Exclusive: Justice Carney's rationale for suspending rape sentence
In failing to impose a custodial sentence on Adam Keane for the rape of Mary Shannon of Ennis, Mr Justice Paul Carney felt constrained by a previous decision of the Court of Criminal Appeal in another case (the NY case) which he overturned a sentence for rape of three years in favour of a suspended sentence.
Below, Village presents an introduction to the Keane trial, transcripts from the trial and a summary of a related trial (the GD case) which, along with the NY case, considerably influenced the Keane case.
On 30 May 2005 Adam Keane, having consumed a large quantity of alcohol in a local pub/club in Ennis and having also taken drugs, entered the home of Mary Shannon at Oakwood Drive, Ennis around midnight.
Mary Shannon, then aged 32, a single mother of three children, then aged 10, 8 and 4, had been asleep from around 10.00pm. She woke up to find a man beside her in bed and assumed it was her boyfriend. They started having sex. She quickly realised the man with whom she was having sex was not her boyfriend and became very distressed. She ran from the house and alerted neighbours and then the Gardaí.
Adam Keane claimed to have had no recollection of this happening and, repeatedly, under Garda interrogation, said it was quite out of character for him and contrary to everything he believed in. He was prepared to accept the DNA evidence that he did have sex with Mary Shannon and counsel on his behalf asserted she was in no way to blame for what had occurred.
Paul Carney said in the Adam Keane case: I would not be comfortable if I sentenced this man in the light of what happened in the NY case. He is certified as a sex offender and remains certificated as a sex offender but entirely by reason of the approach taken by the Court of Criminal Appeal (in the NY case) I sentence him to three years imprisonment, suspended on his being of good behaviour in his own bond of €1,000 for a period of five years.
Earlier the judge said: “This accused has no previous convictions, I would think that from his experience in this case he is unlikely to offend again. I think it is necessary that it come down clearly from this court that people cannot wander around bedrooms and behave in this predatory fashion and I would think a sentence of four years which I imposed in the NY case is a moderate and lenient one (in fact it was three years)…. [The sentence] was set aside in its entirety by the Court of Criminal Appeal”.
The imposition of a suspended sentence in this case by Mr Justice Paul Carney caused outrage among women's groups, criticism from politicians and caused further distress to Mary Shannon.
Transcripts
The Director of Public Prosecutions v. Adam Keane, 12 March 2007
Counsel for the Prosecution: Ms P Walley, SC; Ms R Geraghty, BL
Counsel for the Defence: Mr. B Nix, SC; Mr M Nicholas, BL
MR NIX: I appear, my lord, with Mr Mark Nicholas instructed by...
MS WALLEY: I appear with the prosecution, my lord, with Ms Geraghty.
MR NIX: Before I open the case I wonder could I introduce Ms Yvonne Quinn, she is a second year barrister. She devils with Mr Mark Nicholas. She is from Tulla in County Clare.
JUDGE: Miss Quinn, I wish you every success in your career. You are in very good hands and I complement you on respecting the traditions of your profession.
MS QUINN: Thank you, Judge.
MS WALLEY: This is an incident, my lord, where the accused was found guilty by the jury by majority verdict on 9th February of this year, of a single count of rape. At that stage there was no garda objection to bail so you remanded the accused on bail and directed a victim impact report and he was certified as a sex offender. I call Garda Lorraine Mongon.
GARDA LORRAINE MOOGON (sworn) - Examined by Ms Walley.
MS WALLEY: I think you were one of the investigating officers in this case and you were here for the duration of the trial; is that correct?
A. That is correct, yes.
Q. And you were here when the injured party Mary Shannon gave evidence to the jury as to the events which occurred on the night of the 30th May of 2005 at her home at 28 Oakwood Drive in Ennis; is that correct?
A. That is correct.
Q. I think you heard evidence that Mary Shannon was a 32 year-old single mother of three children. I think her children were then aged approximately 10, 8, and 4, and she was living at her home in a modem housing in estate in Ennis; is that correct?
A. That is correct, yes.
Q. And she was in a stable relationship with a man called Mark Mullhare and she had been going out with him for about 9 months but they had had an argument the previous week and he was not staying in the house on the night in question?
A. That is correct, yes.
Q. I think she is also tone deaf from the age of four and is obliged to wear a hearing aid;
A. That is correct.
Q. On the night in question she gave evidence that she went to bed shortly before 10 o'clock, that she had the bedside lamp on and also the light in the landing was on, the bathroom light which lights up the landing was on, and her bedroom door was open; is that correct?
A. That is correct, yes.
Q. She told the jury that she fell asleep with the light on and that she liked to have the lights for two reasons, one in case her children called for her in the night and secondly she was afraid of the dark?
A. That is correct, yes.
Q. She gave evidence that on this night which was a Sunday night that she fell asleep and she woke up some time after midnight and felt a man in the bed beside her whom she mistakenly believed was her boyfriend?
A. That is correct, yes.
Q. I think she told the jury that when he when she realised that the man was in the bed whom she believed to be Mark she said she thought to herself "Mark is back, that is good"?
A. That is correct, yes.
Q. And she described how this male body cuddled up to her, that after a while she realised that he was kissing her and that his penis had entered her vagina and it was only as this was happening that she started to notice a number of things about this man that were different to Mark?
A. That's correct, yes.
Q. First, she noticed that his kiss was sloppy, she then realised that the room was in darkness and she told the jury she said "Oh, the bulb must have blown” and then she realised there was streetlight coming from the street, the blinds of the bedroom were half pulled down -- this was May so there was some light coming in from the street - and she noticed that this man appeared to have tattoos on his arms and then realised it was not Mark that was having sex with her?
