About this case:

• Citation:
  [2019] IECA 252
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

Finding that the sentencing judge had not adequately assessed the gravity of the offending conduct, Ms Justice Isobel Kennedy said the headline sentence was a substantial departure from the appropriate sentence which amounted to an error in principle.

Background

In August 2015, TS was accused of raping his wife in the home they shared in Rathmines. In April 2017, TS was charged with two counts of sexual assault, a count of assault, a count of vaginal rape, and a count of s.4 rape. TS pleaded not guilty to the charges.

in July 2018, TS was tried in the Central Criminal Court. The trial judge directed a verdict of not guilty in respect of the assault count and the jury disagreed on the vaginal rape count. TS was convicted of one count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990 and two counts of sexual assault contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990.

Sentencing

At the sentencing hearing, TS handed a letter to the Court in which he apologised to his wife and family, and accepted that the jury had come to the right decision in finding him guilty. A letter was also submitted from the victim in which she asked the court her accept her husband’s apology and pleaded for clemency. The complainant detailed the struggle she faced without her husband since he had been in custody, including financial strain and difficulty taking care of their two children on her own.

The sentencing judge identified several aggravating factors, remarking that “rape always constitutes a savage attack on the bodily and psychological integrity of the victim”. Consequently, the judge said the appropriate headline sentence for the count of anal rape was one of six years and four years for the sexual assaults.

Mitigating factors which afforded a reduction of one year included the lack of previous convictions, his long history of hard work, his devotion to his children, and his acknowledgement of guilt and remorse after the verdict.

Considering the plea for clemency, the sentencing judge noted that the victim had “a misplaced sense of guilt about making her complaint to the gardaí”, but that the Court had to be mindful not to “unnecessarily or gratuitously cause detriment to the victim”. As such, the sentencing judge suspended the final two years of TS’s sentence.

In January 2019, TS was sentenced to five years’ imprisonment with the final two years suspended in respect of the rape count, and three years’ imprisonment in respect of the counts of sexual assault, all to run concurrently.

Court of Appeal

In the Court of Appeal, the Director of Public Prosecutions sought a review pursuant to s.2 of the Criminal Justice Act 1993 of the sentence imposed on the grounds that it was unduly lenient.

Ms Justice Kennedy considered the plea for clemency and agreed with the sentencing judge that the victim “had a misplaced and wholly inappropriate sense of guilt regarding the making of her complaint to the gardaí”.

She added that, although the victim’s attitude is a factor which may be taken into consideration, “the offence is an attack on society and not simply a private wrong, and therefore the attitude of the victim is not determinative”. Regarding the judge’s approach to the plea for clemency, Ms Justice Kennedy said the court was satisfied that this was beyond reproach.

Considering the pre-mitigation sentence for the rape offence, Ms Justice Kennedy said the “intrinsic gravity” of TS’s actions “was aggravated by the very significant breach of trust, the restriction of the complainant … so that she could neither breath or scream, the forcible removal of her clothing and the pain caused to her. Moreover, she was humiliated and degraded in her own home”. Ms Justice Kennedy said there was no “scope to differentiate between marital rape and any other category of rape”, but that in marital rape “the gravity of the offence will always be aggravated by the breach of trust and betrayal of the victim which arise by virtue of the circumstances in which the offence is committed”.

Satisfied that the pre-mitigation sentence was too low, Ms Justice Kennedy said the sentencing judge did not adequately address the gravity of the offending conduct, and the sentence was a substantial departure from the appropriate sentence. This amounted to an error in principle.

If the headline sentence properly reflected the gravity of the offending conduct, Ms Justice Kennedy said the discount afforded for mitigation and the plea for clemency would not have significantly impacted the sentence so as to amount to an error in principle.

Quashing the sentence, Ms Justice Kennedy said the appropriate pre-mitigation sentence for the s.4 rape was one of 10 years’ imprisonment. This was reduced to one of seven-and-a-half years considering the mitigating factors. In this regard, Ms Kennedy emphasised that the expressions of guilt and remorse after conviction were factors with very little weight.

Analysing the reasons underlying the plea for mercy, Ms Justice Kennedy said the victim “was most affected by the impact of TS’s incarceration upon her children, her financial circumstances, her hope of reconciliation and the impact on the wider family”. However, the letter could not be viewed in isolation, and Ms Justice Kennedy considered the fact that in her victim statement just one month earlier, the victim had expressed that she was no longer scared. Ms Justice Kennedy said this was “clearly due to the fact that her husband was incarcerated”.

Nevertheless, Ms Justice Kennedy said she was conscious of the underlying reasons of the plea and suspended the final two years of the sentence.

The Court did not intervene in the sentence for sexual assault.