Recent Rape Sentencing Analysis: The WD Case
& Beyond
This document was prepared by Katharina Ó Cathaoir
Judicial Researchers’ Office | 22nd November 2012
Disclaimer
While every effort has been made to ensure the accuracy and completeness of
the information contained herein as to current trends in rape sentencing, it
should not be relied on as a definitive statement of the law and is intended for
reference purposes only. In particular, given the considerable difficulty in
obtaining up to date judgments, we advise readers to double check that the
law is correctly stated before relying on the information herein.
In accordance with the legislation, the victim is not identified. At this stage, it
is felt appropriate to remove the name of the accused, apart from official
reports.
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
i
Table of Contents
Disclaimer ...............................................................................................................................................i
1.
Summary ....................................................................................................................................... 1
1.1. Overview ........................................................................................................... 1
1.2. Role of the prosecutor ..................................................................................... 1
1.3. Comment ........................................................................................................... 1
1.4. Considerable delay rape cases ....................................................................... 4
2.
Part I: Principles in the WD case .............................................................................................. 5
2.1. General principles from Tiernan and from WD .......................................... 5
2.2. Punishments below the median .................................................................... 6
2.3. The median range of punishments ................................................................ 6
2.4. Punishments beyond the median ................................................................. 7
2.5. Most severe punishments ............................................................................... 8
2.6. Aggravating factors ......................................................................................... 9
2.7. Possible mitigating factors ............................................................................ 10
2.8. Not mitigating factors ................................................................................... 11
3.
Part II: Rape sentencing since 2007 ........................................................................................ 12
3.1. Punishments below the median ................................................................... 12
3.2. The median range of punishments .............................................................. 12
3.3. Punishments beyond the median ................................................................ 17
3.4. Most severe punishments ............................................................................. 22
3.5. Considerable delay rape cases ..................................................................... 26
3.5.1. Punishments below the median ............................................................ 26
3.5.2. The median range of punishments ....................................................... 27
3.5.3. Punishments beyond the median ......................................................... 29
3.5.4. Most severe punishments ...................................................................... 30
3.6. Mitigating & aggravating factors................................................................. 32
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
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Recent rape sentencing analysis: the WD case & beyond
1.
Summary
1.1. Overview
This handbook conducts an analysis of the sentences imposed for rape by
Irish courts. Part I examines The People (DPP) v. WD [2007] IEHC 310 by
outlining the salient points of the decision, in particular the separation of rape
sentences into categories of punishments. The mitigating and aggravating
factors are also laid out.
Part II analyses recent sentences for rape since 2007. All reported Court of
Criminal Appeal (CCA) cases post The People (DPP) v. WD are included as
well as a survey of two years of Irish Times reports (covering the period
November 2010 to November 2012). The latter cases should be approached
with caution as the accuracy of newspaper reports cannot be guaranteed.
Where possible cases have been listened to on the Courts Service digital audio
recorder (D.A.R.), to ensure greater reliability. This is noted in the relevant
footnotes.
Beside the name of each case the actual period of imprisonment imposed
(minus any suspension of sentence) is stated. Finally, a table of mitigating and
aggravating factors that were noted in the more recent cases but not expressly
stated in The People (DPP) v. WD is provided.
1.2. Role of the prosecutor
Since the WD case, the prosecution has adopted a limited role in sentencing.
Counsel will indicate whether on the broad classification, on their view of the
case and on the instructions of the DPP, the case is in a category of
seriousness for this heinous offence involving possibly a less than very severe
punishment; a case that tends towards the median of rape as sexual violence
which might result in a punishment appropriate to that median; a case which
is worse than that general median which might attract an appropriately
severe sentence beyond the median or in the most serious category which
might result in punishment up to and including life imprisonment. The
decision in WD, however, needs to be read as a guide to the generally
accepted approach.
1.3. Comment
In The People (DPP) v. Tiernan [1988] I.R. 250, Finlay C.J. stated at p. 253:
1
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“The crime of rape must always be viewed as one of the most serious
offences contained in our criminal law even when committed without
violence beyond that constituting the act of rape itself. In Attorney
General v. Conroy [1965] I.R. 411 this Court stated that the nature of the
offence was such as to render unconstitutional any statutory provision
which could permit it ever to be regarded as a minor offence.
The act of forcible rape not only causes bodily harm but is also
inevitably followed by emotional, psychological and psychiatric
damage to the victim which can often be of long term, and sometimes
of lifelong duration.
In addition to those damaging consequences, rape can distort the
victim's approach to her own sexuality. In many instances, rape can
also impose upon the victim a deeply distressing fear of sexually
transmitted disease and the possibility of a pregnancy and of a birth,
whose innocent issue could inspire a distress and even a loathing
utterly alien to motherhood.
Rape is a gross attack upon the human dignity and the bodily integrity
of a woman and a violation of her human and constitutional rights. As
such it must attract very severe legal sanctions.”
Finlay CJ went on to suggest, at p. 254:
“…having regard to the fundamental necessity for judges in sentencing
in any form of criminal case to impose a sentence which in their
discretion appropriately meets all the particular circumstances of the
case (and very few criminal cases are particularly similar), and the
particular circumstances of the accused, I would doubt that it is
appropriate for an appellate court to appear to be laying down any
standardisation or tariff of penalty for cases.”
However, this comment has not been taken to mean that an analysis of the
pertinent principles with guidance as to the relevant sentencing bands that
have been established by precedents offend this. The usefulness of
generalised guidance is shown by the general adoption by judges of the
categorisation of precedents within the WD case. The practice has been
approved with caution by the Court of Criminal Appeal. Commenting on the
decision in WD, in The People (DPP) v. Adam Keane [2007] IECCA 119Chief
Justice Murray stated, at p. 199: 1
“Nonetheless, with that qualification in mind, [cases in the media] did
provide some useful indicators for the purpose of the broad exercise
involved in that case. The judgment did not purport to set standard
1
[2008] 3 I.R. 177.
2
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sentences or tariffs but is a valuable reference point in ascertaining the
wide variety of factors … which can influence sentencing in rape
cases.”
In this handbook, three exceptional cases imposed sentences of two years or
less (eighteen months). No rape cases were found for which the punishment
was a suspended sentence. Two of these cases in this category involved the
rape of women while they slept. In one the accused pleaded guilty, resulting
in the final eighteen months of his three year sentence being suspended. In
the other case, the accused pleaded not guilty and one year of his three year
sentence was suspended. The final case was identified as highly exceptional
in that the accused had months to live, failing which he would have received
a much higher sentence.
Thus, it would appear that the principle asserted in The People (DPP) v.
Tiernan - that a non-custodial sentence for rape is wholly exceptional –
remains the law. A sentence of less than three years is highly unusual in the
context of rape even where the accused pleaded guilty at an early stage.
Seventeen cases could be seen as within the median under the WD category of
appropriately severe punishments. The sentences ranged between three and
eight years. Similarly to the WD case, the majority (fifteen) imposed sentences
of between five and seven years for rape. These included historic and more
recent cases of child sexual abuse that included rape, and instances where a
degree of violence was inflicted, such as bruising of limbs or pushing. In most
such median cases the accused pleaded guilty although the category included
three pleas of not guilty.
Cases with not guilty pleas did not necessarily impose strikingly different
sentences to cases with similar facts where a guilty plea was entered.
Variability in the factors should be noted in the context of this statement.
While the accused cannot be penalised for contesting the case, he loses the
biggest mitigating factor by not pleading guilty. Sometimes a plea of guilty
will be in the face of very persuasive evidence and this can be taken into
account as well. In some of the detailed analysis which follows, the accused
exhibited apparent remorse which was said to provide strong mitigation.
Care might be exercised in relation to pleas which emphasise remorse and a
query might be placed beside its genuineness where appropriate.
Punishments above the mean ranged from nine to fourteen years. There were
23 cases falling into this bracket. The accused pleaded not guilty in ten cases.
In general, they involved a breach of a position of trust, such as rape of a
daughter or family member, many counts, particular forms of violence,
particular degradation or humiliation, or an analysis of the particular affect
on the victim.
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Thus, the research suggests that where the accused does not plead guilty, i.e.
does not show a realistic attitude or any appropriate insight into the repellent
nature of rape, and/ or inflicts a particular level of violence on the victim, nine
years imprisonment might not be inappropriate. The sentencing decisions
indicate that even where a guilty plea is offered its timing remains crucial: the
later the plea the less mitigation it suggests.
Grooming a young victim tends to result in a more substantial sentence in
accordance with sentencing norms.
Twelve cases ranged from fifteen years to life imprisonment. In six instances
the accused pleaded not guilty. Of the nine cases that did not impose a life
sentence, six involved the rape of child victims. A life sentence was imposed
in three cases - two of which involved very serious child sexual abuse with
multiple victims over a prolonged period. The final case was an egregious
attack and the accused had two previous serious aggravated sexual assault
convictions.
Some importance may be placed on rehabilitating the accused. Cases of life
sentences are analysed in what follows. Some decisions also seem to suggest
that the state of Irish prisons may aggravate the punishment of a prison term.
1.4. Considerable delay rape cases
Rape cases where there has been considerable delay in initiating a prosecution
(ten to thirty years to first complaint) have often been in the more serious
categories under the WD classification. Where the accused, despite pleading
not guilty, has in the interim led a life of work with no offending then some
judges have seen this as potentially providing a degree of evidence of
rehabilitation. In those circumstances the general tendency has been to move
from a higher to a lower category of sentence.
The separate analysis should be consulted for this category.
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2.
Part I: Principles in the WD case

