Prosecutor appeals 'unduly lenient' wholly suspended sentence for rape
A Norwegian man who was given a wholly suspended sentence for raping his girlfriend multiple times while she slept must wait to hear whether he will be sent to jail following an appeal by prosecutors.
Magnus Meyer Hustveit (25), had pleaded guilty at the Central Criminal Court to one count of rape and one count of sexual assault committed against his 28-year-old girlfriend between 2011 and 2012.
He was given a wholly suspended seven year sentence by Mr Justice Patrick McCarthy on July 13 2015.
Hustveit, whose former partner waived her right to anonymity so that his identity could be published, returned to his native Norway after sentencing.
In seeking a review of his sentence today on grounds that it was "unduly lenient", prosecuting counsel Mary Rose Gearty SC, cited a former Chief Justice when she said that it wasn't easy to imagine circumstances which would justify a non-custodial sentence for rape.
Ms Gearty said there were mulitple rapes in this case and a “shocking betrayel of trust”. It was unusual in that it combined a sleeping victim and a relationship.
Counsel said the victims trauma was increased by Hustveit's suggestions that she had lied about the symptoms from which she was suffering.
Hustveit had instructed his lawyers to cross examine her in relation to what she said about the symptoms, Ms Gearty said, when the disclosure of medical documentation was not forthcoming.
It made matters so much more distressing for her, Ms Gearty said, and lead one to question whether Hustveit was “filled with remorse” and had taken “responsibility for what he had done,” as had been submitted on his behalf.
Ms Gearty submitted that the judge erred by not aknowledging that this range of behaviour and class of conduct merited a lengthy period of custody.
Coupled with that was the judge's “flawed understanding” of the law, Ms Gearty submitted.
The judge operated on the basis that that if the conviction comes from of the mouth of the accused, he could eradicate any custodial element from one of the most serious offences on the statute book, she said.
Counsel for Hustveit, Caroline Biggs SC, said the exceptional circumstance in this case was “the all important email” Hustveit had sent to his former partner in which he aknowledged what he had done.
He pressed 'send' on the email becasue she had asked him, Ms Biggs said. She needed to understand exactly what he had done so she could get closure and move on with her life.
Hustveit had put his own interests aside and aknowledged that what he was doing may well lead to a prosecution when there wasn't a shred of evidence against him and no prospect of a charge, Ms Biggs said.
There was at its very highest the possibility of a sexual assault charge, she said.
The rational for the sentencing judge saying that he had never come across such a case did not relate to the act but the way Hustveit had dealt with his culpability, Ms Biggs said.
She said the law did not mandate that suspended sentences could not be afforded for rape.
The cumulative affect of the email and all other mitigating factors – his previous good character, young age, low risk of reoffending, general assitance to the authorities and plea of guilty – put this case out of the normative range.
She said Hustveit had gone through a “battery” of tests from Norwegian psychologists.
Ms Biggs said the DPP were seeking to punish her client for seeking to cross examine his former partner on her medical information. It had to be tested, she said, and the cross examination wasn't lengthy.
Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.
Mr Justice Birmingham said the court appreciated that hearings such as this caused stress for everybody.
He said Hustveit's status – who was present in court for the hearing – remained unchanged but that should not be taken as any hint or indication one way or another as to the likely outcome of the appeal.
Hustveit's victim, Niamh Ní Dhomnnaill, was also present in court with several friends and supporters.