Appeal against conviction for rape and robbery of sex workers is dismissed

McCarthy J: Criminal Law – appeal against conviction and sentence – guilty plea on two counts which were robbery charges – convicted on remaining 5 charges which were three counts of s.4 rape and two counts of s.48 rape and sexual assault – two victims – two victims – appellant sentenced to ten years’ imprisonment in relation to the first complainant – further ten years’ imprisonment pertaining to the second complainant were imposed – sentences for each group of rape offences were to be served concurrently inter se and consecutively to each other - appellant also sentenced to seven years imprisonment on the two counts for robbery to be served concurrently –overall twenty year period backdated to September 2017 when the appellant first entered custody – appellant arranged to obtain sexual services – showed up at the hotel in Portlaoise – appellant produced a knife which he held to her face and took complainant’s €400 – appellant performed various unprotected sex acts while still holding the knife – appellant told complainant to go to her home country and not to return to Ireland – CCTV evidence and DNA matched that of the appellant – on same day, appellant showed up at a hotel in Galway, where he arranged to obtain sexual services from the second complainant – appellant put a knife to complainant’s throat and told her to keep silent – he then asked complainant to give him money – various unprotected sexual activities took place which the complainant submitted to out of fear – appellant told complainant to go back to her own country and not to mention what happened to anyone – complainant contacted reception and spoke with Gardaí before being taken to hospital – search of appellant’s apartment yielded a number of items taken from the complainants – complainants outlined in their victim impact report the psychological and life-changing effect the attack had on them – after mitigation, a reduction from the headline sentence of 18 months for the rape offences and 3 years for the robbery were deemed appropriate by the sentencing judge – sentencing judge was of the view that consecutive sentences would be proper to be imposed against each victim in light of the facts as a whole – sentencing judge of the view that offences were not part of one transaction – application to adduce evidence on appeal – any actual or potential evidence of J.M., D.R. and Detective Garda Ryan, pertaining to the proceedings in the Circuit Court must have been known at the time of the trial and is not such that it could not reasonably have been known or acquired at the trial (to put the matter no higher) – any such evidence could not have had a material or any influence whether important or otherwise on the result of the case – hard to see how any evidence of J.M. would have been admissible in the present case because she reported the crimes in all three cases to D.R. – J.M. is not a compellable witness which is fatal in itself to the application – no basis to contend that the evidence potentially available from these witnesses should be heard here – whether the trial erred in law and/or fact in her ruling on the question of admissibility of the evidence of the complainant by video-link – whether the trial judge erred in law and/or fact, in that she refused an application to sever the indictment, which resulted, inter alia, in the Appellant facing trial in respect of two separate complainants in respect of two separate incidents – whether the trial judge erred in law and/or fact, in refusing an application for an adjournment of the trial to allow [the appellant] to receive outstanding disclosure and to examine recent disclosure received from the Prosecution – whether the trial judge erred in law and/or fact, in that she refused leave to the Appellant to cross-examine the complainant on her prior sexual history – whether the trial judge erred in law and/or fact in failing to stay the trial of the Appellant at the conclusion of the Prosecution case – whether the trial judge erred in law and/or fact, in her ruling that the Solicitor should continue with the trial and cross-examination of the complainant and not allowing an adjournment of the trial – whether the trial judge erred in law and in fact in failing to discharge the Jury after unedited, prejudicial material was given to them in error – whether the trial judge erred in law and in fact in her charge to the Jury in relation to corroboration – whether the trial judge erred in law and in fact in her charge to the Jury in relation to system evidence – whether trial was unsatisfactory by virtue of the fact that it was not made known to the Jury that the complainants knew [OF] each other – four grounds withdrawn at appeal – one ground not pursued in the written submissions – no basis for saying there is any infringement of the right to constitutional justice by virtue of the fact that a witness is heard remotely or by video link in accordance with Donnelly – it is a matter within the discretion of the judge and on a matter of this kind she is in the best position to make a judgment as to whether it is permissible to hear a witness in this way – norm will of course remain that evidence will be given viva voce in person in court – where there is a coherent and rational basis, as here, on the evidence as to why the witness could not attend, the judge properly exercised her discretion in permitting the evidence to be given in this way – fact that the appellant booked the complainants’ services via a third party does not mean that the possibility of collusion or contamination had any rational basis – the evidence of the complainants was thoroughly tested by counsel and the issue of collusion and contamination was canvassed – no evidential basis on which collusion or contamination might be alleged to have occurred – no doubt but that the evidence was cross-admissible – textbook case for cross-admissibility and it would have been wrong for the judge to sever the indictment – judge fully engaged with the issue of disclosure and whether or not the trial should be adjourned – a matter within her discretion – judge engaged with the issue thoroughly – no question that any procedural unfairness arose because the judge proceeded with the witness’ evidence after the appellant had chosen to discharge senior counsel –judge was entitled to take this course as it was entirely a matter for the appellant as to whether or not he wished to be represented by senior counsel – law can do no more than provide him with legal representation at public expense – as a matter of fact, there was no prejudice – appeal against conviction dismissed – grounds for sentence appeal are generic and overlapping – manner in which trial was conducted is a mitigating factor per se – FE does not exclude sentences in excess of 15 years, even though the highest range on the scale falls between 10-15 years in the ordinary course - FE contemplates circumstances in which sentences in excess of 15 years may be imposed in cases of exceptional or egregious severity – this is such a case – effective period of 20 years imprisonment is not excessive or disproportionate – total lies at or near the top range of sentences on the facts available to the trial judge – might be that a somewhat lower sentence might have been imposed by another judge or indeed we might have done so if hearing the matter on first instance but the fact remains that it was in the judge’s discretion to have decided as she did – no basis for saying there was any freestanding obligation to make the sentences in part concurrent - to do that would merely be a procedural mechanism to achieve a proportionate result by the proper application of the totality principle – no error in principle – appeal against sentence dismissed.