High Court judge criticises media commentary on rape sentencing

A High Court judge has criticised media commentary which he said described sentencing in rape cases as “opaque and not transparent”.

Mr Justice Tony Hunt made his remarks yesterday during the sentencing of a man who sexually molested his 13-year-old cousin when he was aged 15.

He jailed the 30-year-old man for 14 months after citing a Court of Appeal decision which reduced the headline sentence for rape from four years to two years and six months on the basis of that man's immature age at the time of the attack.

He said that media commentary that suggested sentencing was “opaque and not transparent” was incorrect and that sentencing was based firmly on Court of Appeal decisions.

He referred to the case DPP v J. H., which involved a 23-year-old accused who was 15 when he orally raped an 11-year-old girl. Last July, the Court of Appeal reduced the sentence imposed by Mr Justice Hunt, ultimately reducing it, after other mitigating factors, to 18 months with six suspended.

In its ruling the court stated that “what is relevant in the context of sentencing is the fact that the appellant, although now an adult, committed the crimes in question when he was fifteen years old.

“A sentencing court is required to access the offender’s level of maturity at the time of the commission of the offence and to accordingly access his culpability as of that time.”

The court continued that while it was impossible to know how a court would have dealt with the offender had he been prosecuted as a 15-year-old boy, there is a “likelihood...that any period of detention imposed would have been in the region of 12 months, followed by a period of supervision, such as is provided for in...the Children Act 2001.”

In this week's case a father of two had pleaded not guilty to five charges of sexual assault and one charge of attempted rape at a house in Dublin on a date in June or July of 2003. After a trial at the Central Criminal Court a jury convicted him of two charges of sexual assault.

Mr Justice Hunt imposed concurrent sentences of 14 months and seven months for both offences. As well as his age at the time, the judge also noted the man's history of employment, his education achievements and the fact that he has young children.

Colman Cody SC, defending, told the court that his client continues to claim that the sexual contact between the two had been consensual but pointed out that as the victim was a child at the time “the defence of consent is not available to my client”.

Mr Justice Hunt said there was an absence of genuine remorse shown for his offending or for claims made to gardaí that “impugned” the complainant.

Mr Justice Hunt said that the offending in the J.H. case was of a more serious nature than the case before him but that the defendant in J.H. had pleaded guilty.

When contacted by gardaí in 2013, J.H. described his actions as experimental and said he was very sorry for what had occurred.

The Court of Appeal stated that the sentencing judge in J.H. did not sufficiently discount the headline sentence on the basis of the appellant’s young age and lack of maturity at the time when the offences were committed.

“It is noteworthy that s. 52 of the Children Act 2001 provides that, firstly, a child aged under twelve years is incapable of committing an offence, and, secondly, that there is a rebuttable presumption that a child aged between twelve and fourteen years did not have the capacity to know that the act or omission concerned was wrong.

“These legislative provisions help to place the culpability of a fifteen year old in context.”

The complainant in this case, who lived abroad with her family at the time, had been in Ireland on a visit. She made a complaint to police in her own country in 2014, the gardaí were alerted and the man was brought in for questioning. He totally denied the allegations, claiming that the woman was “ prone to invention and making unreal statements”.

The detective investigating the case agreed with Conor Devally SC, prosecuting, that seven days before the trial he was provided with a statement from the accused outlining “an entirely new narrative of events”.

He said the accused then admitted that he had both fondled the teenager's breasts and performed oral sex on her. He claimed their relationship had developed over the course of her visit to Ireland which had led to intimacy between them.

He claimed that the girl “was the forward person” in this relationship rather than himself.

At a sentencing hearing in March the woman read from her victim statement in which she said she was “exhausted”.

“This process has taken everything from me. Today I am handing it back to you,” the woman said referring to the accused.

“I am full of anger, full of questions. I was a child and your cousin and that was not enough to make you stop. I wonder what my life as a 14-year-old, a 15-year-old, a 16-year-old and beyond would have been like had I not had to carry this,” the woman continued.

You had taken from me what you wanted and gave me shame and pain that I've had to carry with me.

"The impact didn't last one night or the three weeks of the trial, it lasted a life. It lasted my life,” she said.

She said she had not been sexually provocative at the time, as she said the man's version of events had suggested. She spoke of the abuse “stamping out the fire in my spirit”, that she changed afterwards and was later treated for post traumatic stress disorder and depression.

The woman said she couldn't dare tell her family as she was afraid of not being believed. She said she worried how it would affect her mother's relationship with her own family.

“I wanted to die but I chose to survive. I chose to tell the truth. You chose to assault me. You chose to make no amends for it. You chose to lie about it. You chose to plead not guilty. You put everyone through this. It is all at your door. This is your burden to carry, not mine, yours,” the woman continued.

She said the accused had made her out to be “a fantasist, an obsessive, a weirdo and a liar” and suggested to the jury that she would get pleasure seeing an innocent man on trial, a suggestion which she described as “ludicrous”.

The woman also mentioned how the man had said horrible things about her family. How her father had to hear the details of what had happened to her in evidence and that her sister and her mother had “tears running down their faces” during the trial.

She concluded her statement saying that she was “deeply grateful” to the jury for “wading through this fog”.

“It was worth it. You are a convicted man. My single hope is that no woman is hurt by you again,” the woman said.