Supreme Court: Surrounding circumstances of abuse must be considered in rape cases
In a matrimonial rape case involving a pattern of abuse, threats to kill, and a violent attack with a hammer after the rape, the Supreme Court has 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 Peter Charleton said the Court would finalise the sentence to be imposed after hearing final submissions upon his clarification of the law.
The victim and FE were married in 2005 and had a child. On 2 May 2014, there was an altercation, leading to the victim leaving the family home and living with her parents. The victim then returned to the family home and the couple agreed that they would separate. On 25 May, during an argument, FE produced a knife and threatened the victim that he would “cut open” her face. He forced her upstairs and raped her, telling her that if she called the gardaí, they would not arrive on time to save her. He kept her in the house until the following day, at which point she went to the family courts and obtained protection orders. Thereafter, FE threatened to kill her.
Over the next few months, while the victim was living with her parents, FE confronted her at her workplace, their child’s crèche, and during phone calls about their child. On 9 June 2014, FE confronted the victim at a shopping centre and told her that the next time they met he would be armed with a hammer. On 6 August 2014, FE gained entry to the victim’s parents’ home and hit her on the head several times with a hammer, and also hit the victim’s mother on the head with the hammer.
Central Criminal Court
In the Central Criminal Court in June 2016, FE pleaded guilty to the hammer attack as an attempt to cause serious harm and assault. He contested the rape charges and threats to kill; however, the jury returned unanimous guilty verdicts.
Ms Justice Isobel Kennedy imposed the following concurrent sentences:
- A headline sentence of 14 years was identified for the rape, reduced by two years for mitigation and two years were suspended, giving a total of ten years in custody;
- Five years for the threat to kill at the time of the rape;
- Three years for the threat to kill the following day;
- Five years for the threat to kill at the shopping centre;
- Seven-and-a-half years for attempt to cause serious harm in the hammer attack.
Court of Appeal
FE appealed against the severity of the sentence, leading to a reduction in the sentence for the rape.
Giving the judgment of the Court, Mr Justice John Edwards said that, “viewed in isolation”, the sentence on the rape was “somewhat out of kilter with sentences imposed in comparable cases”. He said that Ms Justice Kennedy had erred in assessing the headline sentence of 14 years, and that while the gravity of the offence merited a substantial custodial sentence, it did not merit a headline sentence of that severity.
In those circumstances, the Court reduced the headline sentence to one of 12 years, reduced by two years for mitigation and the final 18 months suspended. Thus the actual time served became eight-and-a-half years.
Considering whether the sentences should have been consecutive or concurrent, the Court said this was dependent on whether the DPP had appealed on undue leniency. The Court said it had been open to Ms Justice Kennedy to impose consecutive sentences and that it was fortunate for FE that she did not do so. In circumstances where Ms Justice Kennedy’s decision to impose concurrent sentences was not criticised in the hearing before the Court of Appeal, the Court did not interfere.
The DPP submitted that a point of law of general public importance arose as to “viewing the offence in isolation”. The DPP submitted that “the rape should have been seen as part of a pattern of violent and abusive behaviour, and the sentence should have reflected the totality of that behaviour. This could have been done by imposing consecutive sentences, and indeed the Court of Appeal observed that if that course had been taken, and the trial judge had come to the figure of twelve years, it might well not have been disturbed. However, the Director’s preferred proposal is that the sentence for the most serious offence should be set at a level reflecting the surrounding circumstances. It is said that this would be particularly appropriate in cases of marital rape, where there may well be a pattern of violence and abuse”.
Mr Justice Charleton said that two fundamental principles of sentencing may seem in conflict – i.e. that a crime “cannot be viewed in isolation from its surrounding circumstances”, but “events entirely separate in time and character in respect of which the accused was either acquitted or never charged” cannot “be factored into account in order to aggravate a sentence”. He said that those “apparently conflicting principles only arise if an unnaturally diffracted analysis is made of the surrounding facts and circumstances of criminal conduct that are essentially part of the sentencing judge’s duty to analyse in coming to a just sentencing result”.
After setting out in detail the sentencing principles, Mr Justice Charleton said that on 25 May 2014, “the threats in the kitchen … led to the rape and informed the circumstances of this sexual violence. The threats with the knife and rape incident only ended when the victim left the house the next morning. Aggravating that rape offence is the threat of violence, the domestic domination overnight and the presence of a small child nearby and the breach of matrimonial trust”.
As such, Mr Justice Charleton said the Court of Appeal “was wrong in considering the rape alone and the prior offence of threat alone”. He said the subsequent threats were separate and the violent attack with the hammer could give rise to a consecutive sentence – as could the threats after the rape.
The Court said the sentence would be finalised and approved after hearing submissions on this clarification of the law and the relevant sentencing precedents.
© Irish Legal News Ltd 2020