About this case:

• Citation:
  [2023] IECA 9
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The man was previously sentenced to 10 years’ imprisonment by the Central Criminal Court, with the final three-and-a-half years suspended due to the accused not speaking English and not having any family members who could visit him.

Delivering judgment in the case, Mr Justice George Birmingham held that the sentence was unduly lenient, noting that the accused had a previous conviction for attempted rape and that the probation report about his attitude to the victim was “very disturbing”.

The court upheld the 10-year sentence but reduced the suspended period to one-and-a-half years.

Background

The accused was a 39-year-old man from Romania who did not speak English. He arrived in Ireland in 2017 and worked in a Romanian-owned car wash. In February 2018, the victim was walking home in Ballinasloe, Co Galway when she encountered the accused on a secluded street. The accused raped her against a jeep.

Further, the accused then forcibly brought the victim to his residence and raped her on two further occasions. The victim was kept imprisoned between 2.30am and 8.30am.

The victim was 19 years old at the time of the crimes and suffered from a mild intellectual disability. When arrested by gardaí, the accused initially denied having contact with the victim. However, when faced with DNA evidence, the accused changed his story and claimed that they had consensual sex.

The man had several previous violent convictions in Romania, including a conviction for attempted rape and robbery for which he served eight years’ imprisonment. Following a nine-day trial, the accused was convicted of three counts of rape and one count of false imprisonment.

A probation report was produced for the sentencing hearing which outlined that the accused showed no remorse or empathy for the victim and had no understanding of the harm caused by his actions. The man’s view of the victim was derogatory.

In sentencing the accused, the trial judge was critical of the fact that the accused was never told by gardaí of his right to have a solicitor present at interview. The court commented that the rapes were no more violent than the act of rape itself and there was no evidence that the accused was aware that the victim had a minor intellectual disability.

The court also outlined that the previous criminal history was an aggravating factor although did not specifically mention the previous conviction for attempted rape. The court also accepted that the man’s lack of English meant that it would be harder for the accused to serve his sentence than for an Irish prisoner. It was noted that the man’s family were located in Romania and did not have the means to visit him.

Accordingly, the trial judge imposed a sentence of 10 years’ imprisonment on the accused, with the final three-and-a-half years suspended on the basis that each day served by the accused was more difficult that a normal person.

The DPP appealed the decision on the grounds of undue leniency. It was argued, inter alia, that the effective discount of 35 per cent was excessive in light of the lack of mitigation in the case and that the reliance on the trial judge of a breach of the accused’s detention rights were more properly matters for the substantive trial rather than sentencing. Finally, it was said that the 10-year sentence was already at the bottom of the proper sentencing band for serious rape offences and the final tariff imposed failed to account for the seriousness of the offending.

Court of Appeal

Mr Justice Birmingham held that the 10-year sentence “represented the absolute minimum that could have been considered”. The court commented that a starting sentence of 12 years might well have been identified by the trial judge.

The court also held that the accused “really had very little going for him in terms of mitigation”. The court stated that it was surprising that the trial judge placed little emphasis on the previous conviction for attempted rape. The lack of remorse or a guilty plea were aggravating factors, while the attitude of the accused towards the victim was “very disturbing”.

It was held that the failure by the gardaí to inform the accused that he was entitled to have a solicitor present at interviews was not a relevant issue for the question of sentencing.

However, the court accepted that being a non-English speaker made the sentence more difficult for the accused, in addition to not having visits from his family. As such, this provided a basis for a reduction in the sentence of one-and-a-half years.

Conclusion

The court held that the ultimate sentence of six-and-a-half years was unduly lenient. As such, the court quashed the sentence and imposed a sentence of 10 years’ imprisonment with the final 18 months suspended.

The People at the Suit of the Director of Public Prosecutions v. CP [2023] IECA 9