Charleton J. conducted an analysis of sentences imposed for rape

Aim: “to divine both the relevant sentencing principles and the parameters
within which such a sentence can be imposed for the sake of consistency
and predictability”2

Only looked at actual term imposed not periods of suspension.
2.1. General principles from Tiernan and from WD

Rape is an extremely serious offence
o a savage attack on the bodily & psychological integrity of a woman
o it overrides her right to privacy in the most intimate area of human
relationships

Rape is always accompanied by either violence or fraud

Often causes physical harm

May result in pregnancy & transmission of venereal diseases

An early plea of guilty cannot alone constitute such a wholly exceptional
circumstance as to require a non-custodial sentence for rape
o Court shall take guilty plea into account, if appropriate to do so3

Functions of sentencing: punish the offender, protect society & offer the
possibility of rehabilitation

The court is not empowered to engage in retribution or revenge4

The purpose of sentencing is rehabilitation, not vengeance5

“The main purpose of the imposition of punishment is the good of the
State, that is, society generally … Punishment is also imposed as a
deterrent to others from committing similar crimes.” 6
Emphasis added.
Section 29(1) of the Criminal Justice Act 1999.
4 The People (DPP) v. MS [2000] 2 I.R. 592.
5 The People (DPP) v. M [1994] 3 I.R. 306, at p. 317.
6 R. v. Warner [1946] O.R. 808, at p.815.
2
3
5
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2.2. Punishments below the median

No absolute rule that a custodial sentence must be imposed regardless of
the plea7

Normally, rape merits a custodial sentence but the court “must not
deprive itself of the possibility of identifying the exceptional case where a
custodial sentence may not be warranted”8

A non-custodial sentence should be "wholly exceptional” on the Tiernan
principles9
o Charleton J.: the circumstances must be so completely exceptional
as to “allow the court to approach sentencing for an offence of rape
in a way that deviates so completely from the norm established by
the case law.”10
o Where a victim has a forgiving attitude towards the perpetrator this
may be a wholly exceptional circumstance although not
determinative as a crime is an attack on society, not a private wrong
o In England, where the victim firstly consented; then changed her
mind this has been regarded as a wholly exceptional circumstance.
In R. v. Greaves “a good deal of sexual intimacy took place short of
sexual intercourse” between the parties. The appellant began to
have sexual intercourse with the girl who then asked him to stop;
he did not stop; he carried on and the act of sexual intercourse was
completed. That has not been definitively accepted in this
jurisdiction11
2.3. The median range of punishments

Majority of reviewed cases imposed sentences of 5 to 7 years

8 years: a more severe degree of violence by the perpetrator12; a particular
effect on the victim that should be especially noted13; a number of different
counts; relevant previous convictions, e.g. violence of some kind; rape and
serious sexual assault over a number of years against young victims by
The People (DPP) v. R O'D [2000] 4 I.R. 361 at p. 363; The People (DPP) v. McCormack [2000] 4
I.R. 356.
8 The People (DPP) v. NY [2002] 4 I.R. 309.
9 The People (DPP) v. Tiernan [1988] 1 I.R. 250.
10 DPP v. WD [2007] IEHC 310.
11 R. v. Greaves [1999] 1 Cr. App. R.(S) 319.
12 The People (DPP) v. O'N [2007] IECCA 8, (Unreported, Court of Criminal Appeal, 16 th
March, 2007).
13 The People (DPP) v. G (Irish Times, 29th January, 2005).
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family members or friends & often very old cases where the perpetrator
may have led a better life in the intervening years.

