A man who violently sexually assaulted his estranged wife, who recorded him on camera telling her he had “every right” to touch her, is to spend an extra eight months in jail after a successful appeal by the State.
The 27-year-old Kildare resident, who cannot be named to protect the identity of his former wife and their child, initially received a five-year prison sentence with the final 20 months suspended and was due to be released tomorrow.
When sentencing him at the Central Criminal Court, Justice Karen O’Connor said this was a frightening and menacing ordeal for the victim who was attacked in her own home where she had a right to feel safe.
She set a headline sentence of seven and a half years, which she reduced to five years in light of the mitigating factors. She said the most significant of these was the man’s guilty plea which spared the victim the ordeal of a contested trial.
The woman’s distressed 999 call following the attack was played to the three-judge Court of Appeal on Monday, along with two videos the woman recorded on her phone prior to the incident.
In the videos, which lasted for a number of minutes, the woman can be heard repeatedly pleading with the man to leave the house.
“Please leave the house, I’m begging you, please leave,” she states.
The man can be heard replying: “I’m not taking this crap. Until it’s over, I’m your husband and I have every right to touch you.” The video recordings ended when the man lunged at the woman.
The man pleaded guilty to the aggravated sexual assault of his estranged wife at her home in Co Kildare on November 19, 2020. Two other counts of sexual assault were taken into consideration.
Justice George Birmingham said the court would quash the existing sentence which was due to expire tomorrow and re-sentence the defendant.
In outlining the facts of the case, Birmingham said the man came to the home of his estranged wife on the pretence of fixing a burst tyre on her car. After the male was told that their daughter was being taken for a walk by her parents he pushed her up against the wall and put his hand inside her underwear. He again pushed her against the wall and put his hands around her waist before the woman began to struggle.
The complainant broke free and began filming the male in the house, begging him to leave.
The male then took her phone, pushed her face down on the bed and pulled down the struggling woman’s leggings and underwear. He then undid his belt and tried to penetrate the screaming woman either anally or vaginally.
The woman managed to grab her phone and alerted the emergency services who saw the complainant at the upstairs window. The male, who has an acquired brain injury, made immediate admissions to gardaí.
Birmingham described the video evidence as “disturbing” and said it caused “no doubt a great deal of distress” to the woman.
In her victim impact report, the woman said the brain injury, caused by a 30-foot balcony fall, had a significant effect on the man and that she arranged new locks on doors and windows.
Birmingham said the woman had at one point a protection order against the man and had stayed in a women’s refuge.
Birmingham said the headline sentence of seven-and-a-half years was “very lenient”. He said the Court of Appeal was “obliged to re-sentence” and quashed the original sentence.
The judge said the Court of Appeal had identified eight-and-a-half years as a headline sentence and would then reduce it by one third to five years and eight months’ imprisonment before he suspended the final 20 months.
At the appeal hearing earlier this week, Maurice Coffey SC, for the State, said there had been violence involved and there was a breach of trust whereby the respondent was estranged from his wife and came to the house on the pretence of something else.
Mr Coffey said it was a matter of looking at how the entire sentence was structured, with the starting point, a period suspended, and the amount of time for which it was suspended.
The barrister said emphasis had been given to the “mitigating factors rather than the aggravating factors” in the case.
He said there was also an over-emphasis put on a neuropsychologist’s report, which stated the respondent was of low risk, particularly given the fact that he had not been engaging with his own medical practitioners.
He said the weight given to the aggravating factors was taken into account in the headline sentence.
Coffey said the reduction from the headline sentence to the sentence imposed, the degree in which that was suspended and the period it was suspended for was “cumulatively too much”.
Roisin Lacey SC, for the respondent, said this case was one with a very unique set of circumstances that were very difficult to balance.
In submissions to the court, counsel said the most significant source of mitigation in the case was the traumatic brain injury suffered by the respondent in December 2017 when he fell from a balcony, which had a profound effect on him.
She said the respondent had remained at the scene and the issue in relation to remorse and insight had been dealt with by neuropsychologist Dr Catherine Morton in her report.
Lacey said it was clear from the transcript of the hearing that the trial judge had been incredibly mindful of the impact of the offending and of the aggravating factors in the case.
Birmingham said one matter that did not get a lot of attention was the fact that the respondent had a previous conviction for violence which predates his brain injury.
The court heard this related to an incident of assault causing harm in the context of “a racial slur.”
Counsel said the judge was “certainly aware of it,” adding the necessary focus of the judge was to deal with the matter before her and of crafting a sentence which reflected the offender before her, particularly in terms of the impact of the acquired brain injury he had sustained.
She said Norton’s report had noted it was “highly likely” his brain injury had contributed to the offending behaviour.
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