A man jailed for raping and threatening to kill his wife as their marriage was breaking down continues to show no remorse for raping her, the Court of Appeal has heard.
The 43-year-old man, who cannot be named for legal reasons, was jailed for 10 years after being convicted by a jury in the Central Criminal Court. He was the third person to be convicted for marital rape since rape within a marriage was made illegal in Ireland in 1990.
The trial court heard that the woman had to stay in contact with her husband after the rape so he could have court-ordered access to their child.
A jury of eleven men and one woman convicted him of raping his wife in their home in May, 2014 and of threatening to cut her face, having denied the charges. He was also convicted of threatening to kill the woman the next day over the phone. However, the jury failed to reach verdicts on charges that he head-butted her and threatened to do “serious damage to her” when they met to discuss custody of their son. He had admitted assaulting his wife with a hammer.
Ms Justice Isobel Kennedy sentenced him to 12 years imprisonment with the final two suspended in June 2016.
The Court of Appeal upheld the man's conviction last December holding that “none of the grounds or appeal” argued on his behalf succeeded.
Giving judgment on that occasion, Mr Justice Alan Mahon said the man, an Arab Muslim from north Africa, married his wife, an Irish national, in 2005. Mr Justice Mahon said a series of assaults and threats, including rape in the marital home, culminated in an attack by the man on his wife and her mother during which both were struck with a hammer.
Moving to appeal his sentence yesterday, Thursday, February 22, his barrister, Ronan Munro SC, submitted that the sentence was excessive for a single rape offence and the sentencing judge placed insufficient weight on the mitigating factors.
Not only had his client no previous convictions but, Mr Munro said, he had been a “good husband and father” and the couple had been in love up until the breakdown of the marriage.
He said the man had suffered a “depressive episode” a year beforehand and it was in that context that these offences occurred.
Mr Munro said the court should not lose sight of the person who existed before the “depressive episode”. If he existed once, he can exist again, counsel said.
The Court of Appeal heard that the man refuses to show any remorse for the rape offence. Moreover, he continued to be “unaccepting” of his conviction in that he had decided to bring his unsuccessful conviction appeal to the Supreme Court, although he was within his rights to do so.
Mr Munro said his client had indicated “shame and remorse” in relation to the assault.
Counsel for the Director of Public Prosecutions, Séamus Clarke SC, said it wasn't a single incident but a “Spring and Summer of torment for his wife” which included the breaching of a barring order, threats and assault.
Dismissing his conviction appeal in December, Mr Justice Mahon said the man, at the outset, had raised concerns that he would not receive a fair trial before a jury made up of Irish citizens “most likely to be entirely of the Christian faith”. It was pointed out that the man was a foreign “dark skinned” Muslim from north Africa.
Mr Justice Mahon said this was really a challenge to the Juries Act 1976. There was a concern that “an Irish person of the Christian faith might have a view that men of the Muslim faith treated women generally, and more particularly their wives, with less respect or at least differently than was the norm in Irish society.”
The trial judge said any suggestion a jury panel should be told they should not serve if the were racially prejudiced was “insulting to any potential jurors” and that it “presumes prejudice” on their part. She said she would give the jury the usual warnings.
Mr Justice Mahon said juries had “time and time again” shown themselves well capable of acting responsibly and discharging their duty to determine an accused guilty or not guilty in accordance with evidence presented in the trial.
He said Irish juries were regularly called upon to consider the guilt or innocence of persons charged with rape and various types of sexual offences including, on occasion, where the accused is a foreign national or a member of a non Christian religion.
“To assume” or to have any significant concern that racial or religious prejudice was a significant feature in Irish society to the point that the probability of a fair trial could or should be called into question was “without foundation”.
It was quite likely that any special or unusual warning on possible prejudice against Muslims or foreigners would simply be considered insulting and “entirely counter productive”, Mr Justice Mahon said.
The fact the jury disagreed on two specific counts strongly suggested that they took their duty to fairly try the man seriously and were not prejudiced or biased against him because of his religion, colour or nationality, Mr Justice Mahon said.
Mr Justice George Birmingham, who sat wih Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve its judgment on the sentence appeal.