A. That is correct, yes.
Q. Her hand was also on his head and she realised that his hair smelt differently, there was some type of oil or gel, and also his hair felt a lot softer than Mark. I think she then told the jury that she then pushed this man off her and he fell away easily, she jumped up, ran to her bedroom door, the room was in darkness, she banged her head against the door, she opened it, she turned on the bathroom light and then she went back into the bedroom and turned on the bedroom light and then realised that Adam Keane was the man who had been in her bed and not her boyfriend Mark.
A. That is correct, yes.
Q. He said nothing to her, he just sat on the bed. She said that he looked like that he had done nothing wrong. She said that she started shouting at him "you are in so much trouble. I am going to tell Bev on you. I am going to get the gardai"? Now, I think she had given evidence earlier that she knew Adam Keane and that he that she knew him as the boyfriend of one of her close friends, Beverly Smith.
A. That is correct, yes.
Q. And Beverly Smith lived on the same housing estate and was also a single mother in her early 30s with three children?
A. That is correct, yes.
Q. I think the accused man in this case was born on 16th July of 1984, so he was 19 years of age or just short of 19 years of age when this event occurred?
A. That is correct, yes.
Q. I think she told the jury that she told him she was going to tell Bev and that she was going to get the gardai, that she grabbed her tracksuit bottoms which were on the floor, that she took her phone and she ran out of the house through the front door?
A. That is correct, yes.
Q. I think she left her hearing aid behind and she also was upset and gave evidence of this that she had left her children behind?
A. That is correct, yes.
Q. She gave evidence that she was very distressed, that she went to the house of Beverly Smith, that on her way over that she tried to contact her by mobile phone without success and she then banged on the door but the door was not opened?
A. That is correct, yes.
Q. She also gave evidence that she then contacted Tanya Walsh who was a woman who would have been friendly with her but they would have had their ups and downs, they would not be close friends; is that right?
A. That is correct, yes.
Q. Tanya Walsh was working as a late night taxi dispatcher and was rather surprised to get a phone call from Mary Shannon; is that right?
A. That is correct, yes.
Q. Such was the distress of the complainant when she got through to Tanya Walsh on the phone she mistakenly believed she had got through to Beverly Smith?
A. That is correct, yes.
Q. And she made a complaint as to what had happened to her and Tanya Walsh told her to go immediately to her house that was also on the estate and that she would be met by her babysitter Siobhan Hayes?
A. That is correct.
Q. And that is what happened?
A. That is correct, yes.
Q. As it happens two of your colleagues were in the estate that night and they had been attending a house a number of doors away from the complainant; is that right?
A. That is correct.
Q. That when she ran out of the house such was her distress that she did not notice the garda car and she ran in the opposite direction which was in the direction of Beverly Smith's house?
A. That is correct, yes.
Q. I think the gardai came to the scene and evidence was given as to the state that they had observed her in, I think a number of witnesses described her as sobbing, crying hysterically, gulping for air and not being able to get the words out?
A. That is correct, yes.
Q. I think your colleagues, Garda O'Leary and Garda Ryan they subsequently went to Beverly Smith's house where they met the accused man; is that right?
A. That is correct, yes.
Q. This was earlier or later that morning in the early hours of that the Sunday morning and they made him aware of the allegation which was being made against him and they took his clothes?
A. That is correct, yes.
Q. And those clothes formed an important part of the evidence against the accused man?
A. That is correct, yes.
Q. I think you took the initial statement of complaint from the complainant and you then brought her to Cork Hospital to the sexual assault unit and various samples were taken in relation to that examination?
A. That is correct, yes.
Q. I think on the following Tuesday the accused man was arrested by your colleague, Garda O'Leary, at his home which I think is outside Ennis?
A. Yes, it is Beamageeha just outside Ennis.
Q. I think he lives there with his mother and he was brought to the garda station and he was interviewed by the gardai with two memos of interview on 31st May?
A. That is correct, yes.
Q. On the Tuesday. And I think he told the gardai that his date of birth was 16th July 1984, he confirmed that he worked as a block layer and had been doing that for about two or three months. He said that he had been out seeing his grandmother, I think, on the Saturday and had been drinking and then had come back into town and had met this friend on the Sunday and he told the gardai that he had consumed a lot of drink on the Sunday during the evening and before the events complained of?
A. That is correct, yes.
Q. I think he also told the gardai - well, I think he told the cocktail was essentially a mixture of Dutch Gold which I think is cider...
MR NIX: It is not actually, it is a lager.
MS WALLEY: Well, Dutch Gold and Heineken and some Bud as well?
A. That is correct, yes.
Q. He told the gardai that he also took a substance which he was told was MDMA but he was not sure what it was. In relation to the allegations that were put to him he said that he had no recollection of what happened on the Sunday night after he left the Empty Pockets pub or club which is in the town?
A. That is correct, yes.
Q. He said in a later part of the interviews that "I can't remember being in the house or having intercourse with her so I don't know what to say to that but I know myself I am not capable of doing something like that as far as I am concerned." That is on page 77 off the memo.
And I think in essence what he said was "I don't remember. I had a lot of drink. I sometimes black out when I have a lot of drink and I have decided already to do something about. I don't remember anything after Empty Pockets or going to the house or having sex with her but I don't think I would have done it because it is not the kind of thing I would have done".
JUDGE: My recollection from the trial is that his attitude was that he would accept responsibility if there was evidence that he had but he just thought it out of character.
MS WALLEY: I think it was perhaps more nuanced than that, my lord. I can read the specific passages. He did not give evidence, my lord.
JUDGE: That was the impression I got.
MS WALLEY: His case was what was in the memos so perhaps I will just draw to your attention to what is in the memo.
What he said in the memo at page 80 was that he knew she was wearing a hearing aid. He was asked did he break into her house, this is at page 80, he said "not to my memory but it is a possibility I suppose".
And then he was asked "did you make your way to her bedroom and rape her" and he said "I don't remember but I wouldn't consider the thought of that".
