Saturday 22 September 2018

Supreme Court refuses to hear appeal of rapist and child abductor over 19 year sentence

Michael Murray
Michael Murray

Tim Healy

The Supreme Court has refused to hear an appeal by a man over a decision to increase from 15 to 19 years his sentence for the rape and sexual assault of a woman whose child he abducted in the same incident.

Michael Murray had argued the absence of established sentencing tariffs is unfair both to accused persons and trial judges, the Supreme Court noted. While that issue may have to be considered in "an appropriate case", the court could not, on the facts of Murray's case, see "any potential benefit" to him in granting an appeal for that purpose.

Murray (46), formerly of Killiney Oaks, Killiney, Co Dublin, was originally jailed for 15 years for rape, attempted rape, oral rape, aggravated sexual assault, child abduction, threats to kill or cause serious harm, false imprisonment and theft at a Dublin apartment on February 12-13 2010.

His trial heard Murray lured the woman into an apartment by telling her an elderly woman was dying inside and needed her help. He tied her up and assaulted her before taking her four year old son away and abandoning him in a city centre square late at night. He then returned to the apartment where he drugged and raped his victim.

He was found guilty on all counts but the DPP later sought a review of his 15 year sentence on grounds it was "unduly lenient".

In November 2017, a three judge Court of Appeal (COA) substituted a sentence of 19 years after finding the 15 year sentence was "inadequate to a significant extent".

Murray applied for permission to appeal that 19 year sentence to the Supreme Court but, in their recently published determination, three Supreme Court judges said he had failed to show the case raised issues of general public importance or an appeal was necessary in the interests of justice.

The Chief Justice, Mr Justice Frank Clarke, Ms Justice Elizabeth Dunne and Ms Justice Iseult O'Malley said Murray had argued, because the original 15 year sentence was within the available range for rape offences, there was no error in principle in the original sentence and the Court of Appeal erred in interfering with it.

The trial judge had identified the case as falling into the most serious category of such offences and there could be "no dispute" about the correctness of that, the Supreme Court said.

While the trial judge had imposed a sentence at the bottom of the range of 15 years to life for such offence, that sentence was "not immune on appeal".

It can be an error in principle to choose a particular point on a scale, whether at the top or bottom end, which does not properly reflect the circumstances of a particular offence, the court said.

It said the COA had expressly referred to the criterion for finding a sentence unduly lenient - that it falls outside the applicable range - and identified errors in the 15 year sentence by reference to the effect on Murray's victim, his criminal record and the "multiple aggravating factors and compete absence of mitigatory factors".

Contrary to what Murray's lawyers argued, the appeal court did not approach the matter on the basis it itself would have been disposed to impose a longer sentence of 20 or 21 years, the judges added.

The COA expressly referred to its practice, in cases involving significant lapse of time between the original hearing and a decision on a leniency application, of imposing a sentence less than it would have considered appropriate at first instance and followed that practice.

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