6-7 years: attacks on family members14, no remorse15, violence that requires
to be noted as beyond that inherent in the offence, including threats to
kill16

6-7 years: no especial gratuitous violence but early admission & remorse
with the early entry of a plea of guilty are absent

5 years: perpetrator pleads guilty, no additional gratuitous humiliation or
violence beyond those ordinarily involved in the offence
o examples include: both parties underage17; elderly accused18

4½, 4 years & 3 years: strong mitigating factors, e.g. of eight cases
reviewed, only 1 accused pleaded not guilty.
2.4. Punishments beyond the median

Sentences of 9-14 years: examined 22 cases: 5 offences of a single count of
rape; 9 of a single attack that generated more than 1 conviction: e.g. oral
rape, rape & anal rape; others: multiple counts, sometimes over years

9 years: pleaded guilty to a number of counts against child(ren) over many
years19; similar case attracted 12 year sentence20

10 years: 6 victims but only 1 guilty plea to male rape - other counts of
sexual assault and child pornography21; previous conviction & high risk of
reoffending22
The People (DPP) v. JD (Unreported, Central Criminal Court, 29th July, 1997); The People
(DPP) v. S (Irish Times, 6th April, 2005).
15 The People (DPP) v. F (Irish Times, 26th April, 2005).
16 The People (DPP) v. F (Irish Times, 4th April, 2006); The People (DPP) v. C (Irish Times, 25th July,
2006); The People (DPP) v. H (Irish Times, 10th October, 2006) (early guilty plea); People (DPP) v.
B (Irish Times, 11th October, 2005).
17 The People (DPP) v. F (Irish Times, 27th July, 2005); The People (DPP) v. O'C (Irish Times, 9th
May, 2006).
18 The People (DPP) v. F (Irish Times, 28th April, 2006). The case was flagged as unusual by
Charleton J.
19 The People (DPP) v. Anon (Irish Times, 14th November, 2006); The People (DPP) v. S (Irish
Times, 17th January, 2006).
14
The People (DPP) v. W.G. [2004] IECCA 43, (Unreported, Court of Criminal Appeal, 1 st
November, 2004).
21 The People (DPP) v. G.McC [2003] 3 I.R. 609- originally imposed life sentence for rapereduced to ten years. “Difficult to see this case fitting in with any emerging pattern of
sentencing bands.” (at p.325.)
22 The People (DPP) v. H (Irish Times, 28th October, 2006).
20
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
10 years: can be appropriate for an individual instance of rape but appears
to be unusual, even after not guilty plea, unless there are circumstances of
unusual violence or pre-meditation23

12 years: previous conviction for a sexual offence is an aggravating factor
resulting in a more severe sentence24

The degree to which the perpetrator chose to aggravatedly violate &
humiliate the victim can bring the appropriate sentence into the upper end
of the band25
2.5. Most severe punishments

22 cases of 15 years - life imprisonment: 9 of a single incident lasting a
considerable amount of hours, or nearly that, in most cases. 2 of 7 cases
concerned gang rape, and the rest involved multiple incidents or multiple
victims,26 or both

A gang rape is regarded as particularly serious: sentence of 21 years
reduced to 17 years in the Tiernan case 27; sentence of 20 years28

Characteristics: The nature of the victim: very young29; very old30, the
affect of the attack on her and the especial nature of the violence31 or
degradation32

Life imprisonment may be imposed to protect the community33

Aggravated sexual assault, where the accused had previous convictions,
including 10 years for rape34
The People (DPP) v. D (Irish Times, 3rd February, 2004) and The People (DPP) v. M (Irish Times,
10th October, 2006).
23
The People (DPP) v. M (Unreported, Court of Criminal Appeal, 29th November, 1999); The
People (DPP) v. D (Irish Times, 27th February, 2007) (pleaded not guilty).
25 The People (DPP) v. M (Irish Times, 15th February, 2006); The People (DPP) v. D (Irish Times, 9th
May, 2006).
26 The People (DPP) v. A (Irish Times, 22nd December, 2004).
27 The People (DPP) v. T [1988] 1 I.R. 250.
28 The People (DPP) v. B (Irish Times, 17th October, 2006).
29 The People (DPP) v. Anonymous (Irish Times, 25th March, 2006); The People (DPP) v. D. [2004]
IECCA 8, (Unreported, Court of Criminal Appeal, 21 st May, 2004); The People (DPP) v. R. McC.
[2005] IECCA 71, (Unreported, Court of Criminal Appeal, 12th May, 2005).
30 The People (DPP) v. C (Irish Times, 13th March, 2007).
31 The People (DPP) v. C (Irish Times, 27th April, 2006); The People (DPP) v. McG (Irish Times, 19th
July, 2005); The People (DPP) v. SD (Irish Times, 14th February, 2006).
32 The People (DPP) v. B (Irish Times, 6th April, 2005).
33 The People (DPP) v. K (Irish Times, 23rd January, 2007).
34 Ibid.
24
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
Abuse of trust: involving schoolteachers, persons in other positions of
authority & dominant family members

The pursuit of a campaign of rape, e.g. against prostitutes.35
2.6. Aggravating factors
The following factors were identified as potentially relevant to rape and also to
sexual assault:
 Harm to the victim that requires an especial response

Especial violence, more than usual humiliation, subjecting the victim to
additional & gratuitous sexual perversions

Abusing a position of trust: a person in authority, misusing a dominant
position within a family, tricking a victim into a position of vulnerability
or abusing a disparity in ages between perpetrator or victims

Coldly engaging in a campaign of rape shows a particularly remorseless
attitude which is not necessarily mitigated by later claims of repentance

Participating in a gang rape

Death threats and implements of violence for the purpose of wielding
authority or sexual perversion

Attacking the very young, the very old or the very vulnerable
In addition some factors from the Law Reform Commission “Consultation
Paper on Sentencing 1993” may, or may not, complement the above:

premeditation or planning;

offending as part of a group organised for crime;

offending for profit or remuneration;

exploitation of a weak or defenceless victim;

abuse or exploitation of a position of confidence or trust;

inducing a weaker or younger person to participate in the commission of
the offence;

threatening to use or actually using violence or a weapon;

excessive cruelty;

knowledge that the victim's access to justice may be impeded;

participation in a campaign of offences on multiple victims or of multiple
35
9
R. v. Billam [1986] 1 W.L.R. 349; The People (DPP) v. K (Irish Times, 7th April, 2005).
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offences;

causing substantial economic loss for the victim;

causing, threatening or risking death or serious injury;

committing the offence for pleasure or excitement;

acting as a ringleader in the commission of an offence;

offence by a law enforcement officer;

offending while under the influence of alcohol or drugs;

offending against a law enforcement officer.
2.7. Possible mitigating factors
The following were identified as mitigating factors. These may be relevant
to rape and sexual assault. In addition, certain factors from the Law Reform
Commission’s consultation paper were suggested as potentially relevant.
However, many do not have application to sexual offences and should be
approached with caution.
 Strongest factor commonly present: an early admission of guilt, the later
the admission of guilt and realisation of the harm of sexual violence: on
arraignment, on the day of the trial, or during the trial & after the crossexamination of the victim, the less the effect on a sentence

Where an offender is very young, is mentally ill or has been subjected to
sexual indignities which leave him with a disorder, these factors can be
taken into account while bearing in mind that the purpose of the criminal
law is to protect the community through the rehabilitation and
punishment of offenders

