Rape sentence - Judge must explain his decision

Any society that does not insist that its courts reflect its mores, humanity, its struggle to be human and humane, and its determination to hold those found guilty of the most savage attacks on others to account sows the seeds of its own downfall.

Monday’s decision by Mr Justice Paul Carney, to sentence a man who admitted raping his daughter over 10 years to 12 years in jail but with the last nine suspended and set him free on bail pending an appeal, seems to defy the very idea of justice.

It certainly challenges the idea of offering victims of crime the vindication of knowing that their ordeal means something and the small, the impossibly small comfort of knowing that society, in some symbolic way, shares the deep, deep hurt and outrage caused by the crimes inflicted on them.

It gravely undermines too the credibility of our courts and unfortunately may dissuade even further those victims of sexual or physical abuse already reluctant to report those crimes abuse to the gardaí.

Patrick O’Brien, of Old Court Avenue, Bray, Co Wicklow, pleaded guilty to 16 charges of the rape and indecent assault of his daughter Fiona Doyle between 1973 to 1982. Ms Doyle told the court that the abuse began when her father raped her the night before her First Communion. The abuse became “as frequent as having dinner”, and her father, now 72, raped her every night when her mother went out to play bingo.

In the face of such vile inhumanity it would be easy — and all too natural — to demand the most severe sanctions, but we can no longer afford that kind of self-indulgent knee-jerk. We have had too many cases where courts seem to imagine themselves an independent empire, removed from society and unanswerable to it. An independent and secure judiciary is one of the hallmarks of a functioning democracy but it must remain part of society, not a free-floating adjunct following the beat of its own drum.

This week’s unease is exacerbated by the fact that, in 2007, another sentence handed down by Mr Justice Carney led to a survey of rape sentences in Ireland and Britain. That survey was provoked by his decision to suspend a jail term imposed on a man who broke into a house in Co Clare and raped a mother in her bed.

There is too the unfortunate whiff of pique on Mr Justice Kearney’s part. Defending his decision he noted that in another judgement, the Kennedy case, the Court of Criminal Appeal suspended a moderate sentence because of the poor health of the convicted person. He said that in that judgment he was “horrified” to find that the DPP, “behind my back, saying it’s a matter of indifference” whether that accused served a prison sentence or not. If this rebuttal influenced his decision on O’Brien it is entirely inappropriate.

Mr Justice Carney is not the only judge to impose sentences that seem at odds with the kind of sanction that would reflect the feelings of society. The judiciary are afforded an honoured and independent place in our society, but that does not stretch to the kind of deference that precludes any judge having to explain their actions in an appropriate forum.

This case demands that kind of intervention.

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