How Lord Chief Justice Sir Declan Morgan justified reduction of rapist's sentence
Lord Chief Justice Sir Declan Morgan cut Lucasz Artur Kubik's nine-year jail term by two years for raping a grandmother in an east Belfast car park based on the lack of evidence that the attack involved gratuitous violence.
The Lord Chief Justice referred to the three aggravating factors which were identified by the trial judge:
• The use of gratuitous violence: The Court of Appeal accepted that the applicant used violence in pinning the victim to the side of the car while committing the rape... It considered “regrettably” that this is the kind of violence which is often implicit in the commission of this serious offence and commented that gratuitous violence suggests a use of violence over and above that necessary to commit the rape as stated in the Panel’s recommendations: “No such feature was present in this case”.
• Significant mental consequences for the victim: The Lord Chief Justice noted again the unsatisfactory nature of the medical evidence introduced in the victim impact report.
“In the absence of a satisfactory report based on the relevant notes and records we cannot find such a factor (post traumatic stress disorder) present. We acknowledge, however, that an attack of this nature inevitably has a profound effect on the victim.
• Degradation of the victim. In that after the rape the applicant engaged in further sexual behaviour.
The Court accepted that there were material aggravating factors in this case... and that he had taken advantage of her by manoeuvring her away from the company of others thereby rendering her vulnerable. The Court, however, differed from the trial judge on the presence of gratuitous violence.
The Lord Chief Justice noted that the nature and circumstances of this offence indicated that it was an opportunistic and impulsive act contributed to in part by the consumption of alcohol. He said the only element of planning was the separation of the victim from the remainder of the party.
The Lord Chief Justice concluded: “Rape is a very serious offence. It rightly invariably carries a significant sentence of imprisonment for the perpetrator. It does not follow, however, that every perpetrator represents a significant risk of serious harm by the commission of similar offences. Each case must be assessed robustly on its own merits. We consider that it has not been demonstrated in this case that there is a significant risk of serious harm from similar offending.”