The offender's background & previous convictions
Mitigating factors from the Law Reform Commission Consultation Paper:
These must be approached with great caution as the factors are included for
completeness of general analysis of sentencing principles and many have
no application to sexual violence cases at all. This is the suggested general
approach of the Law Reform discussion document.

duress;

provocation; [noted by Charleton J. to have no application in this offence]

impulse;

reduced mental capacity;
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
strong temptation [note the comment on the non-application of
provocation];

offender motivated by strong human sympathy;

offender very young or very old;

offender played only a minor role in the commission of the offence;
[Charleton J.: Since rape is very often an individual offence, it can rarely be
the case that a participant has played only a small part]

no serious injury resulted/ was intended;

offender made voluntary attempts to alleviate the effects of the offence;

excusing circumstances which, although not constituting a defence to
liability, tend to justify or excuse the offence;

offender shows no sustained motivation to break the law; ignorance of the
law;

Mistake of fact.
2.8. Not mitigating factors
The decisions analysed make clear that the following are not mitigation:
 Kissing a man, wearing revealing clothing, taking a lift in a car, or
accepting an invitation to a flat for refreshments

11
The conduct of the victim is not relevant. An exception in possible
mitigation may be where there has been consent to sexual intercourse
which is withdrawn during the act, but this has not been accepted in this
jurisdiction.
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3.
Part II: Rape sentencing since 2007
We now examine sentences of the Court of Criminal Appeal since the WD
decision & newspaper reports, in some cases supported by digital audio
recording analysis, of Central Criminal Court cases between November 2010
and November 2012. Considerable delay cases are dealt with in section 3.5.
This may be regarded as a special category.
3.1. Punishments below the median
DPP v. CM [18 mth sentence]

Pleaded guilty to raping a woman at a house party

3 years in prison (final 18 months suspended)

Victim awoke to accused having sex with her

Offence considered according to the report to be at the lower end

Previous good character & genuine remorse

Drunk & had smoked cannabis.36
DPP v. DK [2 yr sentence]

Raped woman while she slept

Pleaded not guilty

3 year sentence (suspended final year)

The judge considered the hopeful note and positive attitude which the
victim communicated to the court

Not an exceptional case which required non-custodial sentence
particularly as accused did not accept guilt

Mitigation: apart from road traffic convictions a clean record, impeccable
work record, highly thought of - thus suspended final year.37
3.2. The median range of punishments
DPP v. Anon [3 yr sentence]

36
37
15 year old boy raped 14 year old girl
Irish Times, 31 January 2012. Listened to sentencing hearing on the DAR.
Irish Times, 14 May 2011. Listened to sentencing hearing on the DAR.
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
6 year sentence (final 3 years suspended)

No previous convictions

Provisions of the Children Act 2001 could not save him from prison

Both parties drunk

Mitigation: lack of appropriate adult supervision & genuine remorse

Aggravating: effect on the victim; accused had taken drugs & alcohol.38
DPP v. HZY [5 yr sentence]

Dragged woman up a lane & raped her

Pleaded guilty at first available opportunity

Mitigation: previous good character, impressive academic achievements,
in good standing & family highly supportive

Accused had rarely touched alcohol in his native country

Took an unaccustomed amount of alcohol; this affords no defence or
mitigation

8 year sentence (3 years suspended).39
DPP v. SF [6 yr sentence]

Accused raped a woman he had met the day before

Pleaded guilty

Raped victim in her own home

Took into account previous convictions & guilty plea

9 year sentence with final 3 years suspended.40
DPP v. JR [6 yr sentence]

Accused raped his stepdaughter aged 12 years

Crime was an abuse of trust

Accused was at a low risk of reoffending & remorseful.41
Irish Times, 23 October 2012. Listened to sentencing hearing on the DAR.
Irish Times, 22 May 2012. Listened to DAR.
40 Irish Times, 12 April 2011.
41 Irish Times, 19 January 2012.
38
39
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DPP v. JN [6 yrs & 2 mths sentence]

Pleaded not guilty to raping & sexually assaulting a woman. 42

Met the victim at a restaurant & agreed to go for a drink at an apartment

Pushed victim onto the bed and raped her

Denied under cross-examination that he raped the girl, said he did not
know how his semen got on her vaginal area or how she got bruises on
her arms.43
The People (DPP) v. CF [2011] IECCC 5 [6 yr sentence]

Accused collected victim in his car & raped her following a struggle
resulting in considerable bruising

Irish prisons are seriously overcrowded, aggravating the punitive aspect
of a prison sentence

The principle of proportionality must be reconciled with the aim of
rehabilitation

The prospect of rehabilitating the accused must be considered

Aggravating factors: injuries & detention of victim in a car

Mitigation: remorseful & offered a sincere apology; dysfunctional
childhood, parents’ excessive drinking & sexual abuse on him; willingness
to engage in counselling & rehabilitation; degree of cooperation

Placing the accused on the Sex Offender’s Register is a real punishment
which will impact his life

8 years imprisonment for rape- mitigated to 6 years.44
The People (DPP) v. K [2007] IECCA 119 [At trial 3 yr suspended sentence- on
appeal increased to 7 yr sentence]

Trial judge imposed sentence of 3 years suspended subject to good
behaviour for 5 years- also placed on the Sex Offender’s Register

Pleaded not guilty

Had no recollection due to alcohol & drugs
Irish Times, 15 March 2011.
Irish Examiner, 14 February 2011.
44 (Unreported, Central Criminal Court, 28 th October, 2011).
42
43
14
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Entered victim’s bedroom who woke up to find a man in her bed who she
thought was her partner, then woke to him having sex with her, realised it
was the accused who was known to her, pushed him off & screamed at
him to leave

Aggravation: entered victim’s bedroom - violating the security she should
have felt, her three children were in bed, severe negative consequences for
victim & her children, traumatised & driven from their neighbourhood

Trial judge should have followed the established principle that a custodial
sentence should be imposed

CCA satisfied sentence unduly lenient despite mitigation

Mitigation: accused’s age of only 18½ years, no previous convictions & the
shame of the offence which he will carry forever

Starting point of such a case must be a substantial custodial sentence45 - no
circumstances here to give rise to a suspended sentence

Although rape by definition is a grave physical assault on the victim the
case was not aggravated by additional/ vicious physical assaults

Imposed a 10 year sentence with 3 years suspended to encourage
rehabilitation

Subject to post-release supervision.46
The People (DPP) v. VV [2009] IECCA 14 [10 yr sentence- on appeal 3 yrs
thereof suspended]

Pleaded not guilty

Applicant forced victim onto the bed, struck her twice on the face,
stripped and raped her despite strong resistance

Bruising to the wrists but not the usual degree of violence

Overall sense of menace & threats

Victim was extremely vulnerable: a non-English speaking woman

Victim did not want accused imprisoned for an extended period of time

Applicant was a non-national from a different ethnic & cultural
background creating special difficulties & hardship