Then at the bottom of page 77 when he is asked "Mary Shannon alleges that you did not have permission to be in her house, and that you did not have permission to have intercourse with her", he said 'I can't remember being in the house or having intercourse with her so I don't know what to say to that but I know myself I am not capable of doing something like that as far as I am concerned". That was in the first interview.
In the second interview on page 92 which is part of the second interview he was asked the question "do you think there is any truth in this allegation whatsoever" and his answer was "no, I don't think. Well, the fact is that if I did have intercourse with Mary and if it comes back from the blood test that I did have intercourse with Mary then I would not believe it was rape". That was his position my lord.
Now, the evidence was that the DNA analysis in relation to the semen did come back that it was his DNA profile?
A. That is correct, yes.
Q. I think the injured party in this case for the purposes of victim impact I think she attended Mr Michael Dempsey who is a clinical psychologist and a report was prepared dated 8th March of 2007?
A. That is correct, my lord.
Q. I do not know if your lordship has the report? Would your lordship like to read that before I continue?
JUDGE: Is she giving evidence?
MS WALLEY: That is still open to question. I believe she is.
MR NIX: As far as I am that supersedes this.
MS WALLEY: Yes. I might just for the transcript,.. I think in summary the report noted that she was the eldest of the family of nine; that she was deaf as a result of measles which she contracted when she was four years of age and as a result she wears a hearing aid. She had obtained five honours in her leaving certificate and is the single mother of three children who at the time of the rape were 10, 8 and 4. She reported that she had a fear of the dark since she was a child and as a result she leaves her bedside lamp on when she goes to sleep but she also told the jury that she left it on in case the children would contact her during the night. Following the rape she was brought by the gardai from Ennis to the Royal Infirmary in Cork and she reported feeling degraded, she was given the morning after pill which is a contraceptive and she was tested for sexually transmitted diseases and Aids and she had to wait for approximately six to eight weeks for the results of these tests and she found this distressing.
She reported that when she returned from Cork she had to stay in her parent's house and she took to the bed for six weeks. She was distressed by the media coverage of the rape and what she had felt was inaccurate reporting. She never returned to the house where the rape occurred as she would have found it too distressing and she reported that she would never have felt safe again there. She reported that she felt that she lost her independence following the rape and she had to go back to living with her parents. She eventually left her parents house and moved to another rented house but she did not feel safe there so she moved again. She now has an alarm in the house and two guard dogs and the dogs sleep in the bedroom.
She says she found it difficult to have an intimate relationship with her partner following the rape and the relationship subsequently ended. She is fearful of going anywhere on her own. She distrusts men with the exception of her father, brothers and her former partner Mark. She found giving evidence at the trial distressing and she found being here in Dublin for a week away from her children distressing. She attended a psychologist on one occasion in 2005 but did not make a second appointment as it was too distressing. She attended the two counselling sessions with the Rape Crisis Centre in Limerick but did not find them helpful. Mr Dempsey noted that is not unusual for people in the early stages of counselling to find it unhelpful because it is a gradual process.
She felt traumatised by the rape, she felt her life was ruined. She was in a constant state of alertness and is easily startled. She sometimes stays in bed for up to three days because she cannot be bothered to get out of bed and can go for days without eating. She has little energy and media accounts of other sexual assault cases distress her because they remind her of hers.
She and her children had to leave the house which she had lived in-for nine years following the rape and she was distressed about that because obviously they had to move to a new area and both she and her children lost the friends they had made in that area. She has never spoken to her children about what happened and she is particularly worried about her daughter who is now 12 may know about it and she was advised to engage with the Rape Crisis Centre; is that correct?
A. That is correct, yes.
Q. So that is the report in relation to Miss Shannon. In relation to the accused man you have indicated that he was 19 years of age...
MR NIX: He was 18 at the time.
MS WALLEY: Sorry, he was 18 nearly 19 at the time...
MR NIX: He was 18 and nine months.
MS WALLEY: We have a long way to go if Mr. Nix...
MR NIX: We will not have a long way to go not if you are accurate.
MS WALLEY: If there is any need to interject in the level of aggression...
MR NIX: Well I am just listening to the attitude that has suddenly been taken by the state. Carry on.
MS WALLEY: It is not a question of attitude, it is a question of evidence.
MR NIX: Absolutely, it is.
Q. MS WALLEY: And if I would behave in any way inappropriate his lordship will be the first to correct me. Now the young man has no previous convictions; is that correct? He has no convictions?
A. No, that is correct.
Q. Do you know anything else about him?
A. No.
Q. Thank you very much. If you would answer any questions.
Witness cross-examined by Mr Nix
Q. MR NIX: Does he live with his mother and three young boys a number of miles outside the town of Ennis?
A. That is correct, yes.
Q. So you know that much about him. Am I correct in saying he worked as a bricklayer?
A: At the time of the incident I understood he was a bricklayer. I am not aware of his current employment status.
Q. My understanding is that since this matter arose he has not been in a position to make a commitment so he has not been working since this incident but at the time he was a bricklayer. He is now 20 years; is that correct?
A. That is correct, yes.
Q. Am I correct in saying that when your colleagues went -- you were in court for the entire hearing -- when your colleagues went to the house to where his lady friend had lived one of your colleagues said they had a bit of difficulty in waking him, it took a number of minutes; is that correct?
A. That is correct, yes.
Q. I think he volunteered his clothing; is that right?
A. That is correct, yes.
Q. And he also volunteered to give blood and other samples; is that correct?
A. That is correct, yes.
Q. And, in fact, because of a clerical error in the office in the garda station in Ennis they forgot to get his signature of consent for those samples so they had to go back to him a number of days later to ask him to sign and give further samples; is that correct?
A. That is correct.
Q. He did that; did not he?
A. He did, yes.
Q. Now, I think in fairness to him having read these interviews which were not in any way contested they were not contested in any way?
