Wednesday 13 December 2017

Man who sexually assaulted comatose woman will now be sent to jail after appeal

Marek Krol. Pic Collins Courts.
Marek Krol. Pic Collins Courts.

Ruaidhrí Giblin

A man spared jail for sexually assaulting a comatose women, who had parted company from her friends while out socialising, will be sent to jail on Monday following a finding that his original suspended sentence was "unduly lenient".

Polish national Marek Krol (54), with an address at Clarence Apartments, St Luke's Cork, had pleaded guilty to sexually assaulting the 25-year-old woman in Cork city centre on February 1, 2016.

He was given a wholly suspended two year sentence by Judge David Riordan at Cork Circuit Criminal Court on November 2 last.

The Director of Public Prosecutions successfully sought a review of Krol's sentence on grounds that it was unduly lenient and he was accordingly given a seven-and-a-half month jail term.

The three-judge Court of Appeal stated today that any invasive sexual assault on a comatose person who is not in a position to resist required a custodial sentence save in wholly exceptional circumstances.

Giving judgment, Mr Justice George Birmingham said the victim had been out socialising with friends when, a stage was reached, where she parted company from her friends.

At around 1.20am, the gardaí were contacted regarding a concern for the safety of a member of the public. Garda Johm Twomey arrived to find a female in the arms of a male. She appeared to be passed out and slumped over.

The male was caressing her and kissing her neck. When she woke she indicated that she did not know the man and didn't know she had been in his arms.

Gardaí reunited her with her friends and made sure she got home safely, Mr Justice Birmingham said.

The following evening, Garda Twomey viewed CCTV footage from the scene and found that it was more serious than first appeared.

Krol had opened the woman's pants, had his hand inside her clothing and was touching her. When the gardaí arrived she was fully clothed.

The 25-year-old woman explained that she was horrified and extremely embarrassed when she came to view the footage.

Krol, a Polish national, who worked as a handyman and painter, had lived in Ireland for 11 years and had no previous convictions. He had poor English and had had a heart condition in the recent past which required the insertion of a stent.

Counsel for the Director of Public Prosecutions, Anne-Marie Lawlor BL, submitted that the woman's condition, and her inability to resist, was a “very significant” aggravating factor.

Ms Lawlor said the DPP's position was that the offence itself must attract a custodial sentence by virtue of its gravity regardless of the offenders personal circumstances.

If you engage in a sexual assault on an incapacitated person of this kind you must go to prison, she submitted, absent any extraordinary or peculiar circumstances. She said it was “morally reprehensible behaviour”.

Mr Justice John Hedigan remarked that most people would come to the rescue of a person in the woman's condition “not prey on them”.

Defence counsel impressed on the Circuit Court that Krol would find prison difficult given his language and health difficulties.

Mr Justice Birmingham said the sentencing judge's comments that he didn't believe there were aggravating factors might seem surprising at first but it was clear he was conscious that the woman was incapable of offering resistance. The sentencing judge may have been indicating that the essence of the offence involved the molestation of an unconscious woman and that there were no factors present such as gratuitous violence over and above the offence itself, the Court of Appeal judge added.

Mr Justice Birmingham said any invasive sexual assault on a comatose woman who is not in a position to resist required a custodial sentence save in wholly exceptional circumstances.

Mr Justice Birmingham, who sat with Mr Justice John Edwards and Mr Justice John Hedigan, did not interfere with the headline sentence of two years but suspended all but seven-and-a-half months.

Krol will be required to present himself to Anglesea Street Garda Station in Cork on Monday next to begin serving his seven-and-a-half month sentence.

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