Man who sexually assaulted sleeping flat mate has jail term cut on appeal

A 29-year-old man who sexually assaulted his flat mate while she slept on a couch in their Dublin home, has had his jail term cut on appeal.

The Italian man, who cannot be named to protect his victim’s identity, was jailed for two-and-a-half years in January, after pleading guilty at Dublin Circuit Criminal Court to carrying out the offence on April 27th, 2018.

The Court of Appeal on Friday found that the ultimate sentence imposed on the man was excessive and cut his jail term by six months following a successful appeal.

The sentencing court heard that the woman and man had become friends after she began sharing a flat with him. They had an intimate relationship for a short time and when it ended, the woman began a relationship with another man.

On the night in question, the woman fell asleep on the couch next to the defendant and awoke to find him sexually assaulting her. It took some time for her to awaken fully and for what was happening “to fully sink in”.

The man apologised, telling her the next day that he was “so ashamed” and wished he could undo his actions. However, he later claimed to gardaí­ that the sexual activity was consensual before he finally admitted his actions.

The woman told his sentence hearing that her life would never be the same again and that the attack took all her dignity and femininity from her. She said that nobody understood how badly she had been injured because the psychological damage was immeasurable.

Judge Martin Nolan said that he could accept as genuine the man’s expressions of shame and remorse, and said that he was unlikely to re-offend. However, he said “the fall from grace was so severe” that a jail sentence was necessary for his “reprehensible” actions, which had left his victim severely traumatised. He set a headline sentence of five years, but reduced this by half, after taking his mitigation into account.

The man’s barrister, John Fitzgerald SC, argued his client’s headline sentence of five years was too high and that, consequently, the ultimate sentence imposed was also too high. He further submitted that the decision not to suspend any portion of the sentence involved error on the part of the judge.

However, Fionnuala O’Sullivan BL for the DPP, said that five years was the correct headline sentence and explained that the vulnerability of the victim, being asleep, was of most importance. On the failure to suspend a portion of the sentence, she said the judge had found that two-and-a-half years was the appropriate time to spend in custody.

In a judgment returned electronically on Friday, President of the Court of Appeal Mr Justice George Birmingham said the sentencing judge was entitled to take the view that it was neither necessary or appropriate to incorporate a part-suspended element. However, the three judges of the Court of Appeal concluded that the ultimate sentence imposed on the man was excessive and imposed a headline sentence of four years imprisonment instead of five years.

Mr Justice Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, resentenced the man to two-and-a-half years imprisonment with the final six months suspended. They also imposed a condition that the appellant stay away from the injured party for a period of four years.