LAWYERS for a homeless man who admits sexually assaulting a woman in a laneway have said he did not initially accept that a woman could be so drunk to be incapable of consent.
The woman was extremely drunk and walking around the streets in her bare feet when she met Las Vegas Balan (25).
Balan, a Romanian national who was sleeping rough on the streets of Cork city, led her into a laneway and pushed her up against a wall.
CCTV footage of the laneway shows Balan groping the woman and then trying to knock her to the ground.
She is seen struggling to remain upright before Balan pulled her behind a van.
A resident heard the victim screaming and looked out to see her partially undressed.
Gardaí came to the scene and found her sitting on the ground in an incoherent and disoriented state.
Footage from earlier in the night shows her unsteadily walking around the city in her bare feet and walking in and out of fast food outlets without ordering any food and in a “meandering” state.
She told gardaí she blacked out and had no memory of the attack and never consented to any interaction with the man.
Balan had been sleeping rough not far from the scene of the attack. After his arrest, he accepted that she was very drunk but claimed the sexual activity was consensual.
He did not accept that a person could get so intoxicated so as to be incapable of giving consent.
Paul Christopher BL, defending, said Balan accepted “she was not 100 per cent aware” and agreed that “maybe I was wrong in a way”.
“In his culture, he is not used to this binge drinking culture,” counsel said, adding that “he didn't accept that she was so intoxicated she didn't know what she was doing”.
Balan pleaded guilty at the Central Criminal Court on November 14 last to sexual assault at a place in Cork on a date in May 2018.
He has no previous convictions and was living off begging in the city.
Mr Justice Micheal White imposed a five-year prison term and backdated it to May 2018, when Balan went into custody.
Mr Christopher submitted to the investigating garda, Detective Sergeant John O'Connell, that “there was absolutely no coercion”.
He submitted that the CCTV footage showed the woman in the laneway “quite capable” and “looking around...to see if the coast was clear”.
He submitted that the woman “went voluntarily back behind the van”.
Dt Sgt O'Connell said he could not agree.
Mr Justice White said the objective evidence of the CCTV footage viewed in court was that the woman was “absolutely incapable” of giving any kind of consent.
He noted she had taken prescription medication as well as a substantial amount of alcohol, that she had lost her friends and was wandering around incoherently.
Mr Justice White said Balan “quite simply took advantage of her” although the offence was not accompanied by gratuitous violence.
“She needed care and assistance rather than exploitation” said Mr Justice White.
He said the woman had mental health difficulties previously and the offence had a terrible effect on her.
Mr Justice White noted that the guilty plea had been of some benefit but noted it had been entered prior to the opening of a retrial, after an “extensive trial” had already taken place.
The guilty plea came after a trial at the Central Criminal Court in which the jury were unable to reach a verdict.
The judge said he also took into account Balan had no previous convictions and was a foreign national.