Sunday 4 December 2016

Army private found guilty of attempted rape of a woman is jailed

Alison O'Riordan and Sonya McLean

Published 02/02/2016 | 14:55

The Criminal Courts of Justice in Dublin
The Criminal Courts of Justice in Dublin

A private in the army who was found guilty of the attempted rape of a woman last December has been sentenced to six years with the last three years suspended.

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Bernard Fleming (28) of Owendoher Lodge, Ballyboden, Dublin pleaded not guilty at the Central Criminal Court to attempted rape, oral rape and sexual assault of the woman at a location in Dublin on September 24, 2011. The jury convicted him of attempted rape following a trial.

The woman met Fleming and his friend that morning outside an early house, where they had been drinking following a night out in Dublin city centre. She later went to his home along with his friend where they continued drinking.

At some stage Fleming's friend left and the woman went to bed. She woke to find Fleming kissing her and trying to have sex with her. She ran out of the room and was helped by others who were also living in the house.

Fleming then appeared from the room, drunk, aggressive and wearing only a towel. There was a confrontation between him and the victim and he was heard saying sorry but it was unclear what that apology related to.

He was later arrested and denied the allegations. He claimed he had been fully clothed at all times.

The woman, who declined to make a victim impact report, was medically examined and found to have bruises around her arms consistent with the account she gave to the jury of being held down during the attack.

Detective Garda Donal Daly told the court that he felt that “this incident has had a major effect on her life”.

In mitigation Fleming's counsel said while alcohol "can never be an excuse or an explanation" the court could not ignore what one might call "risky behaviour" by both parties and there was "nothing predatory about what happened."

Ms Justice Isobel Kennedy noted that gardaí accepted there was “no element of a predatory offence” but said Fleming had taken advantage of a drunken young woman who had fallen asleep in his bed.

She acknowledged that since his conviction he had been discharged from the army and accepted that he had no previous convictions and had strong family support.

She said Fleming had suffered “the severe consequences of his actions” through the loss of his career.

Ms Justice Kennedy sentenced Fleming to six years in prison with the final three years suspended on strict conditions. She ordered that he undergo 18 months post release supervision and engage with the Probation Service for that period.

Alex Owens SC, prosecuting, said the woman had been out socialising with a friend on September 23 where the "consumption of quite a considerable amount of alcohol" had taken place.

The court heard Fleming had been out with his companion and they also had been involved in some "very heavy drinking." After Fleming and the woman encountered each other on the quays, the party of four went to a hotel in Temple Bar.

Later in the night Fleming, his friend and the woman got a bus back to his house in Dublin where more drink was consumed.

Detective Garda Donal Daly said the woman awoke to find Fleming "on top of her attempting to kiss her."

“I feel in my dealings with her that this incident has had a major effect on her life,” said Det Gda Daly.

Fleming had no previous convictions and had spent quite a few years in the army. He has a young child with his partner.

Brendan Grehan SC, defending, said his client had been "on some kind of a bender that lasted a few days" prior to this event.

The court heard it was "an entirely voluntary decision" where the complainant "latched herself onto the accused and his friend" and went back to his house.

Mr Grehan said it appeared from CCTV footage that the woman and her friend were in the early house for up to four hours on the night prior to meeting his client.

He said his client had spent time overseas while serving the army. He came from "a decent hard-working background" and was immediately discharged from the army upon conviction last year, counsel said.

Mr Grehan asked the court to take into account that the events in this case dated back to over four years ago.

"Time has marched on not just for the complainant but for everyone to do with this case and he is in a stable relationship with his girlfriend for the last number of years and they have a son to whom he is a devoted father," said Mr Grehan.

Counsel said his client had lost not just "something that was his job" but it was "his vocation and his career."

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