Court decided to suspend a portion of the sentence in light of this.47
The People (DPP) v. Tiernan [1988] I.R. 250.
[2007] 3 I.R. 177.
47 (Unreported, Court of Criminal Appeal, 9 th February, 2009).
45
46
15
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
DPP v. Anon [7 yr sentence]

Pleaded guilty to raping his former girlfriend

10 year sentence with 3 years suspended

5 years post release supervision.48
DPP v. KOMcD [7 yr sentence]

Pleaded not guilty to multiple counts of rape & sexual assault against girls
aged 8 & 9

Breach of trust not so great as others as they were not entrusted to accused

Clean record, no previous convictions, reintegration into life will be
difficult due to publicity

No post release supervision

At the upper end of the scale of seriousness

Aggravation: seriousness, young age, depraved nature, frequency of
attacks & simultaneous abuse. 49
DPP v. JR [7 yr sentence increased to 10yrs with 3 yrs suspended]

CCA review of sentence at the request of the DPP

Taxi driver raped 18 year old woman

Pleaded not guilty to rape & sexual assault.50

No previous convictions with long work record

Had “very discernable” ill health as an amputee & diabetic.51
DPP v. Anon [8 yr sentence]

Raped & supplied 13 year old daughter with alcohol

Aggravating: breach of trust, age of girl, multiple offences, effect on the
victim & grooming while remaining sober
Irish Times, 7 December 2010.
Irish Times, 10 December 2011.
50 Irish Times, 10 July 2012.
51 Breakingnews.ie, 9 July 2012.
48
49
16
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Pleaded guilty

Sentenced to 12 years (suspended final 4 years)

Mitigation: guilty plea, early admissions, strong work ethic

Ordered 5 years post release supervision.52
3.3. Punishments beyond the median
DPP v. Anon [9 yr sentence]

Pleaded guilty on 3rd day of trial after victim gave evidence but before
cross examination

Consumption of drugs & drink offered no mitigation

Accused raped his friend after she refused to kiss him

Suspended final 2 years

5 years post release supervision.53
DPP v. NS [9 yr sentence]

Raped 13 year old girl & plied her with alcohol

Pleaded guilty to sexual assault but not guilty to rape. 54
DPP v. Anon [9 yr sentence]

Man raped & sexually assaulted his teenage niece

Pleaded not guilty to 14 counts of sexual assault & rape

Aggravation: grave breach of trust & vulnerability of victim. 55
DPP v. RS [9 yr sentence]

Pleaded guilty to raping & trying to strangle a minor

12 years (3 years suspended). 56
DPP v. MS [9 yr sentence & 9 yr post release supervision- upheld by CCA]
Irish Times, 9 October 2012. Listened to on DAR.
Irish Times, 11 April 2011.
54 Irish Times, 14 October 2011.
55 Irish Times, 12 April 2011.
56 Irish Times, 1 August 2012. Listened to sentencing hearing on DAR.
52
53
17
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Counts included false imprisonment & rape

Pleaded guilty to rape

Raped prostitute and threatened her with violence

Trial judge attached significant importance to DPP v. M in which a
sentence of 12 years was substituted for a 9 year sentence. The accused in
that case was convicted of a number of counts of sexual assault and false
imprisonment.57

The accused’s dysfunctional history cannot of itself differentiate the case sound public policy reasons why minimal importance can be attached to
mitigating arguments based on drink or drugs.

Concrete evidence of genuine attempts at self-rehabilitation. 58
The People (DPP) v. GK [2012] IECCA 73 [at trial 7 yr sentence- on appeal
increased to 9 ½ yr sentence]

Accused followed & attacked victim, dragging her into church grounds,
threatening; vaginally, orally & anally raping her.

Assessed as high risk of reoffending but difficult to place considerable
reliance on the prediction of future behaviour

Significant impact on the victim

At trial sentenced to 8 years (final year suspended)

On appeal increased to 10 years (final 6 months suspended)

Trial judge erred in placing the case at the lowest end of the scale of serious
offences & was unduly lenient

Mitigation: very limited credit available for pleading very late in the day
in the face of strong evidence; victim had prepared to give evidence

Aggravation: followed the victim, serious violence, physical domination of
a slight woman by a stronger man, threat to kill, degrading nature, initial
denial and assertion of consent warranted 10-12 year sentence.59
DPP v. Anon [10 yr sentence]

Raped & falsely imprisoned a middle aged woman

Judge found no mitigating factors
(Unreported, Court of Criminal Appeal, 19th November, 1999).
(Unreported, Court of Criminal Appeal, 14th February, 2008).
59 (Unreported, Court of Criminal Appeal, 25 th July, 2012).
57
58
18
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Dysfunctional upbringing & drug problem offered no mitigation

At the upper end of the scale.60
The People (DPP) v. IH [2007] IECCA 29 [at trial sentenced to 10 yrs for rape &
life for manslaughter- amended to 12 yrs each concurrently]

Original conviction quashed & retrial order

Maintained not guilty plea to rape but guilty to manslaughter

Court noted a number of recent cases had upheld life sentences61 some
involved multiple victims & children but none where the victim was killed

Per The People (DPP) v. D [2007] IECCA 362 it is wrong and an error in
principle for a trial court to hold convictions and sentences imposed
subsequent to the date of the main offences but prior to sentencing for the
main offences "can be effectively ignored", particularly where they
illustrate a propensity or relate to similar crimes. Must be taken into
account - at least to some degree

Aggravated by the dangerous manner in which the rape was perpetrated
(restraining victim in a headlock)

The interconnection of the rape & manslaughter offences demanded a
severe sentence- however, applicant should be left with some hope of
rehabilitation & re-entry into society

Applicant young age; on the other hand he maintained denials of rape. 63
The People (DPP) v. M O’B [2009] IECCA 33 [10 yr sentence & separate
consecutive 3 yr sentence- half of 3 yr sentence suspended on appeal]

20 counts including sexual assault & rape

Sentenced to 14 years with last 4 suspended

Subsequently sentenced to 3 years for sexual assaults consecutive to 14
years

CCA held that proportionality was “lost sight of”.64
Irish Times, 8th July 2012.
The People (DPP) v. D [2005] IECCA 71, (Unreported, Court of Criminal Appeal, 21st May,
2004), The People (DPP) v. R McC [2005] IECCA 71, (Unreported, Court of Criminal Appeal,
12th May, 2005), The People (DPP) v. A (Court of Criminal Appeal, 11th January, 2005) and The
People (DPP) v. K (Court of Criminal Appeal, 7th April, 2005).
62 (Unreported, Court of Criminal Appeal, 2 nd February, 2007)
63 [2007] 3 I.R. 568.
64 (Unreported, Court of Criminal Appeal, 26th March, 2009).
60
61
19
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
DPP v. Anon [12 yr sentence & 10 yrs post-release supervision]

