A Dublin chef who sexually assaulted a woman after inviting her back to his house following a night out drinking has been given a three-year suspended sentence by Mr Justice Paul Carney at the Central Criminal Court.
James McPhail (30), St John Avenue, Clondalkin pleaded guilty to sexually assaulting her on April 7th, 2001. He had no previous convictions.
Mr Justice Carney said there was a "significant and surprising number" of cases coming before the court with the scenario of a woman becoming tired at a party, finding a bed to lie down on and waking up to find a man having sexual intercourse with her.
Mr Justice Carney said these facts constituted the crime of rape but he was at a loss to know how he should deal with them following a decision of the Court of Criminal Appeal.
He said the Court of Criminal Appeal had in a case of this nature, involving anal and vaginal rape, set aside a sentence of imprisonment which he had expressed to be a lenient one, "below the norm", and which the prosecution also considered lenient.
Mr Justice Carney, who directed that "in the interest of accuracy of reporting" a transcript of his sentence comments be sent to broadsheet newspapers, said the Court of Criminal Appeal also found him to be in error in approaching sentence without leaving open the possibility of a non-custodial sentence.
It had also found him "in error for attaching great weight to the need to be consistent, predictable and to have regard to the penalties imposed in general by this court".
He said: "In the light, in particular, of the mantra coming almost daily from all quarters in society calling for consistency in sentencing, I feel I need more guidance from the Court of Criminal Appeal in dealing with these cases.
"To achieve this I will give a certificate for leave to appeal on a number of specified grounds in an appropriate case. I feel I should do this in a case involving penetration, namely a case of rape. This is not such a case," he said.
Mr Justice Carney said the plea in this case was "to the much lesser offence of sexual assault, which can range from smacking a bottom to attempted rape" .
The facts relied upon to support the conviction, had been outlined at an earlier hearing by Garda Brendan Breen who told Mr Michael O'Higgins SC, prosecuting, that McPhail and the victim had been drinking in a pub with his father and his father's partner.
Garda Breen said that at the end of the night they were the only two left and she accepted an invitation back to his house for a few more drinks on the condition that nothing happened.
They were drinking in his room, listening to music, but after a while she felt tired and fell asleep on his bed. She woke up at 5 a.m. to find her clothes somewhat dishevelled; her trousers and underwear were on the ground; her bra top was pulled up. She left.
Garda Breen said she had a feeling of soreness in the area of her private parts and was uneasy about what had happened. She made a complaint to An Garda Síochána who arrested McPhail.
Mr Justice Carney noted McPhail made a cautioned statement and the question and answer session of that cautioned interview was the evidence relied upon to support the charge.
Mr Justice Carney said McPhail pleaded guilty, and it was accepted that his plea was of great benefit to the victim. He had no previous convictions, was in good employment, and had been effectively addressing an alcohol problem.
"It is the experience of this court that an evenly sexually mixed jury, or a jury of any other composition, would not have convicted in this case having regard to the admitted consumption of alcohol," Mr Justice Carney said.
"This was twelve pints of stout and eight or nine whiskies on his part, and nine or ten Southern Comforts on the part of the victim. This is not a statement that alcohol affords either a justification or mitigation of the crime, but is a recital of how juries have consistently treated this sort of case." Mr Justice Carney said he believed this case could be met with a sentence of three years imprisonment, suspended on McPhail entering a bond in the sum of a €1,000 to be of good behaviour for five years.