Supreme Court: Original 10-year sentence for man who abused and raped his wife is reinstated



The Supreme Court has reinstated the original sentence of 10 years’ imprisonment imposed in a matrimonial rape case which involved a pattern of abuse, threats to kill, and a violent attack with a hammer.

Rejecting the man’s argument that the Supreme Court did not have jurisdiction to review the reduced sentence imposed by the Court of Appeal, Mr Justice Peter Charleton and Ms Justice Iseult O’Malley found that the sentencing judge in the Central Criminal Court had not erred in principle and affirmed the original order.

Background

In the Central Criminal Court in 2016, FE was found guilty of raping his wife and threatening to kill her. He had previously pleaded guilty to an attempt to cause serious harm in relation to a hammer attack on his wife and her mother in August 2014.

Ms Justice Isobel Kennedy identified a headline sentence of 14 years for the offence of rape contrary to section 48 of the Offences Against The Person Act 1861, which was reduced to 12 years considering mitigating factors. Suspending the final two years, the final sentence imposed was one of ten years in custody (with concurrent sentences imposed for the additional charges).

In the Court of Appeal, FE appealed his sentence for rape claiming it was so disproportionately high as to be an error in principle. The Court reduced the headline sentence to one of 12 years, with the result that the custodial element of FE’s sentence was reduced to eight-and-a-half years.

The DPP appealed against the decision of the Court of Appeal, arguing that a point of law of general public importance arose as to “viewing the offence in isolation”. In the Supreme Court in December 2019, Mr Justice Charleton set out the sentencing principles which must be observed when dealing with a pattern of violent and abusive behaviour.

Finding that the Court of Appeal was wrong to view the rape in isolation from the series of criminal events surrounding the rape and to reduce the sentence in those circumstances, Mr Justice Charleton said the Court would finalise the sentence to be imposed after hearing final submissions upon his clarification of the law.

Re-sentencing

In circumstances where the Court of Appeal reduced the sentence on an incorrect legal principle, and where the DPP did not seek to appeal against the original ten year sentence imposed, the within judgment of the Supreme Court dealt with the issue of whether the original 10-year sentence should be reinstated in place of the eight-and-a-half year sentence imposed by the Court of Appeal.

FE argued that the Supreme Court did not have jurisdiction to review the sentence imposed by the Court of Appeal, which are described as “final and conclusive” in the Constitution. FE contended that an appeal against his sentence was limited that granted to him in the Court of Appeal and that the Supreme Court was not entitled to step into the role of another appellate court.

In separate concurring judgments, Mr Justice Charleton and Ms Justice O’Malley agreed there had been no constitutional principle applicable to sentencing identified that could prevent the Supreme Court from making an appropriate order upon finding an error in the judgment of the Court of Appeal. Furthermore, the DPP had not appealed the sentence on the grounds of undue leniency, thus the Supreme Court was not proposing to impose a new sentence.

Mr Justice Charleton said that, in imposing the original ten year sentence, Ms Justice Kennedy was correct in not placing the rape offence in either the lowest or highest band, “or regarding the circumstances as being of gravity that any court regrets calling typical or ordinary because rape is such a violation”. For rape offences which merit a headline sentence of 10-15 years, Mr Justice Charleton said these kinds of cases comprise “a more than usual level of degradation of the victim or the use of violence or intimidation beyond that associated with the offence, or the abuse of trust”.

Mr Justice Charleton described how the circumstances of the rape in the case involved “the domination of the woman who was entitled instead to repose trust in her husband, the chilling threat of violence, the betrayal of the sanctity of the home and the incipient menace that kept the victim effectively captive overnight and worried about her responsibilities as a mother, this was a case correctly characterised by [Ms Justice Kennedy] as being in the upper bracket of the more serious category of rape cases”.

Stating that there was no error in the original sentencing, Mr Justice Charleton said FE’s appeal should be dismissed and the original sentence restored. He added that the ten year sentence remained correct in principle, and there was no basis for affording any reduction by reason of the appeal even though time has passed.

© Irish Legal News Ltd 2020



Other judgments by Mr Justice Peter Charleton