A. That is correct, yes.
Q. And, in fact, all of the significant or forensic evidence that was all done by consent; is that right? There was no objection taken to any of that; is that correct?
A. That is correct, yes.
Q. In fact, his arrest, his detention they were all consented to as having been done properly in accordance; is that correct? .
A. That is correct, yes.
Q. I think it is fair to say when he was in the garda station with the gardai he answered every question he was asked; is that correct?
A. That is correct, yes.
Q. He was asked on page 76:
“Question: Did you rape Mary Shannon 29/5/05?
"Answer: I can't remember but I don't believe that I would do something like that. In all my life I have never raised a hand to a girl. It goes against everything that I believe. I am sure that anyone that knows me will say that as well.
Is that correct?
A. That is correct, yes.
Q. At page 77 he is asked.
"Question: Mary Shannon alleges you did not have permission to be in her house and that you did not have permission to have intercourse with her?
"Answer: I can't remember being in the house or having intercourse with her so I don't know what to say to that. But I know myself I am not capable of doing something like that as far as I am concerned"; is that correct?
A. That is correct, yes.
Q. He was asked did he normally suffer from blackouts or memory losses; is that correct?
A. That is correct.
Q. He said "often when I have been drinking heavily"; is that correct?
A. That is correct.
Q. Concerning Miss Shannon he was asked did he know anything else about her and he said:
"Answer: She wears a hearing aid that is about it?
"Question: Why do you think she wears a hearing aid?
"Answer: As she can't hear that well.
Is that correct?
A. That is correct, yes.
Q. He was asked:
"Question: You said there a minute ago that you did not fancy Mary Shannon. I find it hard to believe that you would break into her house and rape someone that you did not have a fancy for?
"Answer: That is why I do not believe that I raped Mary Shannon.
Is that correct?
A. That is correct.
The next question after that is.
“Question: Do you think the DNA will make a liar out of you?
“Answer: I don't know.
Q: Is that right?
A. That is correct, yes.
Q. And the second interview he was asked did he consume anything other than alcohol and he said "yes, I put a... into my drink which I was told was MDMA".
Q: Is that correct?
A. That is correct, yes.
Q. He was asked a couple of questions further down, this is on page 87 for my friend's benefit:
“Question: So you would take a substance in your drink without knowing what it is?
“Answer: I suppose I would when I am drunk.
Q: It then follows a discussion about stupidity and responsibility; is that correct?
“Question: Are you a responsible person?
“Answer: When sober, yes.
“Question: Are you a responsible person when drink?
“Answer: Usually I am.
“Question: Are you reckless when you are drunk?
“Answer: It is hard to tell about myself probably I am not sure.
“Question: Do you ever do anything stupid when you are drunk?
“Answer: Everyone does something' stupid when they are drunk so I guess I do.
“Question: Is it possible you would do something stupid when you are drunk.
“Answer: Not anything, it is hard to tell. I am not drunk now. It is a confusing type of question, I suppose it would be.
Further down he says: Answer: It is possible to do stupid things when I am drunk as I am probably easily led when I am drunk.
“Question: If you were on your own and not led by anybody would you be liable to do stupid things?
“Answer: I suppose I would when drunk.
On page 89 he is asked.
“Question: So you cannot remember the time between Empty Pockets and being in your girlfriend's with the three gardai standing in front of you.
“Answer: I can't remember one thing in between it.
“Question: Why can't you remember, Adam?
“Answer: Because I blacked out. I blacked out before loads of times.
“Question: What were you doing before you blacked out?
“Answer: I was on my way after five or six cans and I keep drinking I will black out. That is why I have been thinking of giving up the drink for a while.
“Question: Can you remember the gardai from that night.
“Answer: I don't know, could have been one of ye for all I know. The only thing is my girlfriend is only back from holidays or something.
“Question: Can you remember who woke you?
“Answer: No, I don't know but I remember seeing six legs in front of me.
"Question: Tell me, do you know Mary Shannon and where she lives.
“Answer: Yes.
Then it goes on?
“Answer: ...Over in her house before.
“Question: Mary Shannon's house?
“Answer: Yes.
“Question: Ever been in her bedroom?
“Answer: No.
At the bottom of page 89:
“Question: Were you ever in her bedroom?
“Answer: No, not to my knowledge.
“Question: Could you have been there without your knowledge?
“Answer: It is possible I was there when I blacked out. I don't have memory of this like.
“Question: You are aware of the allegation Mary Shannon is making?
“Answer: Yes.
“Question: She is alleging you had sexual intercourse without her consent; what have you to say to that?
“Answer: I have no memory of this. I can't remember.
“Question: Do you think it is possible you would have done this in sexual assaulting her?
“Answer: Well in my personal opinion I don't it is possible for me to do something like that because in my life I have never raised my hand to a girl or never been abusive towards a girl either. It goes against everything I stand for.
“Question: It is possible you thought you were in Beverly's house that night?
“Answer: I considered that a possibility myself but I don't know what state of mind I was in.
“Question: So you have no recollection of how you got to Beverly's house, what time you got in there or what route you took to get there?
“Answer: I have none whatsoever.
I think finally on page 93 sorry bottom of page 92:
“Question: Do you think there was any truth in this allegation whatsoever?
“Answer: No, I don't think - well, the fact is if I did have intercourse with Mary and if it comes back that I did have intercourse with Mary then I would not believe it was rape.
“Question: You are 100 % sure that your semen will not be found.
“Answer: I cannot say that because I cannot remember the intervening period between Empty Pockets and been woken by the garda.
“Question: Is it possible your semen will come back?
“Answer: I don't know. It is a possibility. I hope to God it won't?
Q. Is that correct?
A. That is correct, yes.
Q. I think he lives about a number of miles in a small area outside the town of Ennis with his mother?
A. That is correct, yes.
Q. I think this case got extensive coverage in The Clare Champion, The Clare People, and Clare FM; is that correct?
A. That is correct.
Q. He was well named throughout?
A. That is correct, yes.
Q. It was already indicated he was placed on a sexual offenders register; is that correct?
A. That is correct, yes.
Q. Thank you, my lord.
JUDGE: Thank you very much.
