THE SENTENCING of a Cork man who orally raped a foreign national has been adjourned by Mr Justice Paul Carney who said: “The female half of the population has a constitutional right not to be raped.”
David Hegarty (32) raped the woman just two years after his release from a 10-year sentence imposed on March 4th, 2000, for raping two female students in Cork city centre on October 5th and October 27th, 1998.
Hegarty, a father of one, with a former address at Nutley Road, Mahon, pleaded guilty to orally raping the foreign national in the early hours of May 22nd, 2008, close to a Cork city centre bus station.
Det Garda John McDonagh said at the Central Criminal Court that Hegarty was caught near the scene by Garda Aidan O’Mahony after a member of the public telephoned gardaí.
Insp Declan O’Sullivan noted that gardaí and the victim were very thankful to the man who made the phone call and who also remained on the line while keeping Hegarty in view until a patrol car arrived.
Mr Justice Carney adjourned Hegarty’s sentence after hearing submissions on his view, stated earlier this week, that he felt he should impose a life sentence.
He said Hegarty’s crime on a defenceless woman in the early hours of the morning was “particularly predatory and opportunistic” and he had received sentences previously for similar crimes.
“This raises inferences in my mind that he will do so again at the first possible opportunity, and that the appropriate sentence is one of life imprisonment.”
Mr Justice Carney said he had faced this situation previously in the Gerard Kelly case, where the facts were broadly similar and in which he imposed a life sentence on January 22nd, 2007, “so that he would not be able to do the same again”.
Kelly (47), Moreen Avenue, Sandyford, Co Dublin, who pleaded guilty to aggravated sexual assault of a woman on the night of September 17th-18th, 2004, had been jailed for 10 years on November 8th, 1999, and for eight years in England in 1987 for rape and aggravated burglary.
Mr Justice Carney said that his life sentence on Kelly was set aside “in a fairly lengthy judgment” on July 31st last (2008) by the Court of Criminal Appeal, presided over by Mr Justice Joseph Finnegan sitting with Ms Justice Maureen Clark and Mr Justice Daniel Herbert, which did not accept that the facts in the case were such as to merit life imprisonment.
The appeal court based its judgment on Kelly’s constitutional rights and substituted a sentence of 16 years with the final three suspended, and also directed 10 years post-release supervision.
He noted that the appeal court ruled that while the circumstances of Kelly’s crime were “very shocking”, it believed the imposition of a life sentence for it amounted to an error in principle” because the sexual assault by Kelly “was not of such an exceptional nature that it merited the imposition of a life sentence”.
Mr Justice Carney said a great deal of legislation was formed in gentler times and he might be right or wrong in thinking Hegarty in this case might rape again.
“Has the female half of the population to accept that one or more of them might be targets because of a rapist’s constitutional rights?” Mr Justice Carney asked.
Paul Coffey SC (with Ms Karen O’Connor), for the State, said the Director of Public Prosecutions, couldn’t gainsay the legislation as it stood.
He said the appeal court appeared in the Kelly case to have dealt with the issue of three rapes being committed in a short number of years and whether or not the court when sentencing could take into consideration a propensity to repeat the offence.
Mr Coffey said it was accepted that sentence must be proportional to the particular offence.
The rights of the court to impose a life sentence had also been dealt with by the Supreme Court in another case in which it was ruled that a plea of guilty should not preclude maximum sentence in exceptional circumstances. He said the court “must recognise these circumstances” and it would seem that the court could only have regard to the facts of the case, and not to any possible future aggravating factors.
“When the court proceeds to life sentence, the offence must, in the words of the Supreme Court, represent the worst imaginable instance of the offence itself and the DPP must accept that.”
Patrick MacEntee SC, defending, submitted that while he did not want “to trivialise” the case, there was no evidence on which the court could reach the conclusion that the facts of this case represented the worst imaginable instance of the offence.
“The evidence is simply not there and the court would have to reach the conclusion to a very high degree of probability that my client might offend again, except from the evidence that he offended previously.”
Mr MacEntee said the court was bound to impose a proportionate sentence that imposed no more penalty on his client than the facts allowed.
He said that from his arrest, Hegarty said he was sorry for what he did and had also said on oath that he wanted help for his offending and for his drink problem.
He said that a life sentence, as contemplated by Mr Justice Carney, would “perpetrate a serious injustice” on Hegarty in preventing him get the therapeutic help he desired and was willing to undergo.
Mr MacEntee said the court now also “has sentencing aids” available which were not available when Hegarty committed the earlier crimes. His client asked for “a determinate sentence” which would allow him get treatment and be released in due course under supervision.
“Your Lordship’s hands are tied,” Mr MacEntee said.