The Court of Appeal has ordered Marek Krol to serve seven-and-a-half months in prison after finding that a fully suspended sentence for sexually assaulting an unconscious woman was an error in principle.
The court left the two-year headline sentence imposed by Cork Circuit Court in place, but suspended all of it except the final seven-and-a-half months. The other terms of the suspension remain as ordered by the Circuit Court. The judgment does not set out those terms again.
The Director of Public Prosecutions asked the Court of Appeal to review the sentence under section 2 of the Criminal Justice Act 1993. On 1 November 2016, the Circuit Court had imposed two years’ imprisonment, wholly suspended for three years, for one count of sexual assault. It also placed Krol under Probation Service supervision for one year and ordered him to pay €400 within 12 months towards the complainant’s therapy expenses.
The offence occurred in Cork city centre on 1 February 2016. Gardaí responding to a public call found the complainant, identified in the judgment as Ms H., unconscious in Krol’s arms. They separated the pair. CCTV viewed the following evening showed Krol opening her trousers, putting his hands inside and touching her. The judgment says that, after being shown the footage following his arrest, Krol made admissions.
The DPP argued that the sentencing judge had wrongly placed the offence between the lower and middle end of the scale and failed to account for aggravating factors, including the complainant’s vulnerability and intoxication. The Court of Appeal said the DPP’s description of the assault as prolonged and calculated, involving repeated groping, was not fully supported by Garda evidence. It cautioned against over-analysing brief sentencing remarks, while noting that the sentencing judge had been aware the complainant could not resist.
The appeal court compared the case with an earlier review, DPP v Stewart, which also involved an assault on an unconscious woman and resulted in a partly served prison sentence. It concluded that an invasive sexual assault on a person unable to resist required custody except in wholly exceptional circumstances. As Krol had initially received a fully suspended sentence, the court said it would impose less than it might have at first instance.
The judgment was delivered ex tempore on 22 June 2017 by Mr Justice Birmingham, with Mr Justice Edwards and Mr Justice Hedigan also on the court.