MSWALLEY: Thank you garda. Mary Shannon.
MARY SHANNON (sworn) - Examined by Ms Walley.
MSWALLEY: Miss Shannon you are very softly spoken if you can move forward to the microphone. You wanted to address his lordship about the impact this has had. He has heard a summary about the victim report prepared by Mr Dempsey What would you like to say to the judge?
A. It has had a huge impact on my life and my kids life. I never went back to the house. I lived in that house for nine years and I never went back to that house after that happened. I have actually moved house twice because I didn't feel safe in the first house that I moved in to afterwards.
Q. Is there anything else you would like to say to his lordship? Take your time if you would like a glass of water you can have a glass of water. You have said everything you want to say?
A. Um.
JUDGE: Thank you very much.
MS WALLEY: That is evidence, my lord.
JUDGE: You will recall I asked that you tell me what th0 Director of Public Prosecutions has to say about the case of DPP and NY and I would like to hear what the Director has to say, first of all, about the Court of Criminal Appeal setting aside in its entirety what the Director called a moderate penalty imposed by me and secondly about the court criticising me for saying that I try to be consistent with myself.
MS WALLEY: Well, your lordship dealt with this matter on 9th February when your lordship asked me to do two things. Your lordship asked me to address you on the circumstances of this case in the context of NY and the second thing your lordship asked me to do was to address your lordship on that in the context of the remarks made by the Director which had been reported in the Irish Times that day to the effect that it would be better if there was greater consistency of sentencing from judges. In relation to that latter matter if I might address you on that first? I understand...
JUDGE: It just so happened that there was that headline in the newspaper that day but the Court of Criminal Appeal in the NY case criticised me for saying that I sought to be consistent with myself.
MS WALLEY: Yes.
JUDGE: ...When everybody in the country is calling for judges to be consistent I am reprimanded for saying that I tried to be; so what has the Director got to say about that?
MS WALLEY: Firstly, the Director would say in relation to the comments that were reported in the Irish Times his comments were not directed to trial judges, they were directed to the appeal courts. The request for consistency was a request directed to the appeal courts and what he was saying was this: He had been asked a question at that meeting that he was attending which was a meeting of law students. He was asked for his views on mandatory sentencing and what he said in reply was that he thought it would be desirable that the appellant courts - not talking about your lordship - but the appellant courts would themselves set out the starting point in relation to tariffs or ranges for sentences which could then be tailored by the individual trial or sentencing judge on the basis of the particular facts of any given case and on the particular circumstances of the offender.
He said that the appellant courts had been reluctant to engage in that process and to set starting tariffs and that as a result it was very hard to find anything other than a very small number of cases where the appellant courts said this should be the starting pointed for X or Y offence in certain circumstances.
He said the difficulty that that puts him in and puts his counsel in circumstances where your lordship then addresses counsel and says: address me on sentencing is that because the appellant courts have not laid down what the starting points are it is very, very difficult for his counsel to then come in and address your lordship and in the event the matter goes elsewhere there is then a difficulty in the appellant court.
What he also said was that if the appellant courts do not themselves indicate what they believe to be the starting points are there is a serious risk that that decision will be made for them by way of mandatory minimums directed by the Oireachtas. He said that he believes that the trial judge is the best person to assess not only the crime and the circumstances of the crime but also to assess the circumstances of the offender.
JUDGE: Is that nonsense when he is appealing trial judges all the time on the grounds of alleged undue leniency almost as a routine step in the prosecution?
MS WALLEY: In the cases that I have been involved in that is not so and, in fact, in the last week, my lord, the Director has staunchly defended two convictions which were attained when you were the trial judge and successfully defended your lordship in relation to both.
JUDGE: I am talking about his appeals on the grounds of alleged undue leniency.
MS WALLEY: If I can address you in relation to NY. The facts of NY were entirely different and in fact your lordship ...
JUDGE: You have dealt with one thing. Secondly, what I was really asking you about in NY the Court of Criminal Appeal said that I was in error of principle because I said I tried to be consistent with myself; what does the Director say about that.
MS WALLEY: I do not know the Director's instructions in relation to that...
JUDGE: That is what I asked you.
MS WALLEY: I am not sure if it was precisely formulated in that way because I think your lordship knows that I am careful if I had believed that your lordship had directed me to do that I would have done it. But I can say personally as a counsel who has appeared before your lordship and has been in the CCA with all the pluses and minuses attendant on that experience I can say to your lordship that I do believe your lordship is consistent and that you are a model of consistency and I say that any trial judge can only refer to what his first of all his or her own ...
JUDGE: You are not grasping the point. The Court of Criminal Appeal in NY criticised me for saying I tried to be consistent.
MS WALLEY: In fairness, my lord, Mr Justice McCracken in the later case of GD said it was not a criticism and that said that you had taken it as a criticism when it was not meant in that way. What the Court of Criminal Appeal was saying in NY Mr Justice McCracken said in GD was that this was an exceptional case, that NY was exceptional. And what I am saying to your lordship is that in this case NY is very, very different. Your lordship in NY pointed to the fact that the accused had bent over backwards to assist the complainant in that case. He always signalled evidence in the reports was that he was highly unlikely to re-offend. And I say all of those circumstances are different to the present case.
In the present case it is quite clear that the young man was entitled to exercise his constitutional right to have a trial by jury. it would also be less than fair of fair of me to say that when she was cross-examined although she in her report says the cross-examination was very difficult, she was cross-examined on what was in her statements and I accept that. However, in any case of rape your lordship must also remember the words of Chief Justice Finley in Tiernan - again, a case which your lordship is well familiar with - which is that "whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine circumstances which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional".
