A violent sex attacker who had it “in his mind” to rape an 85-year-old woman after breaking into her home at 4.30am and pinning her to her bed has had his jail term increased on appeal.
Shane Smith (32), of Assan, New Inn, Ballyjamesduff, Co Cavan, had pleaded guilty to sexually assaulting the woman at her home on April 6, 2018.
At Cavan Circuit Criminal Court last November, he also admitted the false imprisonment of the same woman and was sentenced to four years and six months, with nine months suspended, for the sexual assault and one year and 10 months for the second offence.
At the same hearing before Judge John Aylmer, Smith was sentenced to a further three years’ jail after he pleaded guilty to assaulting a man with a shovel and a knife on November 23, 2018, contrary to section three of the Non-Fatal Offences Against the Person Act.
All sentences were to run concurrently, which meant Smith would only serve three years and nine months behind bars for both assaults.
The Director of Public Prosecutions (DPP) appealed the sentences on the grounds they were unduly lenient and that consecutive periods of imprisonment should have been imposed.
In an ex-tempore judgement delivered today at the Court of Appeal by Mr Justice Patrick McCarthy, it was found that Judge Aylmer had “erred in principle” by failing to order consecutive terms.
Mr Justice McCarthy, sitting with Mr Justice John Edwards, presiding, and Ms Justice Isobel Kennedy, also said that the judge’s initial headline sentence for the sexual assault “was simply too low” and a seven-year term would have been more appropriate.
The assault against the male victim, Mr Justice McCarthy said, had been premeditated.
Smith later inflicted “a substantial amount of violence” against his elderly victim following the “forcible entry into her home”, the judge continued.
Imposing a total of seven years for both assaults, with the final 12 months suspend, the appellant judge said Smith had taken “only limited responsibility for his actions”.
In documents submitted to the Court of Appeal, the DPP said the sentencing judge had failed to give sufficient weight to aggravating factors, such as the age of his elderly victim, the hospital treatment she required for injuries to her foot and back, and the fact Smith had breached her constitutional right to the inviolability of the dwelling home to carry out the attack.
At an appeal hearing on Tuesday (November 16), Monica Lawlor BL, for the DPP, said Smith was arrested after DNA taken from the scene of the section 3 assault matched genetic material recovered from a separate crime scene.
Counsel said Smith attacked the male victim from behind by striking him with a shovel before slashing him across the face and arms with a knife in an “entirely unprovoked attack”.
He had also disguised himself by wearing a balaclava when he committed the “vicious and violent” assault, Ms Lawlor added.
His male victim had been left with scars on his arms face and back as a result of the attack and “was constantly looking over his shoulder in fear”, counsel continued.
After his arrest, Smith told gardai that it was “in his mind” to rape the female victim when he had her pinned to the bed and was trying to remove her underwear during an ordeal that lasted approximately 20 minutes.
Background reports indicated that Smith was assessed as being at “high risk of sexual re-conviction”, Ms Lawlor added.
“Mr Smith is an intelligent man but does not grasp the gravity of his offences and the long-term impact they have on his victims,” she continued.
Ken Fogarty SC, for Smith, told the court that the sentencing in this case had been in line with the guidelines.
His client’s guilty plea, Mr Fogarty said, had been significant, and had spared the victims a court appearance and the “rigours of cross-examination”.
Smith, Mr Fogarty continued, has also been treated for schizophrenia and “the logic of what he cited to the guards after he was arrested” had “clearly indicated he was not mentally correct”.
Ms Lawlor, however, told the court that there was “no evidence to suggest” that Smith “was harbouring under a mental illness at the time when these offences occurred”.
