Saturday 26 May 2018

'This goes beyond trauma' - raped woman with Down Syndrome has had 'her life upended', judge says ahead of sentencing

Faisal Ellahi (34) was also found guilty by a jury of sexual assault.after two and a half hours deliberations and a five week trial.
Faisal Ellahi (34) was also found guilty by a jury of sexual assault.after two and a half hours deliberations and a five week trial.

The judge sentencing Faisal Ellahi for the rape of a young woman with Down Syndrome has said that the victim has had her whole life upended by the attack.

At a sentencing hearing today, Padraig Dwyer SC, defending, submitted to Mr Justice Tony Hunt that he didn't know if the effects of the offence on the victim in this case was worse than that in other rape cases.

Mr Justice Hunt said he disagreed with this and said: “This goes beyond trauma. This victim's life has been upended in the most radical way.”

He agreed with Mr Dwyer that the victim had the support of a loving family to help her but said that “all of their good work has been set at nought”.

At a previous hearing last week the victim's mother told the court that years of work building up the independence of her daughter were instantly destroyed when she was raped by Ellahi.

Ellahi was convicted last December of raping and sexually assaulting the woman after luring her back to his apartment when she became separated from her mother near their Dublin home.

Ellahi, who is originally from Haripur in Pakistan, pleaded not guilty last year to rape, sexual assault and having sex with a mentally impaired person at his Dublin home on June 12, 2013. The jury was not required to deliberate on the third count if it convicted him of rape.

The court heard he continued to deny the charges and maintained his position that he did not know the woman had Down syndrome. He has no previous convictions in this jurisdiction and gardai are unaware of any convictions in his native country.

Mr Justice Hunt agreed with counsel that this case involved a single incident of rape, unlike cases of multiple rape or rape over a prolonged period of time which Mr Dwyer presented to the court.

But the judge added: “The effects of [that single incident] are horrendous way beyond the normal range of the offence because of the victim.”

Mr Dwyer told the court that he was seeking a psychiatric report for his client to deal with an issue over his client's IQ level. Mr Justice Hunt listed the case for mention on February 2 to allow time for this report to be prepared.

He previously told Ellahi's counsel that any prospect of a partially suspended sentence would be contingent on him agreeing to be deported to his native Pakistan on his release.

Mr Dwyer said he had discussed this with his client and that Ellahi is willing to enter a bond to leave the country. The judge said he had not intended to extract an “undertaking” from Ellahi and said all options were open to him.

“He can enter a bond and and clear off,” the judge said today.

Counsel told the court that most cases of rape do not attract sentences of more than ten years. The judge said whether this is correct or not is “another day's work”.

He noted that the Oireachtas sets a range of sentences up to life for rape offences. Using the example of a maximum sentence of ten years for the offence of dangerous driving causing death, he said judges “never impose the full sentence”.

He later told counsel: “I don't have a punishment fetish”.

Mr Dwyer submitted to the court that his client's case does not attract a sentence beyond the median range, which is defined at five to seven years in an analysis of rape sentencing carried out by the Irish Sentencing Information System (ISIS).

He said that rape cases which attracted a greater sentence than this usually involved a more severe degree of violence and previous convictions. He said there was no violence carried out other than the violence inherent in rape.

Mr Justice Hunt said that while he had no issue with how the victim was cross-examined by counsel he did have “serious issues” with Ellahi's testimony at trial.

“We have the thorn question of Mr Ellahi's evidence. His own evidence made certain assertions about the victim which were rejected, in my view for good reason. We had a positive assertion of consent and enjoyment.”

“Giving evidence that might be regarded as incorrect can be regarded fairly as an aggravating factor,” he said.

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