A teenager who raped a girl when he was 14 after drinking alcohol for the first time has avoided jail, despite a finding by the Court of Appeal (CoA) that his original fully suspended sentence was too lenient.
The CoA ruled that to send the teenager to an adult prison now would serve “no useful purpose whatsoever”.
The now 18-year-old, who cannot be named for legal reasons, was convicted by a majority jury at the Central Criminal Court following a trial last May.
He had pleaded not guilty to a charge of rape on September 26th, 2020, at a forest location in the west of the country.
The teenager was 17 when he was convicted last May by a 10-2 majority on a single count of rape, contrary to Section 2 of the Criminal Law (Rape) Act 1981.
At the trial, Cathleen Noctor SC, prosecuting, told the court that the victim, who was 15-years-old at the time, had no recollection of the rape due to her level of intoxication on the night.
It was accepted by the State that the boy raped the girl on the basis that she was too incapacitated to be able to consent to having sex with him.
“The complainant was incapable of consenting because of the consumption of alcohol,” counsel told the trial.
'Far too lenient'
On July 28th, the boy was sentenced to 106 days detention, which was fully suspended. The State appealed the fully suspended sentence, submitting that it was “far too lenient” for the offence of rape.
Ms Noctor told the appeal hearing that Ms Justice Caroline Biggs had said, were she to sentence an adult for the same offence, she would have nominated a headline sentence of seven years.
Ms Noctor said the trial judge, in the absence of a guilty plea, then discounted 66 per cent of the seven years, reducing the sentence to two years and four months’ detention due to the age of the accused.
The judge, Ms Noctor said, then further discounted the sentence to 21 months in mitigation, before reducing that by 18 months due to the delay in the case, leaving the boy with a fully suspended sentence of 106 days, set to expire the day before his 18th birthday.
Ms Noctor said the trial judge “didn’t want to risk him serving in an adult prison”.
Ms Noctor said a term in custody was appropriate but that the “sentencing judge wasn’t prepared to countenance at least one day outside the detention aspect”.
“The suspended sentence expired the day before his 18th birthday, which we say is an error in principle,” counsel added.
Ms Noctor said there had been an error in sentencing “by virtue of there never being any real risk by serving any punitive element of the sentence”.
Consent
Ms Noctor said there was evidence that on the night of the offence, the complainant was heard saying: “He put it in, he put it in”.
In later interviews, she could not remember the night due to the alcohol she consumed and could not have, therefore, consented to sex in any case, counsel said.
Counsel said the girl’s DNA and a condom were found in the defendant's underwear.
Ms Noctor said the sentence was unduly lenient and an “excessive” discount had been applied for an offence that had a “serious impact on the victim”.
Dominic McGinn SC, for the teenager, said his client had a limited sexual education at the time of the offence, and believed he had the consent of the complainant due to her “not saying no”. Counsel conceded that the boy had been “reckless” in the matter.
Mr McGinn said the trial judge took “extraordinary care” in deciding what the sentence should be and had considered “every other option available”.
Mr McGinn said that while the Director of Public Prosecutions was now contending that the wholly suspended sentence was unduly lenient, this matter should have been raised by the prosecution at the trial.
Counsel said the trial judge had no guidelines in sentencing the juvenile that had to be “rigidly” adhered to and was able to use her discretion, which, therefore, did not amount to any error in principle.
Mr McGinn said the discount applied due to the delay in the case was “entirely appropriate in the circumstances because it is a vastly different person standing here than the person at the time”.
The lawyer said that there had been no other offending before or after the incident on September 26th, 2020.
Mr McGinn said his client had made admissions to other people before gardaí arrived at the scene and repeated that he did have sexual intercourse with the girl, even though she could not say what had happened.
Counsel said the judge had to take into account his client’s age and maturity in sentencing and submitted that there had been no coercion or violence involved in the offence.
'Substantial departure'
At the Court of Appeal on Thursday, Ms Justice Tara Burns said the term imposed had indeed amounted to a “substantial departure from an appropriate sentence and was unduly lenient”.
Ms Justice Burns said the three-judge court would quash the 106-day fully suspended jail term and re-sentence the teenager.
“Considering the aggravating factors of the age of the victim and her intoxicated state, together with the victim impact report, the court is of the view that had the offence been committed by an adult the appropriate sentence would have been seven years,” Ms Justice Burns said.
The judge added, having regard to the boy’s age, maturity and lack of sexual understanding, a discount of three-and-a-half years was appropriate.
Ms Justice Burns said that mitigating factors in the case, such as the boy’s admissions, his good record, his acceptance of the verdict and his supportive family, amounted to a further discount of 18 months.
However, Ms Justice Burns said that sending the teenager, who was engaging with probation services, “to an adult prison at this stage, even though he has reached 18, would serve no useful purpose whatsoever”.
The judge then suspended the two-year jail term in its entirety on the condition that the teenager comply with probation services and be of good behaviour for two years.
'Grappled with power'
When originally passing sentence on the teenager at the Central Criminal Court, Ms Justice Caroline Biggs said she had “grappled with the power” of what sentence she could give in this case, and that only “the most exceptional cases” of rape could warrant a suspended sentence.
Ms Justice Biggs said the defendant was “emotionally and sexually immature” and had not received substantial sex education as he was only in his third year of secondary school at the time.
She said the defendant was aware of “the basic mechanics” regarding sexual activity, but not the social and emotional aspects of it, which he would need to further develop.
Ms Justice Biggs said that “mitigation is increased by age” due to the defendant’s status as a juvenile, detailed in the Children Act 2001.
The court heard the probation services had recommended the teenager be given a suspended sentence, which the judge deemed as “appropriate”.
Ms Justice Biggs imposed a fully suspended sentence of 106 days of detention to the boy with conditions that he attends all appointments with the probation services, engage in HSE drug and alcohol addiction counselling and be of good behaviour.
The judge noted that Section 2(5) of the Criminal Justice Act 1993, as inserted by a section in this year's Criminal Justice (Miscellaneous Provisions) Act 2023, allows the Court of Appeal to re-sentence the teenager as if he had been an adult at the time of his original sentence.
Prior to the Act coming into effect, the court had been told in a separate case that should it find an error in the sentencing of a juvenile, it would not be able to impose a new sentence once the person turns 18 because children are sentenced to detention and cannot be sentenced to imprisonment, while an adult cannot be sentenced to detention.
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.
