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Court of Appeal

Child rapist who led 'double life' has sentence increased by two years

The DPP held the view that the sentencing judge erred when handing down the earlier sentence for 72 counts of rape and sexual assault.

A CHILD RAPIST who led a “double-life” while raping and sexually abusing his former partner’s daughter over the course of a decade has had his jail term increased by the Court of Appeal.

The man (78) abused the child over a ten-year period while he was in a relationship with her mother, beginning when the child was aged around eight or nine.

He was jailed for seven years but cannot be named to protect the victim’s anonymity.

At his sentencing in November of 2021, the Central Criminal Court heard that the man abused the child whenever her mother was out of the family home, including on one occasion when she was in hospital.

The man was convicted following a trial in June 2021 of 72 counts, including counts of rape, oral rape, anal rape and sexual assault at locations in the Midlands on dates between May 17, 1991 and May 16, 2001. He had pleaded not guilty to all charges and had no previous convictions.

The State successfully appealed the sentence on grounds of undue leniency and today Mr Justice John Edwards said the Court of Appeal would increase the man’s jail time by two years

Mr Justice Edwards said the sentencing judge, Mr Justice Paul McDermott, identified a 15-year headline sentence before mitigation, which resulted in a final sentence of ten years, the final three years of which were suspended.

Mr Justice Edwards said the DPP’s view was that the offending was in the category of more serious cases and that the sentencing judge erred in giving insufficient weight to the aggravating factors, which included the period of time of offending, the age of the child at the time of the assaults and the breach of trust committed by the male.

The State had also argued that the sentencing judge had given too much weight to the male’s previous good character, lack of any convictions and his old age.

At a previous appeal hearing, Philip Rahn SC, for the State, addressed the male’s lack of previous offences and agreed with Mr Justice Patrick McCarthy who said the suggestion at trial was the man had been “leading a double life”.

Today, Mr Justice Edwards said the court did not believe there was an error made by the sentencing judge in identifying 15 years as a headline sentence and that physical and mental frailty had to be taken into account by the sentencing judge.

Mr Justice Edwards said that health, reduced life expectancy, a more onerous incarceration, fear of intimidation or threats from younger prisoners and concern for an elderly partner could all be aspects taken into account when sentencing an elderly person.

However, these factors cannot “dominate nor override” other aggravating factors in the case, said Mr Justice Edwards, who noted that in cases of people over 70 receiving a significant sentence it could mean that they spend the rest of their lives in prison in “what may amount to a life sentence”.

Mr Justice Edwards added that the elderly are “frequently low-risk”, are relatively crime free after historical offences and that there was often little need to consider rehabilitation.

The judge said that while the defendant was now just shy of his 79th birthday he had caused his victim a “profound harm and she carries that with her to this day”.

Mr Justice Edwards said the man had a long period of being of good character but that it carried “little weight” in cases of prolonged offending. The judge also noted that mitigation on grounds of a guilty plea was not available and that he could have spared his victim undergoing cross-examination.Mr Justice Edwards said the court was satisfied that the man had received an “inappropriately large discount” from the headline sentence that was “substantially outside the norm” which the court would quash.In re-sentencing the man, Mr Justice Edwards identified a headline sentence of 14 years but only discounted one year for his absence of previous convictions, his good work history and for being a previously supportive family man.

In noting the man’s physical ailments, cognitive difficulties, age and isolation, Mr Justice Edwards then suspended the final four years of the sentence, leaving nine years imprisonment to be served.

In her victim impact statement, the woman said the abuse “caused me torture and stress in my life”.

The woman said that from the time it started, she felt terrified and in shock. She said her childhood was taken away from her.

She said she could not work full-time as she never felt comfortable leaving her children with anyone other than her husband in case this might happen to them. She said that as a result of what happened, she no longer had a relationship with her mother.

The woman said she no longer feels the shame that came with the offences as she knows now it was not her fault and it should never have happened.

She said that now that “this horrible abuse” has been acknowledged, she can finally breathe and live her life as she should always have been able to live it.

***** Conviction Appeal *****

In his separate, failed conviction appeal last month, the male argued that there had been inadequacies in the case against him because gardaí failed to take statements from family members and that two of those – a grandmother and an uncle – were now deceased.

Ronan Munro SC, for the appellant, had argued that the gardaí had also failed to seek out and preserve further evidence, making the case “stale and vague”.

Munro further submitted that the trial judge, Ms Justice Carmel Stewart, failed to adequately distinguish the effects of delay on the case and failed to direct the jury that shortcomings in the investigation could give rise to a reasonable doubt.

In that judgement rejecting the appeal, Mr Justice Edwards said: “Even if it was to be accepted that the obligation spoken of, i.e. to seek out evidence is not confined to physical or real evidence and extends to other types of evidence, including potential witness testimony, there must be limits to this”.

The judge said that the appellant’s counsel was unable to point to any case law to say that the obligation on gardaí in their investigation extended to interviewing all possible witnesses as to collateral matters, “and even if so, where the line was to be drawn in that regard?”

“In our assessment, there has been a complete failure by the appellant to meaningfully engage with what the evidence was at his trial. Indeed, the matters complained of by counsel for the appellant in this case represent no more than a missed opportunity to explore if the potential witnesses in question, who were not interviewed, might have something material to say,” said Mr Justice Edwards.

“There was nothing put before us to suggest the position, one way or the other, in so far as the grandmother and uncle are concerned. It is entirely speculative as to whether they would have had anything of relevance to say, much less something to say to assist the appellant,” he added.

Mr Justice Edwards said it was known from the Book of Evidence of the existence of potential witnesses but the defence themselves did not seek to interview them.

“It is untenable to suggest that the appellant was irredeemably prejudiced by the failure of any garda to take statements from those witnesses, or any of them,” he said.

“That it was a missed opportunity falls far short of any suggestion that they lost the real possibility of an obviously useful line of defence,” he said.

Mr Justice Edwards said the trial judge gave an appropriate delay and corroboration warning and rejected the suggestion that the complainant’s evidence was vague. He then dismissed the conviction appeal.

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