The Director of Public Prosecutions (DPP) has claimed that Mr Justice Paul Carney erred in principle and was "unduly lenient" when he suspended a three-year sentence on a man who raped a woman while she slept.
In March, bricklayer Adam Keane (20), Daragh, Co Clare, was found guilty of raping Mary Shannon (33) also from Daragh, while she slept in her home in May 2005. She has a hearing impairment and had taken out her hearing aid so she did not hear him entering her house. He turned off the light so she thought initially he was her boyfriend when she awoke. Ms Shannon has waived her right to anonymity.
Last month the sentence was activated and he was jailed by Mr Justice Carney when he heard evidence that Keane had flicked a cigarette in Ms Shannon's direction hours after leaving the court.
Moving the DPP's appeal against the original sentence yesterday, Pauline Walley SC said she accepted that the defendant was now serving the sentence but this did not take from the fact that he had received a suspended sentence.
"If Mr Keane had not flicked a cigarette, he would not be serving a sentence," she told the Court of Criminal Appeal which has reserved its judgment.
Chief Justice John Murray presided over the case with Mr Justice Peter Charleton and Ms Justice Mary Irvine.
Ms Shannon was in court with two sisters as was Keane's mother and girlfriend. Ms Walley said the case had "enormous implications" for other cases as the suspended sentence was "a substantial departure" from the norm.
She claimed Mr Justice Carney had placed too much emphasis on the DPP vs NY rape case when deciding on Keane's sentence.
The Court of Criminal Appeal had overturned the sentence he had handed down in that case and Mr Justice Carney said he was obliged to be consistent in sentencing. Ms Walley said the cases could not be compared as the NY case was "very unusual" in several regards. In the case before the court, Ms Walley argued, a woman was attacked as she slept; without her hearing aid, and with her three children asleep close by.
Keane had told gardaí that he had regular blackouts after heavy drinking sessions and said he could not recall anything about that night, until he was woken by gardaí in his girlfriend's home.
She said there had been no evidence before the court that Keane would not offend again and there was no evidence that he had taken steps to deal with his alcohol-induced blackouts.
Ms Walley said the court had not fully considered the aggravating factors, such as the impact on Ms Shannon and her children. They had to leave their home of nine years and move back with her parents. She had to undergo a number of tests, including a pregnancy test and a test to see if she had contracted a sexually transmitted disease. She suffered from anxiety and was fearful of being alone and was traumatised by the media coverage in the case.
"Mr Justice Carney, despite his great experience, and very unusually in this case, took too much account of the circumstances of the offender and failed to have sufficient regard for circumstances of the offence," she said.
Brendan Nix SC, for Keane said his client had been "recklessly careless" in that he had drank to such an extent that he blacked out.
It was "a vicious coincidence" that Ms Shannon's home was close to his girlfriend's home - and both had left their back doors open, Mr Nix said.
He said Mr Justice Carney's ruling should stand as judges should have the discretion to "act properly as they see it and be consistent with themselves".
