The Supreme Court, in a significant judgment concerning sentencing in rape cases, particularly for marital rape involving a pattern of violent and abusive behaviour, has said all those events, not just one in isolation, must be considered to arrive at a “just result”.
Rape ordinarily merits a substantial “headline” sentence of about seven years before mitigation is considered and a custodial sentence “is all but inescapable”, Mr Justice Peter Charleton said.
A category of cases merit a headline sentence of 10-15 years, before considering mitigation and suspension issues.
Violence in the home, breach of trust, domination and a background of abuse are “aggravating circumstances”.
Some cases would require up to life imprisonment and particular emphasis would be placed on the harm rape does to the victim.
The DPP had appealed to the Supreme Court after the Court of Appeal (COA) reduced to a total eight-and-a-half years prison time the sentences imposed on a man for rape of his wife, threats to kill her and a hammer attack on her.
The DPP argued the COA should not have viewed the rape in isolation but rather as a “pattern of violent and abusive behaviour”.
On Friday, the Supreme Court gave a preliminary judgment setting out principles for sentencing in rape cases and sentencing bands for such cases. It will decide on a later date what sentence should be imposed having heard submissions on its findings.
The case concerned an Irish woman and African man who married some years ago and had a child.
The relationship deteriorated after some years. On May 2nd, 2014, there was a major row involving an altercation, the wife moved to her parents home but later returned on foot of an agreement with her husband they would separate.
On May 25th, 2014, during a row in the kitchen, the husband produced a knife, threatened his wife he would “cut open” her face, ordered her upstairs and raped her. He told her during the night, if she rang gardaí, they would not arrive in time to save her.
She pretended reconciliation, left the next morning and got protection orders. He rang and threatened to kill her the next day. Over the ensuing days, he confronted her at work and the creche and, on June 9th, 2014, accosted her at a shopping centre and told her the next time she saw him, he would be armed with a hammer.
She refused to let him in to her parents home on August 6th, 2014 when he turned up with a plastic bag. The following day, her mother permitted him enter after he said he had a present for the child in a plastic bag.
Inside, he produced a hammer and struck the wife several times on the head and also hit her mother on the head with it. He fled after neighbours intervened but was arrested by gardaí.
The wife suffered three deep lacerations and she and her mother were taken to hospital.
In the Central Criminal Court (CCC), the man pleaded guilty to the hammer attack but denied the rape charges and three threats to kill. He was convicted and concurrent sentences were imposed for each count. The CCC imposed a 14 year headline sentence for the rape, reduced by two years suspension and two years for mitigation, resulting in total prison time of 10 years.
The COA upheld the conviction but reduced the headline rape sentence to 12 years, less two for mitigation and 18 months for suspension, making the overall sentence eight years and six months.
Giving the Supreme Court judgment, Mr Justice Charleton said there were separate events in this series of crimes. The threats in the kitchen led to the rape incident which only ended when the woman left the house the next morning.
The rape offence was aggravated by the threat of violence, the domestic domination overnight, presence of a small child nearby and breach of matrimonial trust.
The Court of Appeal was wrong in considering the rape alone and the prior offence of threat alone, he held.
The hammer attack can give rise to a consecutive sentence as can the threats after the rape but the “totality principle” should be observed as to the justice and rehabilitative effect of the overall sentence.
Earlier, he said a crime cannot be viewed in isolation from its surrounding circumstances and is an event which may take place over an instant or a stretch of time.
What led to the crime, in terms of what “tempted” the accused, or the pressures they were under, is part of that background, as are factors which aggravate the seriousness of the crime or mitigate the individual culpability of the criminal.
Events entirely separate in time and character in respect of which an accused was acquitted or never charged cannot be factored into account in order to aggravate a sentence.
It is “wrong in principle” to pass consecutive custodial sentences for two or more offences if that would amount to punishing the offender twice for what was really one crime, he said.