Father pleaded not guilty to rape of daughter aged 8 years at the time. 65
DPP v. Anon [12 yr sentence]

Pleaded guilty to 2 counts of rape, aggravated sexual assault & false
imprisonment

Accused handcuffed the victim & repeatedly raped her for 2-3 hrs

Threatened victim with a knife & forced her to wear a dog collar

Catastrophic effect on victim

Took into account the humiliation, threats & the fact that he took
medication to aid the rape

7 years post-release supervision order

15 years (final 3 years suspended)66
DPP v. Anon [12 yr sentence consecutive to earlier sentence]

Pleaded guilty to grooming, raping & sexually abusing his daughter

Abuse between ages of 8 and 15 years.67
DPP v. Anon [12 yr sentence]

Daily sexual abuse of daughter aged 9 for 4 years

Mitigation: wrong for someone to die in prison, clean record & devoted his
life to work

By pleading not guilty had denied himself the biggest mitigation

Aggravating factors: breach of trust, abuse occurred within the home, the
effect on her, her age, frequency, length of offences, absence of remorse &
predatory nature of the offence

15 year sentence (final 3 years suspended).68
Irish Times, 12 July 2011.
Irish Times, 26 July 2011.
67 Irish Times, 17 May 2011.
68 Irish Times, 27 May 2011.
65
66
20
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
DPP v. Anon [12 yr sentence]

Groomed & raped 5 of his granddaughters over a 19 year period

Pleaded guilty to 45 sample counts

Sentenced to 15 years (final 3 years suspended).69
DPP v. Anon [12½ yr sentence]

Previous manslaughter conviction in England

Raped his mother

Accepted verdict but claimed he believed she was consenting

At the highest end of the scale: she was 66 & his mother

Sentenced to 15 years (suspended last 2 ½ years)

Few mitigating factors: difficult childhood, reasonable work history &
alcohol problems. 70
DPP v. PS [2009] IECCA 1 [life sentence- appeal allowed by CCA imposing 12
½ yr sentence]

11 sample counts: 2 of rape

Applicant expressed remorse & made full admissions

45 years old at time of the application

Was abused as a child

Suffered from distorted perception & confusion around his sexuality

Trial judge had regard to WD case & held that accused’s total failure to
respond to previous sentences rendered this a life sentence

Aggravating factors: nature of the offences- exceptional depravity, number
& frequency over a short period, force, breach of trust

Mitigation: early guilty plea, co-operation with gardaí & early genuine
remorse

Account also needed of previous record of offending which indicates he
will represent a continuing danger to the public.

CCA held where an appropriate determinate sentence can be devised, it is
preferable to an indeterminate sentence
69
70
Irish Times, 30 November 2010.
Irish Times, 2 October 2012.
21
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Suspended 2 ½ years of 15 year sentence on condition he attend
counselling, comply with directions of the Probation Service & 10 years
post release supervision.71
DPP v. MF [14 yr sentence]

Raped & sexually assaulted 4 boys

Pleaded guilty to 38 sample charges

18 year sentence (final 4 years suspended)

Abused weekly over a period of four years

Worked as school caretaker

Groomed the boys: supplied alcohol & made them watch pornography

Pleaded guilty to sexual assault in 2002 but kept working in the school

Mitigation: guilty plea & genuine remorse

Aggravation: abuse of position & systematic grooming. 72
3.4. Most severe punishments
DPP v. CG [2011] IECCA 62 [life imprisonment for rape, 5 years each count of
sexual assault to run concurrently- CCA substituted for 15 yr sentence]

11 counts: 2 of rape

18 previous convictions including more serious offences

CCA held the case was in the middle tending to the higher part of the spectrum
- did not exhibit the level of violence/ number of counts in certain cases

Offending while extremely serious was not in the exceptional category of
seriousness as to warrant the imposition of a life sentence

Did not explain how the case fell into the exceptional category of cases
where a mandatory life sentence was warranted

Aggravating factors: youth of complainant, quasi-parental relationship,
disparity of ages, length of time over which was committed, number,
severe trauma on complainant & very serious list of previous convictions

No mitigation: did not plead guilty, express remorse or propose
rehabilitation.73
(Unreported, Court of Criminal Appeal, 28th January, 2009).
Irish Times, 19 July 2011.
73(Unreported, Court of Criminal Appeal, 10 th July, 2011).
71
72
22
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
DPP v. Anon [15 yr sentence]

Accused raped & sexually assaulted his daughter

Pleaded not guilty & denied offences

Child aged 8 years

Accused had no significant criminal record: summary offences for public
order & road traffic disregarded as not on the same scale

Accused gave child alcohol & cigarettes, showed her pornography

Fell into context of grooming (1 year concurrent sentence)

Child had been severely impacted: was confident, outgoing- now
depressed

Fear how the child will handle her teenage years

At upper level of seriousness

Lack of mitigation

Aggravation: age of child & breach of trust

Not a case of one transaction: a series of different offences on different
occasions with different degrees of seriousness

Must look at the cumulative effect of the sentence & have regard to the
principle of totality

Also need to keep “light at the end of the tunnel” for accused

15 years for rape- final 5 years suspended & consecutive sentences for 2
separate sexual assaults giving 15 years total

No reasonable prospect of rehabilitation for a person guilty of sexual
crimes until he accepts his guilt.74
DPP v. JB [two 15 yr sentences for rape]

Pleaded guilty to murdering & raping a 12 year old schoolgirl

Life imprisonment for murder concurrently with rape sentences. 75
DPP v. Anon [15 yr sentence]

Abused child of a woman he met on the internet

Pleaded guilty
74
75
Irish Times, 6 November 2012. Listened to sentencing hearing on DAR.
Irish Times, 13 December 2011.
23
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Showed her child pornography & made her recreate scenes

Child aged less than 8 years.76
DPP v. PJ [15 yr sentence]

Previous conviction for attempted rape in another country

Pleaded not guilty to 12 counts during an attack on a woman

Aggravating factors: gratified himself in an abnormal manner by wearing
women’s clothing during the assault

No mitigation except that prison would be more difficult as a nonnational.77
DPP v. Anon [15 yr sentence]

Repeatedly raped & abused his daughter aged 13- 15 years

Pleaded not guilty & showed no remorse

No mitigation

No suggestion of potential for rehabilitation but cannot totally exclude the
idea that a person can be reformed after many years in custody

Deterrence of no materiality

Previous convictions

Concurrent sentence with existing sentences backdated from that dayachieving proportionality.78
DPP v. CK [15 yr sentence]

Accused raped aunt in her home after threatening to kill her

Pleaded not guilty

Noted the inherent gravity of the offence, effect on the victim, breach of
trust, use of a knife & the conduct of his defence. 79
The People (DPP) v. D McC [2010] IECCA 50 [varying consecutive sentences
giving 20 yr sentence - CCA suspended final 2 yrs thereof]

