A DUBLIN MAN jailed for having sex with his mentally impaired cousin, has had his five year sentence reduced to an 18 month jail term on appeal.
The 53-year-old Dublin man, who cannot be identified for legal reasons, had pleaded not guilty at Dublin Circuit Criminal Court to eight counts of unlawful sexual intercourse with his mentally impaired female cousin at different locations between 1998 and 2003.
He was found guilty by a jury and sentenced to five years imprisonment on each count, to run concurrently, by Judge Patricia Ryan on 8 February 2013.
His trial court heard that he had admitted to being in a sexual relationship with his female cousin but claimed to have no knowledge that she was mentally impaired.
The married man and father-of-one had been granted bail in July 2013, pending his appeal against conviction, which was dismissed last month.
He then presented himself to gardaí on the southside of Dublin for the purpose of being returned to custody.
He successfully appealed his sentence today and was accordingly re-sentenced to three years imprisonment with the final 18 months suspended.
Giving judgment, Mr Justice Alan Mahon said the Court of Appeal had viewed video recordings of the injured party’s evidence including the “limited extent” to which she was cross examined.
Mr Justice Mahon said the injured party was “quite articulate”, was able to give clear and precise answers to questions, and had good recall and memory going back a number of years.
The injured party had cared for her parents in their elder years and was trusted by her siblings to do so, the judge said.
She was capable, to a degree, of independent living and was able to travel by bus and train on her own, the judge said.
She had also had a number of boyfriends in the past and had had one for about five years at the time of the trial.
Mr Justice Mahon said it struck the court that she was a person with “a mild mental impairment” but “of course” her circumstances were well known to her cousin.
He was not mistaken as to her mental capacity, the judge said, and the fact that he abused her made this case a serious one.
The court was satisfied that the judge had erred in treating her mental impairment as an aggravating factor, the judge said, as had been submitted his barrister, Patrick Gageby SC.
Mr Justice Mahon said mental impairment constituted an ingredient in the offence and it must, by definition, be present.
But the mere fact that she was mentally impaired could not be treated as an aggravating factor in itself, he said.
The fact that she was functioning at a relatively high level was something that was required to be taken into account in assessing the seriousness of the offence and it was “unclear” that it was taken into account by the trial judge.
The more mentally impaired, the more vulnerable a person is and the greater the culpability of the offender, Mr Justice Mahon said.
Likewise, the less mentally impaired, the less culpable the offender.
Furthermore, the judge did not locate a starting point for the offence on the scale of gravity and did not indicate what allowance was being made for mitigation.
If, having allowed for those mitigating factors, Mr Justice Mahon said, it must reasonably follow that the starting point determined by the judge was considerably higher than five years.
He said the court was also concerned that the judge did not attach significant weight to the manner in which the man participated in the trial.
Her account had not been challenged and her cross examination was conducted in a humane manner having regard to her vulnerability, the judge said.
These were matters which could have significantly reduced the stress of proceedings for the complainant and it “deserved special recognition in sentencing”, he said.
As well as the man himself, Mr Justice Mahon said barristers Caroline Biggs SC, for the DPP, and Remy Farrell SC, for the then accused man, ought to be “complimented in this regard”.
Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, resentenced the man to three years imprisonment with the final 18 months suspended.
The sentence was backdated eight months to take account of time served.
He was required to enter into his own bond of €100 to keep the peace and be of good behaviour for a period of three years. When asked if he undertook to be so bound, he said “I do”.
As obliged by law, Mr Justice Birmingham told the man that he was on the sex offenders register and failure to comply with certain obligations attached to that, he would be committing a further offence.
“I understand, thank you,” he said.
In his unsuccessful conviction appeal, his barrister, Patrick Gageby SC, submitted that the trial judge erred in allowing the victim to give evidence via video link.
Mr Gageby said this amounted to “pre-determination” and once the trial judge decided that she could not give evidence in court, it was a “foregone conclusion”.
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