In a decision outlining sentencing principles in rape cases, the Court of Criminal Appeal (CCA) has said sentencing judges must start from the basis that a custodial sentence is the norm in such cases.
Only unusual and exceptional circumstances would justify a departure from this norm, Mr Justice McCracken, sitting with Mr Justice Gilligan and Mr Justice O'Leary, said today.
The CCA was satisfied there were such exceptional circumstances in the case of Gary Davis, who was just 15-years-old when he raped a 50-year-old man after a night's drinking.
Davis, now aged 18, of Kenilworth Lane, Rathmines, Dublin, had pleaded guilty to buggering the man at Dominic Street Flats, Dominic Street, Dublin, in November 2001.
In January 2003, he was given a three year sentence which was entirely suspended on the basis of Davis remaining under the supervision of the Probation and Welfare Service for three years and continuing treatment with a programme for adolescent boys who had sexually abused.
Last month, the CCA rejected a claim by the DPP that the sentence was unduly lenient and said, in light of the importance of the case, it would give its reasons later.
Giving its judgment today, Mr Justice McCracken when considering the appropriate sentence in rape cases, the sentencing judge must start from the basis that a custodial sentence would normally be imposed.
In most rape cases, the isuse of a non-custodial sentence will never arise, he added.
However, there were cases of special and exceptional circumstances which were frequently related to the position of the accused.
In Davis's case, the trial judge had applied the correct principles. Davis had pleaded guilty at a very early stage, made a full statement and was extremely remorseful for his involvement in the crime.
A very helpful report from the Probation and Welfare Service was very positive about him as was another report on Davis' involvement in a group treatment programme for adolescent boys who had sexually abused others.
The programme was very benefical for Davis who had taken seriously his need to avail of treatment and counselling. He was to have a further 14 months treatment which would not be available to him if jailed.
The report also stressed that Davis was 15 at the time of the offence and very confused about his sexuality.
The CCA believed the trial judge was correct to find Davis' case was one of exceptional circumstances.
The trial judge had to balance the violence involved in the crime with the fact this was an isolated event committed by a 15 year old who was trying to come to terms with his homosexuality.
While the CCA had every sympathy for Davis' unfortunate victim, it could see no useful purpose which could be served by jailing Davis.