Guilty plea; voluntarily went to gardaí
Irish Times, 14 February 2012.
Irish Times, 29 June 2011.
78 Irish Times, 27 March 2012. Also listened to sentencing on D.A.R.
79 Irish Times, 30 July 2011.
76
77
24
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

A guilty plea at the earliest stage is to be given considerable weight as
victim knows early on that he/ she will not have to give evidence

Guilty plea did not happen for 18 months so while it had to be given some
credence as it saved the victim giving evidence and the court’s time, it
does not carry the weight of a plea given at a very early stage

Attack was a premeditated event

Two separate incidents: broke into women’s homes and raped them

Attacked the second victim’s boyfriend & threatened to kill first victim

In light of the possibility of rehabilitation last 2 years of sentence should be
suspended.80
The People (DPP) v. DP [2009] IECCA 149 [appealed life sentence- upheld by
CCA]

Pleaded guilty at a very late stage two weeks before the trial date

Possibility of giving evidence hanging over a victim is traumatising

Case against accused was clear & strong

2 extremely serious aggravated sexual assault convictions

Attacked & raped girl in the toilets of Supermacs

Life imprisonment does not have to be reserved for the worst imaginable
case- available for cases at the top end of seriousness of these offences. 81
DPP v. Anon [life sentence]

Accused repeatedly raped & assaulted four daughters over 18 yrs

At the top end of the range of offences given the multiplicity of the crimes
& their heinousness

Drinking & dysfunctional background of accused offered little/ no
mitigation

Already serving 14 years for raping another daughter

Pleaded guilty of 14 sample counts after the jury had been empanelled.82
(Unreported, Court of Criminal Appeal, 19th May, 2010).
(Unreported, Court of Criminal Appeal, 17th December, 2009).
82 Irish Times, 9 December 2011.
80
81
25
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
3.5. Considerable delay rape cases
In DPP v. P.H. (examined in greater detail below) the following approach
was suggested in historic rape cases where there has been considerable
delay in bringing the accused to trial as a result of a delayed complaint:
 Analyse the actual circumstances of the case as if they occurred recently &
had been brought to court without delay, taking into account ordinary
factors i.e. the effect on the victim, depravity & time period of offences

Examine mitigation & aggravation: guilty pleas, background, abuses of
trust, predatory behaviour & multiple victims

Look at the subsequent life circumstances of the accused: evidence of
genuine repentance, leading a good life, meaningful ways to make it up to
victims

Goals of sentencing: punishment to ensure social stability, deterrence &
rehabilitation

Regard to age & health of offender: illness renders prison a special burden

Separate abuses require separate analysis and charges
3.5.1. Punishments below the median
DPP v. Anon [18 mth sentence]

Sexually abused 5 of his daughters throughout their childhood (1977-1990)

Pleaded guilty

17 years since last offence

No previous convictions

Only had a few months to live (suffering from terminal illness)

DPP stated offences at the upper scale

Judge said he would usually avoid sentencing someone to die in prison
but the offences were so grave that a custodial sentence had to be imposed

Detention would cause Prison Service great difficulty but could & would
cope with it

Only a fraction of the sentence that would have been imposed.83
83
Irish Times, 19 June 2012.
26
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
3.5.2. The median range of punishments
The People (D.P.P) v. M O’R [5 yr sentence for 3 counts of rape; CCA declined
amending the sentence]
 Court factored the “antiquity of these offences” as penalties might have
been lesser in the 1970s and 1980s84

Very late guilty plea to 18 counts of indecent assault & 3 counts of rape

Victims were young nieces of the accused

Aggravation: at the utmost serious; “a gigantic breach of trust” & mainly
very young girls aged between 9 & 12 years

“Highly unusual case” but CCA decided not to interfere with the sentence
as no substantial departure from what was appropriate

Mitigation: respondent displayed intellectual shortcomings & given his
age he posed virtually no risk

Sentenced to 10 years with 5 years suspended

Held suspended sentences built in safeguards to guard against reoffending.85
DPP v. FM [6 yr sentence]

Raped & groomed a teenage boxer he had trained (1998)

Pleaded guilty

Already serving sentences for rape of 7 other young boys

Judge sure accused would reoffend but could not take this into account as
he felt it would be overturned

Took into account the gravity of the offences & their effect

Ordered no contact with the victim or sports clubs

Sentenced to 8 years (2 years suspended)

18 months post release supervision.86
DPP v. RM [6 yr sentence]

Raped & sexually assaulted his daughter for over a decade (1975- 1988)

Pleaded guilty
Following The People (DPP) v JT (Unreported, CCA, 6th November, 1996).
(Unreported, Court of Criminal Appeal, 20th October, 2008).
86 Irish Times, 18 June 2012.
84
85
27
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Took into account the inherent gravity of the offence

12 year sentence (final 6 years suspended)

Aggravation: breach of trust, protracted period over which the offences
extended, age of victim & grooming

Mitigation: previous good character, in particular good character in 23
years since offences ceased, work history, cooperation & candour in the
course of the investigation& that the sentence would have been long
served if the girl had gone to the gardaí after disclosure to her mother.87
DPP v. JR [11 yr sentence reduced to 6 yr sentence]

Raped & indecently assaulted babysitter 30 years previously

Pleaded not guilty

Began when she was aged 7 years

7 year sentence with 1 year suspended.88
The People (DPP) v. PH [2007] [7 yr sentence, probation 36 months following
release & registered as a sex offender]

4 counts of rape & 4 counts of indecent assault on stepdaughter

Occurred 20 years previously (1980- 1986)

Abuse began when child was aged 8 years

Lasted for 7 years

Had not reoffended in 10 years

Pleaded not guilty and blamed crimes on a dead uncle- thus not entitled to
a discount in his sentence as no remorse or sign of rehabilitation

Cannot be indifferent to the fact that the accused would have been given a
significantly more lenient sentence had he had an expeditious trial

Cannot impose the sentence he might have received in 1986- instead
regard to signs of remorse, the nature of the offending, the impact on the
victim & factors since offending such as absence of reoffending, work,
good conduct & devoting life to others

Purpose of sentencing is to appropriately punish the offender
87
88
Irish Times, 13 March 2012. Listened to sentencing hearing on D.A.R.
Irish Times, 31 May 2011.
28
Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Victims cannot determine an appropriate sentence as a crime is an attack
on society too

Ordinary sentences in historic cases where the accused contested multiple
charges of rape & sexual assault on young persons in a position of trust: 79 years

Serious sentences: Pleas of guilty on multiple counts of rape- 15 years

Chance of redemption & hope should be considered for every offender

Offender had little education and ill health

Now had a supportive partner with health problems who would have
difficulties visiting, no further charges or offending the last 20 years

