The Court of Criminal Appeal has said judges in rape cases must start from the basis that a custodial sentence is the norm.
In a decision outlining sentencing principles in such cases, Mr Justice McCracken, sitting with Mr Justice Gilligan and Mr Justice O'Leary, said only unusual and exceptional circumstances would justify a departure from this norm.
The appeal court was satisfied there were such exceptional circumstances in the case of Gary Davis, who was aged 15 when he raped a 50-year-old man after a night's drinking.
Davis, now 18, of Kenilworth Lane, Rathmines, Dublin, had pleaded guilty to buggering the man at Dominic Street Flats, Dominic Street, Dublin, in November 2001.
In January 2003 he was given a three-year sentence which was entirely suspended on the basis of his remaining under the supervision of the Probation and Welfare Service for three years and in continuing treatment with a programme for adolescent boys who had sexually abused.
Last month the appeal court rejected a claim by the Director of Public Prosecutions that the sentence was unduly lenient and said, in light of the importance of the case, it would give its reasons later. On the evening of the incident, Davis, a 15-year-old girl and a 12-year-old girl had bought drink from an off-licence and gone to the younger girl's grandmother's flat.
Davis had drunk a lot of beer. Later, the grandmother returned with a male friend who also had had a lot to drink.
A dispute, which did not appear to be particularly serious, developed between Davis and the older man. Eventually the older man, who was quite drunk, left the flat to get a taxi home.
Davis went with him and, before he could find a taxi, pulled him into an area where containers were parked, attacked and raped him.
Giving the court's reasoning, Mr Justice McCracken said the sentencing judge must start from the basis that a custodial sentence would normally be imposed in rape cases.
However, there were cases of special and exceptional circumstances which were frequently related to the position of the accused.
In Davis's case, the trial judge had applied the correct principles.
David had pleaded guilty at a very early stage, made a full statement, and was extremely remorseful for his involvement in the crime.
A report from the Probation and Welfare Service was very positive about him, as was another report on his involvement in the group treatment programme. This treatment would not be available to him if jailed.
The report also stressed that Davis was 15 at the time of the offence and very confused about his sexuality. Since the offence, he had accepted his homosexuality and entered into a homosexual relationship, and his parents had accepted the situation and were supportive of him.
While the appeal court had every sympathy for Davis's unfortunate victim, it could see no useful purpose which could be served by jailing Davis.
He was on the Sexual Offenders' Register.
