The Court of Appeal has dismissed K.A.’s appeal against the severity of his sentence for rape, finding no error of principle in the Central Criminal Court’s decision.
K.A. was sentenced on 29 May 2017 to ten years’ imprisonment, with the final year suspended. The Court of Appeal judgment, delivered on 26 February 2019, records that he was convicted as a principal in the second degree. The rape was committed by his now-deceased co-accused.
The offence took place in the early hours of 20 June 2013 in a bandstand at Ballyphehane Park, Cork. The court’s account says the complainant had been drinking with the men the previous day and had fallen asleep. When she awoke, K.A. and the other man were present. The complainant told the court she asked about her missing phone and was met with a suggestion that she do them a favour. She told the men to stop kissing her. K.A. pushed her down, held her by the shoulder and restrained her while his co-accused digitally penetrated and raped her. She was crying and repeatedly said no. K.A. declined when asked if he wanted intercourse, but told her “it’s alright girl” as he held her down.
The trial judge set a headline sentence of 12 years, then reduced it to ten years after considering mitigation, including K.A.’s youth, difficult upbringing, addiction difficulties and efforts to study in prison. The final year was suspended to encourage rehabilitation. The judge also considered the complainant’s vulnerability, the involvement of two men, the offence occurring at night, and the co-accused’s later threat to kill her. K.A. had 41 previous convictions, including robbery, theft, burglary and criminal damage, but none for sexual offences.
On appeal, K.A. argued that the sentence was disproportionate, that the headline sentence overstated his role and that the judge had not given sufficient weight to mitigation and rehabilitation. The Director of Public Prosecutions accepted that K.A.’s role was lesser than his co-accused’s, but argued that he played a significant part in the offence and that the complainant was particularly vulnerable.
The Court of Appeal said the trial judge had considered the relevant aggravating and mitigating factors. It concluded the sentence was not disproportionate, out of line with comparable sentences, or deficient in its consideration of rehabilitation. The appeal was dismissed.