Victim suffered physical & psychological trauma.89
3.5.3. Punishments beyond the median
DPP v. HD [10 yr sentence]

Repeated abused & raped his daughter over 10 years (1982- 1992)

Pleaded guilty

Aggravation: Breach of trust, gravity, effect on victim, multiplicity,
duration; grooming & escalating nature of the offences

Mitigation: guilty plea, clean record, remorse & had worked all his life

Sentenced to 15 years (suspended last 5 years)

Registered as a sex offender & 7 years post-release supervision.90
DPP v. Anon [10 yr sentence]

Repeatedly raped girl aged 10 (2001- 2002)

Pleaded not guilty to rape & sexual abuse

Did not accept jury decision- showed no remorse

Offences at the upper end of the scale. 91
DPP v. Anon [12 yr sentence]

Raped & sexually abused daughter throughout her childhood (1993-1998)
(Unreported, Court of Criminal Appeal, 15th October, 2007).
Irish Times, 30 July 2011.
91 Irish Times, 29 November 2011.
89
90
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Recent rape sentencing analysis: the WD case & beyond

Pleaded guilty to 4 counts

18 months post release supervision

Aggravation: breach of trust, age of victim, long period

Mitigation: guilty plea.92
DPP v. S O’N [12 yr sentence]

Pleaded guilty to offences over a 35 year period (1965- 2000)

Raped & sexually abused 3 children from his extended family

Aggravation: age of victims, age gap, breach of trust, no. of victims &
offences

Mitigation: guilty plea, clean record & full admissions.93

DPP v. Anon [concurrent sentences totalling 14 yr sentence]

Father sexually abused daughter for over 10 years (1986- 2000)

Multiple counts of buggery, indecent assault & rape

Showed no remorse. 94
DPP v. Anon [14 yr sentence]

Raped & sexually abused daughters over 16 year period (1980s- 90s)

Pleaded guilty to 16 sample counts

Mitigation: man’s age & health difficulties.95
3.5.4. Most severe punishments
The People (DPP) v. MF [2010] IECCA 68 [20 yr sentence imposed at trialquashed and restructured]

Pleaded not guilty (1970s- 80s)

Convicted on 31 counts of child sexual abuse including rape

3 victims aged between 4 & 6 years when first abused

Accused assessed as posing a high risk of reoffending
Irish Times, 21 March 2012.
Irish Times, 1 May 2012.
94 Irish Times, 14 December 2010.
95 Irish Times, 21 December 2010.
92
93
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Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Now middle aged - sentence would be heavier now than in the 1980s

Had been adversely affected by public knowledge of the case & lost his job

At trial imposed consecutive sentences so as to not be seen to be
suggesting that any of the victims had suffered more than the others

Imposed 8 year sentence for rape of 1st victim, 2 years for indecent assault
(concurrently); 8 years 2nd victim consecutively & 2 years indecent assault
(concurrently); 4 years for rape of 3rd to run consecutively & 4 years for
other indecent assaults to run concurrently - Total sentence 20 years

Consecutive sentences should be used sparingly - but this does not mean
they are prohibited or exceptional

Not imposed as a matter of course where there are multiple offences as
classically would be too severe in light of the accused’s culpability &
would ignore the reality of the offence

To do otherwise however would ignore the truth of the crimes and add
insult to injury

Consecutive sentences carry a particular obligation to ensure the totality
principle

Court must take account of the overall impact of the sentence, the moral
blameworthiness of the accused and the prospect of rehabilitation

Virtually no mitigation

Preferable to restructure the sentence: 8 years 1st victim increased to 10
years & 4 year sentence for sexual assault reduced to 2 years.96
The People (DPP) v R.McC [life imprisonment affirmed by CCA- upheld by SC]

A guilty plea is a mitigating circumstance that normally attracts some
reduction of sentence, depending on its timing

“Any sentencing court should conduct a systematic analysis of the facts of
the case, assess the gravity of the offence, the point on the spectrum at
which the particular offence or offences may lie, the circumstances and
character of the offender & the mitigating factors to be taken into account:all with a view to arriving at a sentence which is both fair and
proportionate”97

The basis for the sentence imposed should be both apparent and consistent
with these principles
(Unreported, Court of Criminal Appeal, 1 st July, 2010).
97 [2008] I.R. 92, at p. 104.
96
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Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond

Section 29 of the Criminal Justice Act 1999 did not substantially repeal
well established jurisprudence on sentencing nor did the subsection
require courts to depart from normal sentencing procedures

Maximum sentence may be warranted in certain cases notwithstanding a
guilty plea

Section 29 enables a court to impose a max sentence in “rare and
exceptional cases”

Court is not precluded from doing so but must identify exceptional
circumstances in such a way that makes it clear why the max sentence is
warranted

The CCC felt that determinate consecutive sentences would virtually
preclude a role for the parole board - held that lengthy concurrent but
determinate sentences provide a more tangible mechanism for granting
credit for a guilty pleas & other mitigation

Satisfied that the horrific nature of the rapes, the prolonged period during
which the campaign of offences took place, that there were multiple
victims of tender years, that victims were daughters/ nieces of the two
accused- justified categorisation among the worst offences. 98
3.6. Mitigating & aggravating factors
This table notes any additional factors that were mentioned in rape cases
since the Tiernan and WD decisions. Factors already outlined in 1.6. & 1.7.
continue to apply, if applicable, but are not replicated here.
MITIGATION
AGGRAVATION
POSSIBLY NOT
MITIGATION
Genuine remorse
Disparity of ages
Consumption of drugs
& drink
Impeccable work
record/ strong work
ethic/ devoted life to
work/ reasonable work
history
Serious list of previous
convictions
Dysfunctional
upbringing
Lack of appropriate
adult supervision
(accused was a child)
Length of time over
which abuse was
committed
Maintaining denials of
rape
98
[2008] I.R. 92.
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Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012
Recent rape sentencing analysis: the WD case & beyond
Reputation
Number of counts
Likely reoffending
Antiquity of offences
Wearing women’s
clothing during the
attack
Drug problem
Intellectual
shortcomings
Taking drugs & alcohol
Age resulting in
virtually no risk
[systematic] grooming
Supportive partner who
would have difficulties
visiting prison
Entering victim’s
bedroom/ raping her in
her own bed/ home
No further charges or
offending for long
period
Victim being driven out
of her neighbourhood
Low risk of reoffending
Children nearby
Alcohol problems
Severe negative
consequences on
children of victim
Non-national from a
different ethnic &
cultural background
Predatory nature
Difficult childhood
Supplying alcohol while
remaining sober
Health difficulties
Absence of remorse
Wrong to die in prison
Following the victim
Full admissions/ cooperation with gardaí
Physical domination of
a slight woman by a
stronger man
Initial denial
Family member
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Prepared by Katharina Ó Cathaoir, Judicial Researchers’ Office, November 2012