence of interventions that would enable the accused to become fully reintegrated into society. What is surprising about the probation report is that, while anticipating the imposition of a prison sentence, no reference is made to the rehabilitation programmes available in Irish prisons today and no reference is made to the fact that while in prison since the commission of these offences the accused has already completed a number of courses. The Court refers in particular to the two certificates the defendant received from the Alternatives to Violence Project Ireland as well as the Samaritans Listener Course which he attended while in Wheatfield Prison. It is also surprising that the probation officer was unaware that the accused had engaged with the counselling services available to him in prison.

[4] Determining the appropriate sentence in sexual offence cases
[4.1] In determining the appropriate sentence in this case, the Court has considered the submissions of counsel on behalf of the Director of Public Prosecutions who told the Court that it was the view of the Director that the appropriate sentence for the sexual assault on C.M. was in the four to seven year range and that the appropriate sentence for the rape of B.K. was in the nine to fifteen year range. Counsel referred the Court to the judgment of Charleton J. in the Director of Public Prosecutions v. W.D. [2007] IEHC 310, the decision of the Court of Criminal Appeal in the Director of Public Prosecutions v. Richard Finn [2009] IECCA 96 and four copies of newspaper reports of cases in which sentences were imposed by the Central Criminal Court, two of which related to one case. I have read and considered all these cases. It is clear that in the case of the Director of Public Prosecutions v. Richard Finn there were aggravating features which were far more serious than in the present case. Obviously, the personal circumstances of the accused in this case are also considerably different to those of the accused in the Director of Public Prosecutions v. Richard Finn.

[4.2] In considering the question of imprisonment, this Court is mindful of the recent reports of Judge Michael Reilly, the Inspector of Prisons. It is clear from these reports that Irish prisons are seriously overcrowded at present and that this is impacting adversely on the services available to prisoners. It is also clear from these reports that those in prison today are subject to risks to their physical and mental health over and above what one would normally associate with a sentence of imprisonment. One is led to conclude that the punitive aspect of a prison sentence today is aggravated by the conditions referred to by the Inspector of Prisons. This Court considers the submissions in this case in the light of the judgment of the Supreme Court in the Director of Public Prosecutions v. Tiernan [1988] 1 I.R. 250 and the judgment of the Supreme Court in the Director of Public Prosecutions v. M [1994] 3 I.R. 306. In the course of his judgment in the Director of Public Prosecutions v. Tiernan, Finlay C.J. stated at p.254 that:- “Having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases”.

[4.3] In the Director of Public Prosecutions v. M [1994] 3 I.R. 306, Denham J. stated that sentences must be proportionate to the crime and the personal circumstances of the offender. In that case, Egan J. considered the correct manner in which a sentencing judge should determine a sentence in respect of an offender and concluded at p. 315 that:- “One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.” In the Director of Public Prosecutions v. McCormack [2000] 4 I.R. 356, the Court of Criminal Appeal stated at p. 359 that: - "Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts, but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused”.

[4.4] The Court in considering the appropriate penalty in this case is obliged to bear in mind the principle of proportionality and to reconcile that with the aim of rehabilitation. In the Director of Public Prosecutions v. M [1994] 3 I.R. 306, Denham J. held that any sentence imposed must be proportionate to the circumstances of the case having regard to the nature of the offence, its effect on the victim and the circumstances of the convicted person. A relevant and necessary factor to be considered in this context is the prospect of successfully rehabilitating the convicted person so that he would not have any propensity to reoffend. This leads the Court on to a consideration of the particular prospects of this accused successfully rehabilitating. It is clear, first of all, from the letter he wrote to the Court that he is remorseful for the crimes he committed and that his apology to the victims is sincere even if he needs to develop his capacity for greater empathy. The letter from the chaplain speaks of his excellent behaviour in prison, his respectful and courteous attitude to her, his willingness to engage in counselling and that he has already started this counselling. This letter also refers to his seriously dysfunctional childhood, his parents' excessive drinking and the sexual abuse perpetrated on him by someone outside his family during his young years.

[4.5] With regard to the mitigating and aggravating factors this Court concludes the following. The Court considers the injuries suffered by B.K. and her detention in the car against her will as aggravating factors. The Court considers the following to be the mitigating factors: first, C.F's remorse and apology; secondly his personal circumstances and these are outlined above; thirdly his willingness to engage in a real way with whatever rehabilitative opportunities are offered to him and in particular to avail of counselling services; fourthly the degree of cooperation with the gardaí and, to a lesser extent, the absence of relevant previous convictions and in this regard the Court refers to the judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. Richard Finn [2009] IECCA 96 where this was held to be a mitigating factor.

[4.6] The other matter that is relevant to sentencing in this case is the placing of the accused on the Sex Offenders Register. This is a very real punishment which will impact upon the accused's life. Section 10 of the Sex Offenders Act 2001 requires the accused to notify the gardaí of certain information for an indefinite period if he is sentenced to a period of imprisonment in excess of two years. It is necessary to notify the gardaí of his name, including any names by which he is known, his home address, any change of name or address, any return to the State having been abroad for seven days or more, any intention to leave the State for seven days or more together with the address he will be staying at or having left the State for less than seven days the fact of a change involving an extension beyond seven days and the address at which he is residing. Other obligations also arise in relation to informing potential employers of his conviction in certain situations which might involve unsupervised access to, or contact with, children or a mentally impaired person. This applies to the accused in this case even though there is no suggestion that he represents a threat to children and may even be more punitive here given his expressed desire to emigrate on his release from prison. This Court has considered whether or not it should impose a post-release supervision order and it does not propose to do so.

[5] Decision
[5.1] Taking all matters into consideration, this Court holds that the appropriate sentences before mitigation are as follows: eight years imprisonment for the rape of B.K.; eight years imprisonment for the oral rape of B.K.; five years imprisonment for the attempted rape of B.K.; five years imprisonment for the false imprisonment of B.K. and two years imprisonment for the sexual assault on C.M. In view of the mitigating factors which have already been outlined, the sentences that this Court has identified will be mitigated as follows; in respect of the two eight year sentences, this Court will mitigate those sentences to six years imprisonment. In respect of the sentences of five years imprisonment, which this Court has identified as being appropriate, the Court will mitigate those sentences to four years and in respect of the sexual assault on C.M., this Court imposes a sentence of eighteen months imprisonment. Taking into account the principle of totality, this Court will direct that these sentences are to run concurrently. The sentences will also be backdated to the time the accused went into custody following his conviction on the 22nd July 2011.