Suspended sentence for man who raped wife's 13-year-old sister "unduly lenient"
The Court of Appeal has found that a wholly suspended seven year sentence imposed on a man for raping and indecently assaulting his wife's sister was “unduly lenient”.
The 53-year-old man, who cannot be identified for legal reasons, pleaded not guilty to two counts of rape and two counts of indecent assault committed against his wife's sister on dates between 1985 and 1986.
A jury at the Central Criminal Court found him guilty on all counts and he was given a wholly suspended seven years sentence by Mr Justice Garrett Sheehan on June 7 2013.
In suspending the entire seven year sentence, Mr Justice Sheehan had said the man's family needed support and care. Two of his young sons have autism and require 24-hour care.
The Court of Appeal dismissed his appeal against conviction today and agreed with a subsequent appeal by the Director of Public Prosecutions that his sentence was “unduly lenient”.
President of the Court of Appeal Mr Justice Seán Ryan said the man had been married to the complainants elder sister and they had two children. He was 25 at the time and the complainant, who used to babysit for him, was 13 going on 14.
Mr Justice Ryan said the offences were perpetrated in the box room bedroom of the home on occasions when the complainant was staying over in the house and when the man had come home from socialising with his wife.
The trial judge had given a detailed warning about the impact of delay and there was no complaint about that.
However, counsel for the man, Seán Gillance SC, submitted that there was no evidence in relation to why the woman had not made a complaint between the “departure from influence” from her mother and the period before 2009 when the complaint was made, Mr Justice Ryan said.
Prior to that period, there was evidence that the then schoolgirl had been very reluctant to approach her mother because of that lady's personality, Mr Justice Ryan said.
The woman had given evidence that in 1986 she had explained to her sister that she could no longer babysit for the man for reasons she didn't want to go into. That evidence was confirmed at trial by the sister.
Mr Justice Ryan said the defence, for reasons they thought appropriate and which the court understood and appreciated, made a decision not to enter into that area during cross examination.
In circumstances where the defence chose not to explore a particular area, Mr Justice Ryan said a complaint could scarcely be made that the judge did not give instructions to the jury to say there was an absence of an explanation for that period.
Mr Justice Ryan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said the court was satisfied that the conviction was safe and the trial was satisfactory. As a result the court dismissed the appeal against conviction.
Later, Mr Justice Ryan said the court was satisfied that the Director of Public Prosecution's application in establishing that the man's sentence was unduly lenient succeeded.
Mary Rose Gearty SC, for the DPP, submitted that the sentence did not reflect the gravity of the offending – the number of offences, the age of the victim and the impact on her.
Ms Gearty further submitted that the trial judge inappropriately referred to rehabilitation for the man in sentencing despite there being “no acceptance of guilt, no remorse (and) nothing of that nature”.
Finally, Ms Gearty said the situation of the children, who had medical conditions, did not justify a wholly suspended sentence because he was not their primary carer.
The court reserved judgment on sentencing until March 19.