A MAN has failed in an appeal against his conviction for the rape of an 85-year-old woman suffering from Alzheimer’s disease but has succeeded in having the last two years of his 21-year sentence suspended.
The Court of Criminal Appeal yesterday found that there had been an error in principle in the sentence imposed on Simon McGinley (37), who was jailed for 21 years by Mr Justice George Birmingham in July 2009 after he was convicted of rape by a Central Criminal Court jury.
McGinley, Latlorcan Court, Monaghan, had pleaded not guilty to raping the then 85-year-old woman at her Co Monaghan home on June 16th, 2008.
The court heard that McGinley subjected the woman to a rape lasting several hours, having knocked at her door at midnight and grabbing her by the arm when she answered the door.
He was previously sentenced to 12 years in prison in 1998 for raping a 13-year-old girl who was at the centre of the Supreme Court action on abortion known as the “C” case.
Aileen Donnelly SC argued that Mr Justice Birmingham had placed no emphasis on rehabilitation when imposing sentence, despite the fact it was clear drink had been an issue and that it was in the public interest to deal with the impact alcohol had on such offences.
Mr Justice Liam McKechnie, with Mr Justice Declan Budd and Mr Justice Michael Moriarty, said the court found that the trial judge had not offered sufficient scope for rehabilitation. Although there was no doubt this was a “horrific” offence, the appeal court had to be conscious of the opportunity for rehabilitation in every case, “no matter how bad”.
Mr Justice McKechnie said that “with a great deal of misgiving”, the court had concluded that the last two years of the 21-year sentence should be suspended in the hope McGinley would reintegrate himself into society and reform his criminal behaviour to the advantage of both himself and society.
Earlier in the day, the three-judge court determined that an appeal brought by McGinley against his conviction for rape was without substance.
Ms Donnelly had submitted that the trial judge erred in principle by failing to convey the “very essence” of the defence case to the jury and by ignoring a request from lawyers for McGinley to do so. She told the court that Mr Justice Birmingham made a “huge error” in failing to accede to a defence requisition to highlight inconsistencies between a deposition given by the victim and other evidence before the court, in particular evidence concerning the identity of the attacker and the timescale of the attack.
Tom O’Connell SC, for the State, said the trial judge had “scrupulously and fairly” set out the factual conflicts in the case, and a request from the defence to set out the charge in a different manner was “besides the point”.