Your lordship has asked me to address you on NY and what I am saying is this: And in GD the court later said that it was not a criticism of you, it was simply saying that any sentencing judge should advert to the possibility of a custodial sentence. However, in GD Mr Justice McCracken also referred to the fact or to the words of Chief Justice Finley in Tiernan and said "it would be an exceptional case". And they are the extent my instructions in relation to addressing you on sentencing. I do not know if I can be of assistance in any other way.
JUDGE: Mr Nix?
MR NDC: My lord, in the NY case as your lordship indicted there were two instances of penetrative sex and it is perfectly clear from the statement by the accused in that case as Mr Justice Finley describes it, "It is clear on the best account from the point of view of the accused of the victim having engaged in kissing with him fell asleep lying on her stomach. There were other people asleep in the room.
The offences were committed while the victim was asleep. The accused fondled the victim and became sexually aroused. He committed both vaginal and anal rape upon her. He did not ejaculate. He knew she was asleep. There was no question of her consenting to any aspect of this behaviour. She then woke up with a jolt, realised what was happening, became shocked and distressed and told him to go home. She ran from the room."
I do not make the case in this case before your lordship, I do not make the case that my client knew that she did not consent. The reality of the matter is that from the minute one he has said he has no memory of it. He has not tried to resile from that. I would ask your lordship to take into account his attitude in the garda station for a young man was consistent throughout as questions were asked and as his mind set, as it were, developed he did not deny it but his own personal perception of himself was that he could not do it because it was not of his nature. At least he did not believe it was of his nature.
Now he knows differently. And there was a prayer at the end of it, hopefully it would not be him. But he could not remember because he was out of his mind with the - he was in a blackout with the drink which your lordship clearly pointed out to the jury that a person who has suffered blackouts from drink before to drink in such a manner so as to cause a blackout is recklessness. So that was the position, my lord.
I note and it was not led in the victim impact report that the misfortunate injured party in this case to some extent blames herself. My client asked me to indicate clearly there is only one guilty party in this and that is himself. In no way should this lady in any event consider that she did anything wrong.
She did not. My client takes full responsibility for this and he deeply regrets what has happened. Since then he has led a different life. He does not go out much except with many friends and he is resolved that when he is free so to do his father who lives in England - he lives a number of miles outside Ennis in a rural area, everybody knows him, everybody knows his mother, everybody knows the other members of the family. It is not a nine-day-wonder there. There is no space there for him to become anonymous.
Everybody knows him. If it were in Dublin City where there are almost a million people there are persons who are on the register and who have received bad publicity could go and be anonymous but not in his area and not in the town of Ennis.
So in a rural area the effect of being on the registrar and the effect of it being I think on - I think the Clare Champion has one the highest sales of a local newspaper, if I might describe it as a country newspaper, it comes out of a Thursday. It has a very high sales, it is circulated widely in the county.
The Clare People is another newspaper in the area and then there is Clare FM which is a very popular radio station. The population of Clare is by comparison with Dublin very, very small and it is not a seven-day-wonder, it is a fact he will drag the shame of this offence around him for the rest of his life.
With regard to the cross-examination of the complainant, my lord, I would ask your lordship — I did not, in fact, cross-examine as such, I simply led further details all taken from the statement she made to the gardai. I did not suggest for one minute that she was not telling the truth, that she was putting a gloss on it. I did not do that at all. I would ask your lordship to that take into account. I would ask your lordship to take into account the cooperation of the defence and on my client's instructions with the prosecution to the extent that so much had been agreed; the forensic evidence et cetera, the interviews, what was contained within the interviews, his time in detention et cetera which greatly sharpened the case. I would ask your lordship to take into account the element of veracity of what he said. He did not deny it in effect, he said "I can't believe I would have done such a thing".
That is the gist of what he was saying and he prayed to God it was not true. Your lordship will have heard from the gardai in his own colourful way it would be difficult to wake him alright because of the amount of drink taken.
Then there is a vicious circumstance of coincidence. That is that these two houses are close by. The complainant's house unfortunately her back door was broken, access can be easily gained and when my friend used to visit his lady friend who lived nearby he went in through the back door, that was a way it was let open for him. That is the position.
I would ask your lordship to take into account he has previous convictions, he is of previous good character and that he was a worker and that he was 18 at the time and is now 20. He has not seen the inside of a prison and he has served no time. And I would say he is coming from a relative innocent background he has had a very rude awakening coming for him. He is going to go into custody in the state carrying with him perhaps the second worst burden — I think the worth burden for someone to carry is paedophile - but he is carrying with him the second worst burden, I believe in my own opinion, into a cell into a prison and he has not seen it before. So he has a rude awakening, he is a young man and I suppose I could describe him as a country man.
So that is the position, my lord. So I would ask your lordship to take those matters into account. His father, my lord, lives in England. In no uncertain terms he has no future in Clare. He has no future, he believes, in Ireland. It is resolved that when he is free he will go to England, my lord, and reside with his father and work there.
Needless to say, of course, the obligations of being a registered sexual offender will carry through to there. That is his intention so to do.
JUDGE: Ms Walley, there is some supporters club shaking theirs heads in relation to what Mr Nix says. Who are these people?
MS WALLEY: I assume they are the family and friends of the complainant. I do not know, my lord, I was not aware of it.
JUDGE: Yes, Mr Nix?
MR NIX: That is more or less all I have to say to your lordship. He has thrown away, my lord, a bright future in Clare where his family reside except for his father and he will carry this burden and be named for it for the rest of his days in County Clare. I would ask you to take those matters into account. I do not think there is an awful lot more I can say to your lordship. I would ask your lordship to take it, my lord, that he really did not challenge anything in the case and even to this day he finds it difficult to believe he had done such a thing and he has been found so by the jury.
