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Court of Appeal allows appeal from a sentence of 106 days detention, suspended in its entirety, in respect of an offence of rape by a 14-year old boy of a 15-year-old girl, on the grounds of undue lenience, and substitutes a sentence of two years imprisonment, suspended in its entirety, where the offender was now over 18 years of age.
Burns J: Criminal law – review of sentence on grounds of undue leniency – trial before jury – respondent found guilty of single count of rape – respondent was a child when verdict was delivered – detention of 106 days imposed suspended on certain terms and conditions for 106 days – victim was part of a group of five girls wo met by arrangement the respondent and two friends – met in the west of Ireland during an afternoon – both victim and respondent had no previous experience of drinking alcohol and were sexually inexperienced – respondent was 14 and victim was 15 – two bottles of vodka were brought to a forested area at the back of a playground – cannabis was smoked on the way to the location – victim reported to be most sick and intoxicated – she suffered black out at some point – victim and respondent disappeared – friends went looking from them – victim was seen exiting behind the church and crying he put it in – victim could not remember what had occurred but did remember having stinging pain in her vagina – respondent told group that he had had sexual relations with the victim – one of the victim’s friends called their parents to explain what had happened, which resulted in the guards being called – issue of consent due to her intoxicated state – whether judge erred in principle in imposing a sentence what was inadequate in all of the circumstances – whether judge erred in affording excessive discount from the nominated headline sentence – whether judge erred in principle in treating the fact that the respondent was acquitted by a jury of second charge as a mitigating factor inter alia – whether judge erred in principle in giving excessive weight to general mitigating factors – appropriate reduction would have been less but sentencing judge is entitled to a margin of appreciation and the difference is not a substantial departure from the appropriate headline sentence – reduction of seven months was not excessive nor a substantial departure from the appropriate weight – deduction of 18 months from an already reduced sentence of 21 months was a significant departure and an error in principle – suspending the sentence imposed for only the term that would bring the respondent to his 18th birthday was also an error in principle – respondent re-sentenced – 3.5 years as headline sentence – reduction of 18 months from the identified headline sentence – committing respondent to an adult prison at this stage would serve no useful purpose whatsoever – sentence of two years’ imprisonment suspended in its entirety for 2 years.
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