The Supreme Court, in significant judgments for sentencing in marital rape and sexual violence cases, has reinstated a 10-year jail sentence imposed on a man for raping his wife after producing a knife and threatening to “cut open” her face.
The five judge court upheld arguments by the DPP that the Court of Appeal (COA), in reducing the rape sentence to 8½ years, took an incorrect legal approach by examining the rape “in isolation” from surrounding circumstances of violent and abusive behaviour.
The man had forced his wife upstairs at knifepoint before raping her while their child slept in another room, made threats to kill her after she left the following day with the child and, some weeks later, attacked her and her mother with a hammer in her parents home. The woman suffered three deep lacerations to the head and she and her mother were brought to hospital.
Speaking afterwards, the woman said the judgments would have very important implications for future cases of domestic and sexual violence.
“The Supreme Court has said very clearly these offences are very serious and has set out how they should be addressed,” she said.
While she and her family have been “down a long road”, the outcome was a “huge relief” and she was “very glad” the DPP had pursued this matter “because it was the right thing to do and that is proven by the judgment”.
The Supreme Court appeal by the DPP concerned the rape sentence only and not the concurrent sentences imposed for his threats to kill and the hammer attack.
Mr Justice Peter Charleton said the circumstances of this rape included 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 effectively kept her captive overnight and worried about her responsibilities as a mother.
This case was correctly characterised by the Central Criminal Court (CCC) trial judge, Ms Justice Isobel Kennedy, as being in the “upper bracket of the more serious category of rape cases” and the effective 10-year jail term imposed by the trial judge contained no error, he held.
Principles
The Supreme Court had last December given a judgment in the case setting out principles concerning sentencing in sexual violence cases and sentencing bands for such cases, involving headline sentences from seven years and life imprisonment before mitigation is factored in. It deferred a final decision until it heard further submissions arising from that judgment.
In two judgments delivered on Wednesday during the court’s first ever sitting in Kilkenny, all five judges rejected the man’s arguments the Supreme Court could not interfere with the COA reduction of sentence before going on to conclude the COA erred in law.
Mr Justice Charleton said a trial judge plays a “central role” in sentencing and it is appropriate for an appellate court to have awareness of that.
In this case, where the rape and threats to kill in the context of domestic domination were contested but where the man was found guilty by a jury, and where he had admitted other very serious offences, finding the appropriate sentencing band was the first task of the trial judge who was “clearly correct” in placing this offence in the band of “more serious than the ordinary”. The court regretted saying “typical or ordinary” because rape “is such a violation”, he said.
A category of rape cases merit a “headline” sentence of 10-15 years imprisonment and such cases are categorised by a more than usual level of degradation of the victim, or use of violence or intimidation beyond that associated with the offence, or the abuse of trust, he said.
The trial judge took into account the aggravating factors, including threat of violence with a weapon, breach of trust and violation of the woman in her own home while her child was asleep.
The trial judge correctly arrived at a “headline” sentence of 14 years for the rape, reduced to ten by allowing two years for mitigation and two years suspension on release. “That approach cannot be faulted.”
The COA erred in reducing 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, he held.
Concurring judgment
Ms Justice Iseult O’Malley, in a concurring judgment focussing on the extent of the Supreme Court’s jurisdiction, said the Constitution no longer permits the exclusion of any category of case from the appellate jurisdiction of the Supreme Court. The DPP’s appeal, she noted, related only to sentence and had served simply to deal with the error of the COA and to bring about restoration of the original sentence.
The trial judge approached the matter of sentence correctly and there were no “exceptional circumstances” here that might justify the Supreme Court in substituting its own sentence.
The woman at the centre of the case was married to the man, from an African country, for some years, and they had a child before their relationship deteriorated. On May 2nd, 2014, after a major row involving an altercation, they agreed to separate.
On May 25th, 2014, during a row in the kitchen, the man produced a knife, threatened his wife he would cut open her face, ordered her upstairs and raped her. He told her 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 and, over ensuing days, confronted her at work, the creche and at a shopping centre.
On August 6th, 2014, her mother let him into her parents’ home where he produced a hammer from a bag, struck the woman several times on the head and hit her mother on the head. He fled after neighbours intervened and was later arrested.
Dublin Rape Crisis Centre CEO Noeline Blackwell welcomed the judgments clarification that the rape should not have been separated from other incidents of domestic violence and that the court itself has “not only the right, but also the duty, to act in the interests of the public good”.