Sentence
JUDGE: Very good. I declare the accused a sex offender as required by statute. It is the experience of this court that a surprising number of cases come before it in which a woman, for example, at a party goes to a bedroom to rest and goes asleep and comes to find somebody inside her engaging in unlawful sexual congress. In the NY case, which has been referred to I, expressed the view that juries were reluctant to convict in these cases and that was certainly so for a period of time. It does seem to me now that more juries are convicting in these cases. Their frequency is quite surprising and clearly there needs to be substantial protection in place for a predator wandering around the bedrooms at parties and engaging in unlawful sexual congress of this kind.
And also the other situation would be where somebody through drink, drugs, or a combination drinks himself into a situation where he does not know what he is doing.
In the NY case I imposed a sentence of four years imprisonment which Mr Dennis Vaughan Buckley described on behalf of the prosecution as moderate and was intended by me to be moderate. The Court of Criminal Appeal set aside that sentence in its entirety. It indicated that a trial judge in the case of anal and vaginal rape had to direct his attention in the first instance to a suspended sentence and it also took issue with my having said that I sought to be consistent with myself. Having regard to the approach taken by the Court of Criminal Appeal to this type of offence in the NY case I have to ask myself whether or not I would be comfortable if I imprisoned this particular accused who is a young man with no previous convictions whose attitude was that he thought what he did was out of character, what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibility in the matter.
This court deals with a lot of people from respectable backgrounds, no previous convictions who take substantial quantities of drink and mix it with drugs or even without mixing it with drugs and they come before this court in respect of either a homicide or a rape and it seems to me to be a lot of rape which it is going to be when they come before the court in these circumstances. This accused has no previous convictions, I would think that from his experience in this case he is unlikely to offend again. I think it necessary that it come down clearly from this court that people cannot wander around the bedrooms and behave in this predatory fashion and I would think a sentence of four years which I imposed in the NY case is a moderate and lenient one...
MS WALLEY: I am sorry to interrupt your lordship, I am genuinely sorry. It was three years in the NY.
JUDGE: Three years was it?
MR NDC: The report I have in the case were two concurrent sentences of three years each with the last nine months of each suspended.
JUDGE: All right. It does not effect, in principle, where I am going. I thought that a moderate sentence, Mr Vaughan-Buckley appearing on behalf of the
Director of Public Prosecutions expressed it as being a moderate sentence. It was set aside in its entirety by the Court of Criminal Appeal. I would not be comfortable if I sentenced this man in the light of what happened in the NY case. He is certificated as a sex offender and remains certificated as a sex offender but entirely by reason of the approach taken by the Court of Criminal Appeal I sentence him to three years imprisonment suspended on his being of good behaviour in his own bond of €1,000 for a period of five years.
MR NDC: Will he take the bond now my lord?
JUDGE: Yes.
REGISTRAR: Do you hereby acknowledge yourself bound to the people of Ireland to the sum of €1,000 the conditions being that you will keep the peace and be of good behaviour towards all the people of Ireland for a period of five years from this day and further that you will come up if called upon to do so at any time within that four years of five years to serve of the sentence of the court this day imposed on you but suspended on your entering into this recognisance; Do you acknowledge yourself so bound?
A. Yes.
MR NIX: The period of time...
JUDGE: I repeat that I will consider a prison sentence to be served necessary and appropriate but the only reason I am taking this course is because of what the Court of Criminal Appeal has done in respect of this form of crime.
MR NIX: Very good, my lord. The period of the registration, my lord, five years is it?
JUDGE: I merely certify as a sex offender, the statute carries that but the period of suspension is five years.
MR NDC: Thank you, my lord.
JUDGE: Yes and I should warn your client, Mr Nix, that in spite of what Ms Walley has said the Director is very trigger-happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter.
MS WALLEY: My lord, in relation to that might I just say this? I was very careful to distinguish the facts of NY which was a plea of guilty to the facts of this case which was a trial and a rigorous of trial and I say that there is a difference and I think it is unfair to characterise if the Director does give instructions it would be unfair to characterise that as trigger-happy. It would be a response to a nuanced differences between the two cases.
The GD case where the Court of Criminal Appeal also issued a non-custodial sentence for a conviction of rape
In a case similar to the Adam Keane case in 2004, DPP v GD, the Court of Criminal Appeal issued the judgment which follows below.
The judges on the Court at this time were Brian McCracken, then a judge of the Supreme Court (since retired), Paul Gilligan, a judge of the High Court, and the late Sean O'Leary, then a judge of the High Court. The judgment of the Court was delivered by Brian McCracken on 13 July 2004.
The Respondent (GD) pleaded guilty to one single charge of rape under s.4 of the Criminal Law Amendment Act 1990 and was sentenced to three years detention. At the time of sentencing the Respondent had already spent almost two months in detention and the learned trial Judge suspended the entire balance of the sentence. The Director of Public Prosecutions has applied to the Court pursuant to s.2 of the Criminal Justice Act 1993 to review the sentence.
The circumstances of this case are quite unusual. The offence took place on 12th November 2001, at which time the Respondent was 15 years of age. The Respondent and a girl of his own age, together with another friend who was only 12 years old, had gone to a flat where the 12 year old's grandmother lived. On the way they had gone to an off-licence and purchased some beer which they brought to the flat with them. During the evening the Respondent drank a considerable quantity of beer, particularly considering his age. At some time fairly late in the evening the 12 year old's grandmother returned to the flat with a male friend who also had had a considerable amount to drink. Further drink was consumed and a dispute developed between the Respondent and this man, but it does not appear to have been particularly serious. Eventually the man, who by this stage was quite drunk, decided that he was going to go home and left the flat to get a taxi. The Respondent went with him, and before he could find a taxi the Respondent pulled him into an area where containers were parked, attacked him and raped him.
