The Court of Appeal reduced Owen Power’s sentence for rape from 10 years’ imprisonment, with the final three years suspended, to seven and a half years. The court left the three-year suspension and 18 months of post-release supervision in place, and added a requirement that Power participate in the Prison Service’s Better Lives Programme while in custody and before release.
Power appealed the severity of the sentence imposed by the Central Criminal Court on 2 December 2013, following his conviction after a contested trial. The Court of Appeal, in an ex tempore judgment delivered on 28 November 2014, found an error in principle and substituted the shorter sentence.
The court said 10 years was above the range generally imposed in cases of this nature. It also found that the sentencing judge had not addressed information about Power’s mental health, which could be relevant both to his background and to how he would cope with imprisonment. Power was 18 at the time of the offence, had no previous convictions and had attended adolescent psychiatric services. The judgment records diagnoses of bipolar affective disorder and substance abuse, and later bipolar affective disorder and alcohol dependency syndrome.
The court stressed that rape required a substantial immediate custodial sentence and said this case, which followed a contested trial, was not one in which a suspended sentence could have been contemplated. It considered similarities with the case of D.P.P. v Adam Keane, but said that case was not a precise comparator. Keane involved rape during an unauthorised entry into a dwelling, which the court said placed it in a particular category.
The offence occurred in February 2012, after the complainant, then 19, had travelled to Wexford and socialised with friends. The judgment says she went to sleep in a bedroom at an apartment in Windmill Heights. Evidence at trial was that a friend saw Power go to the room and told him to leave; the friend later went to bed. The complainant woke to find Power touching her and said she had been raped. Power later told gardaí that intercourse had taken place and was consensual.
The court noted the serious and long-term impact described in the complainant’s victim impact report. It said the offence involved an unwelcome and uninvited entry into her bedroom. Its decision changed the custodial term and added the programme condition; the existing suspension and post-release supervision remained in force.