A "high-risk" offender jailed for seven years for the rape of a woman while her boyfriend was in the same bed has been re-sentenced by the Court of Appeal so that he must complete five years of probation supervision upon his release.
In March 2019, Patrick O'Driscoll, now aged 23, of Rosewood Drive, Charleville, Co Cork, was convicted by a Central Criminal Court jury sitting in Cork of raping the woman at a house in Co Cork on May 10, 2016. O'Driscoll was 18 at the time of the rape.
He had appealed both his conviction and the severity of his 2019 sentence.
Sentencing judge Mr Justice Michael White noted that O'Driscoll still adamantly denied the charges and so there had been no expressions of remorse. He said that nobody could but be moved by the victim's impact statement and the effect the rape has had on her bodily integrity and body image.
Mr Justice White noted that O'Driscoll's drunkenness on the night had been extreme. He said the mitigating factors were O’Driscoll's young age at the time of the offending and his tragic personal and family circumstances.
In his youth, O'Driscoll had been traumatised by the murder-suicide of his cousin, who killed two of his own brothers.
Mr Justice White set a headline sentence of ten years, which he reduced to seven years to take these mitigating factors into consideration.
Moving to appeal his sentence, his barrister Siobhan Lankford SC, said the headline sentence which was set as ten years was too high and not enough weight was given to the appellant's individual circumstances. "Where it is placed on the scale is too high and the discount given bringing it to seven years means it remains too high in this case," she said.
Ms Lankford also submitted that the trial judge erred in failing to suspend a portion of the sentence imposed, particularly in light of his very young age and his personal difficulties.
Counsel for the Director of Public Prosecutions, Tim O'Leary SC, submitted that the sentencing judge took an appropriate view in the reduction of 30 percent off the headline sentence. "In my view it is middle of the range and not an extreme sentence," he said.
Mr Justice John Edwards, sitting with Ms Justice Isobel Kennedy and Ms Justice Aileen Donnelly, rejected the appeal regarding O'Driscoll's conviction, saying that the trial judge did not err in dealing with conflicting accounts of the night of May 10, 2016, nor in directing that the case be taken away from the jury.
At the sentence hearing, Detective Garda Denis Ryan told Mr O'Leary, prosecuting, that a number of people, including the then 18-year-old accused and the 20-year-old woman, had gone back to a house in a Co Cork town after a night socialising. The woman had gone to sleep in a bed with her boyfriend asleep at the foot of the bed. She awoke during the night to find O'Driscoll having sex with her from behind. Once she realised what was happening, she tried to wake her boyfriend and there was a confrontation with tensions very high.
Gardaí were called to the house on foot of reports of a disturbance and O'Driscoll was arrested for a public order offence before the full extent of the situation became clear.
The woman made a complaint to gardaí almost immediately after they arrived. O'Driscoll denied the direct allegation, claiming he had been invited to sleep in the bed by the woman's boyfriend. This was refuted by the woman's boyfriend during the trial in Cork.
The now 24-year-old woman, who was not present in court for the sentence hearing, said in her victim impact statement that the events of that morning had changed her life completely and left her "feeling angry, ashamed, worthless and dirty". She said she suffered nightmares over the trial. She could not believe that O’Driscoll would not admit what he had done and was making her relive the experience.
She said the court case made her feel that she had been the one in the wrong and it was a huge relief when he was convicted. She said she was trying to move on but it was going to affect her for the rest of her life. She fell into depression and used drugs and alcohol to cope, found it difficult to stay in employment and became homeless and lived in shelters. She had to leave her job in job due to the amount of time off she needed to recover. She also had to be removed from the family home by her mother to protect her siblings.
O'Driscoll has 37 previous convictions including public order and road traffic offences at District Court level, with no previous for sexual offences. On the night, O'Driscoll had admitted the attack but then withdrew his admission, claiming that he only said he did carry out the attack "to keep the peace" on the morning after when tensions were high.
The appellant had argued that this withdrawn admission should not have been put in front of a jury, which was rejected by the Court of Appeal.
The court also found there was no unfairness in evidence going before the jury that the woman had taken two Xanax tablets before going to sleep, of which it was complained the defence were not put on notice of and did not have an opportunity to investigate.
Mr Justice Edwards said there was no evidence before the court that if the defence were given such an opportunity, it might have undermined the complainant’s evidence, while there was also no application for an adjournment during the trial.
The Court of Appeal found that there was no error in the headline sentence of ten years and that a mitigated sentence of seven years could be considered "generous".
In the Court of Appeal's ruling, Mr Justice Edwards said that the appellant was seeking to have a proportion of the sentence suspended to give O'Driscoll some "light at the end of the tunnel" but rejected the application due to the serious nature of the case.
The trial judge had not ordered any post-release supervision, however, which the Court of Appeal addressed.
"We consider that there is a strong need for post-release supervision in the circumstances of this case. To take account of the interests of society and to ensure that there are some structures put in place to monitor the appellant," said Mr Justice Edwards.
A probation report at the trial said that O'Driscoll was a "high risk of general re-offending and at a medium risk of sexual re-offending".
Mr Justice Edwards said that it was in both the public's and O'Driscoll's interest that he address his risk of re-offending through supports upon release.
"We consider that the sentencing judge, in considering where there was a need for probation supervision did not attach sufficient weight to the assessment of the probation service that the appellant could be considered as a suitable candidate for probation supervision as part of any overall sentencing package.
"The appeal is allowed. The sentence imposed by the court is quashed and the appellant is re-sentenced to seven years' imprisonment with a post-release supervision order for a period of five years," said Mr Justice Edwards.