The Court of Criminal Appeal has quashed a suspended sentence imposed on Adam Keane after his conviction for rape and replaced it with a 10-year prison term, suspending three years subject to conditions. It also ordered one year of post-release supervision and that he be placed on the sex offenders register.
The court delivered judgment on 19 December 2007 on an application by the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993. It found the original sentence of three years, suspended in full for five years, was unduly lenient and that the trial judge had erred in principle.
The offence occurred between midnight and 1am on 29 or 30 May 2005 at the home of a woman identified in the judgment as Miss Y, in Ennis, County Clare. A jury convicted Keane of raping her while she was asleep in her bed. The court said he had entered the house without invitation and that her three children were asleep nearby.
The appeal court said the trial judge had treated the case as similar to an earlier case, referred to as N.Y., in which the Court of Criminal Appeal had suspended part of a sentence in exceptional circumstances. It clarified that N.Y. did not establish that judges should begin rape sentencing by considering a suspended sentence. The usual starting point, the court said, was a substantial custodial sentence, with a non-custodial sentence reserved for wholly exceptional circumstances.
The court found the circumstances here materially different. Unlike the offender in N.Y., Keane had not admitted the offence at the outset or pleaded guilty. The judgment also described the lasting effects on Miss Y and her family: they left their home and neighbourhood, and she continued to feel unsafe. The court said the trial judge had not referred to the impact on the victim and her family or given sufficient weight to where and how the rape occurred.
Keane had told Gardaí he could not remember events after drinking and taking a drug described as MDMA. The appeal court said it proceeded on the trial judge’s acceptance of his claimed lack of recollection, while noting there was no direct evidence of his state of mind during the offence beyond evidence that he was drunk and had taken a drug. It held that this did not remove criminal responsibility.
In setting the new sentence, the court took account of Keane’s age, 18 and a half at the time, his lack of previous convictions and other mitigating matters. Three years of the 10-year term were suspended on a €500 bond requiring good behaviour and cooperation with supervision. The sentence was to run from 11 May 2007, when he entered custody.
The judgment also set aside an order made after the original sentence that had removed its suspension. That separate decision had been appealed by Keane; the court said it was not the issue before it in the DPP’s sentence-review application.