The Court of Appeal has been asked to consider the "tall order" of entirely quashing the sentence of a teenager who raped his seven-year-old cousin, as he is facing serving the final month of his sentence in an adult prison.
Lorcan Staines SC, for the teenager, said that the boy was sentenced to one years' detention in Oberstown last February, when he was still a juvenile. However, counsel said his client is now over 18 and will have to be transferred to an adult prison by October 17th.
Mr Staines said that this would amount to a punishment that was not available to the trial judge as his client was a child at the time of sentencing.
Mr Staines said the teenager will then have to complete the remaining 31 days of his detention, after remission, in Wheatfield Prison as an adult which would be "an injustice for him to have to serve that".
In February this year, the then 17-year-old, who was found guilty by a jury of raping his cousin between October 1st and December 31st, 2018, was sentenced at the Central Criminal Court. He had denied raping his younger cousin but pleaded guilty to four counts of sexual assault.
No closing speech was made by defence counsel on behalf of the accused and his legal team did not carry out a cross-examination of the complainant, meaning the victim did not have to attend court.
The teenager appealed the length of the sentence and Mr Staines on Thursday told the Court of Appeal that because the boy was sentenced to detention and not prison, the appellate court could only "quash altogether the original sentence or affirm it".
Mr Justice John Edwards said the trial judge "did not have extensive tools" available to her when sentencing.
Mr Justice Patrick McCarthy was told the teenager was doing well in Oberstown and remarked: "If he is doing well, it might be in his interest to remain where he is".
Mr Staines said if his client was an adult, "arguments to ask for a suspension, a reduction or backdating the sentence would have been open to me".
Mr Staines said the law mandated an immediate custodial sentence for a rape conviction for an adult but that the Oireachtas has stated that the jailing of a child was a "very last resort".
Mr Staines said the trial judge was not being criticised but he submitted there was "an error in principle" in that the judge believed she did not have the authority to grant a non-custodial sentence, even though she was dealing with a child.
"The starting point should be a non-custodial sentence," said Mr Staines, who said that if he had the power to ask the Court of Appeal for a suspension of one month and one day then he would have done so but did not.
Counsel said he had no choice therefore but to ask for the "tall order" of the court quashing the sentence.
John William Fennelly BL, for the State, said that it was only 31 days at issue and there had not been a guilty plea to the oral rape charge.
Mr Fennelly added that the appellant did not accept the jury verdict. "That being said, do we still press down to zero?" said Mr Fennelly regarding sentencing.
Mr Fennelly said the 31 days to be served in an adult prison was "not an error of principle and is not excessive" when taking the nature of the offences into account.
Mr Justice Edwards said the court would reserve its judgement in the matter.
'Unusual trial'
Sentencing judge Ms Justice Karen O'Connor said that, although it had been an “unusual trial”, a period of detention had to be imposed, given the serious nature of the offences, the young age of the victim and the impact of the offending on her.
She noted that if she was sentencing an adult on the rape charge, she would set a headline sentence of eight years.
The judge said for a juvenile defendant the appropriate headline sentence would be four years. She said that after taking mitigating factors into account, including the fact the defendant was 13 at the time of the offence, the appropriate sentence was one year's detention.
She also imposed a nine-month period of detention on each count of sexual assault with all sentences to run concurrently. She ordered the defendant be subject to post-release supervision for a period of two years.
The court heard that the offending took place in the victim's home. When interviewed by specialist gardaí, the victim said her cousin inserted his finger into her vagina on four occasions.
On a separate occasion, the boy orally raped the girl as part of a game and told her not to tell anyone or he would tell a lie.
The girl said she felt scared and that she would get in trouble if she told anyone. She said the accused would push a chair against the door of the room they were in.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help