A garda patrol car arrived on the scene, having been alerted by a member of the public that there was some sort of trouble, and the Respondent was arrested. The victim was apparently not able to give a coherent account of what had occurred until the next morning, but he then made a formal complaint to the Gardaí. When the Respondent was interviewed by the gardaí in the presence of his father he admitted the offence, and showed considerable remorse.
The approach to be taken by this Court when considering an application under s.2 of the Criminal Justice Act 1993 has been clearly set out in a number of earlier judgments, and in particular in DPP v. Byrne [1995] 1 ILRM 279. In that case it was emphasised that the onus of proof rests on the Director of Public Prosecutions to show that the sentence was unduly lenient, and that the Court of Criminal Appeal should only intervene if there was a substantial departure from what would be regarded as the appropriate sentence. The question at issue here, therefore, is whether a suspended custodial sentence under the circumstances of this case should be considered a substantial departure from the appropriate sentence.
In considering the sentence in the present case the learned trial Judge placed great reliance on the judgment of Fennelly J in this Court in DPP v. NY [2002] 4 IR 309. In that case the Court considered whether and in what circumstances a non-custodial sentence should be imposed on a conviction for rape. The learned trial Judge in the present case commented in relation to that case:-
“The probation officer, who furnished an extensive report, I think proceeded on the basis that this was a case where a non-custodial sentence could not or would not be imposed, but the Court of Criminal Appeal seems to have directed at the starting point of one's consideration as to whether it can be dealt with on that basis or not.”
This Court is satisfied that the Court of Criminal Appeal did not give any such direction in the NY case. In fact, that case emphasised that a custodial sentence should normally be imposed for such a crime. At page 315 of the report of that judgment it was said:-
“The fact that the crime of rape normally calls for the imposition of a custodial sentence has now been established for many years. The cases are well known. The crime of rape is one of the most serious in our criminal calendar. Normally, it will merit a custodial sentence.
Nonetheless the Court imposing sentence must not deprive itself of the possibility of identifying the exceptional case where a custodial sentence may not be warranted. It is a truism that the Courts must sentence the offender and not the offence.”
Earlier, in a passage quoted with approval in the NY case, this Court held in DPP v. R O'D [2000] 4 IR 361 at page 363:-
“It is important that this Court should make clear at the outset that in the absence of a statutory provision to that effect, it is never mandatory on a trial judge to impose a custodial sentence. This principle was recently re-affirmed by this Court in DPP v. McCormack [2000] 4 IR 356. Needless to say that does not mean that a trial judge is at large as to whether he or she imposes a custodial sentence or not. Not to impose a custodial sentence in a particular case may amount to an error in principle which would be capable of correction by this Court. But there is no question of an absolute rule that for certain types of offences a custodial sentence is mandatory.”
The principle behind these decisions is quite clear. In considering the appropriate sentence in a rape case, the sentencing judge must approach his deliberations on the basis that normally a custodial sentence will be imposed. In considering the appropriate sentence, however, he is not precluded from examining the particular circumstances of the case to consider whether such circumstances are so exceptional as to justify a departure from the norm. Of course in the majority of rape cases, the question of a non-custodial sentence will never arise and the only consideration for the sentencing judge will be the length of the custodial sentence. However, there are cases in which the sentencing judge ought to consider the possibility of a non-custodial sentence. These are case in which there may be special or exceptional circumstances which are frequently related to the position of the accused. This has been emphasised in the NY case where it was said in the passage quoted above “It is a truism that the Court must sentence the offender and not the offence”. In similar vein, in DPP v. McCormack [2000] 4 IR 356 it was said at page 359:
“Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependant upon those two factors.”
In the present case, while the learned trial Judge may have somewhat misinterpreted the NY case, nevertheless this Court is satisfied that he did in fact apply the correct principles. He had the facts that the Respondent pleaded guilty and at a very early stage made a full statement admitting his involvement in the rape of the victim and further that at the earliest possible opportunity the Respondent was extremely remorseful for his involvement in this crime. He had before him a detailed and very helpful report from the Probation and Welfare Service which was very positive. The Respondent had also attended a group treatment program for adolescent boys who have sexually abused run by the Southside Inter-Agency Treatment Team at Our Lady's Hospital for Sick Children, and the learned trial Judge had before him a report from the principal psychologist of that organisation which again was very positive. Both these reports emphasised that the treatment program was proving very beneficial and that the Respondent was remorseful and had taken seriously his need to avail of treatment and counselling. It was anticipated that the would have a further 14 months of treatment under the program which, as it was only for adolescents, he would not be able to join if he served any substantial prison sentence. The reports also emphasised that, at the time the offence was committed, he was only 15 years of age and was understandably in a state of confusion over his sexuality. The evidence was that, since the offence was committed, the Respondent had accepted his homosexuality and had entered into a homosexual relationship, and importantly that his parents had accepted the situation and were supportive of him.
In the view of this Court the learned trial Judge was correct in identifying the present case as one in which there was exceptional circumstances. He had to balance the undoubted fact that there was violence involved in this crime with the fact that this was an isolated event committed by a 15 year old who was trying to come to terms with his homosexuality. While the Court must have every sympathy for the unfortunate victim of this rape, the Court can see no useful purpose which could be served by imposing a custodial sentence on the Respondent. The balance of his sentence has been suspended on terms that he remains under the supervision of the Probation and Welfare Services for a period of three years from the date of sentence, and that he will continue his treatment. Should he fail to do so, he has the spectre of the three year sentence hanging over him. In addition, he has been placed on the Sexual Offenders Register which is in itself a punishment. He has served a short period in prison on remand, which should act as a sufficient deterrent to ensure that he will not breach his bond.
This Court would emphasise again that the circumstances of this case were unusual and exceptional, as they must be to justify a non-custodial sentence. The learned trial Judge has taken into account the relevant considerations and this Court does not consider that the sentence, in these exceptional circumstances, was unduly lenient. The Court refuses the application of the Director of Public Prosecutions.