THE FULLY SUSPENDED sentence handed down to a domestic abuser who sexually assaulted his then partner’s young daughter in his long-distance truck was too lenient, the Court of Appeal has found as it sent him to jail for two and a half years.
The man (33) cannot be named in order to protect the identity of the victim, who was aged between 12 and 13 at the time of the offending.
The man admitted the abuse just one day after a jury had been sworn in to hear the case at Wicklow Criminal Court, which was due to be heard before Judge James McCourt in July last year. The plea was entered on a full facts basis, where the complete nature of the offending was heard.
The man pleaded guilty to sexually assaulting the girl by touching her private parts in the truck’s cabin at an unknown location within the State on 19 August 2016. Three other charges of sexual assault alleged to have occurred at the family home were withdrawn by the State.
Judge McCourt sentenced the accused to two-and-a-half years’ imprisonment but discounted six months for mitigating factors before suspending the sentence in its entirety. The maximum sentence for sexual assault if the victim is under 17 is 14 years.
The State appealed the sentence as being unduly lenient.
In re-sentencing the man today, Mr Justice John Edwards said the court would quash the original suspended sentence and jailed the man for two-and-a-half years.
Mr Justice Edwards said the court did not accept the custody level was not reached. “In fact, it was well exceeded,” he said.
The judge said that it was not an isolated incident but ones that involved an element of grooming, the use of alcohol and a breach of trust regarding the man being in loco parentis of the girl.
Mr Justice Edwards said the court would re-sentence the man to a headline sentence of four years’ imprisonment but then reduced it by one year in mitigation and suspended the final six months.
The man had been living with the girl and her mother at the family home where the offending began before it extended to an incident in the truck where he touched her breasts. The man also has a son with the injured party’s mother.
The sentence hearing was told the man had two previous convictions relating to domestic violence legislation.
The State appealed the sentence as being unduly lenient and submitted that the pre-mitigation headline sentence of two-and-a-half years identified by the judge was in error.
The State submitted that “while the offending may have been at the lower end of sexual offending, it was by no means trivial and had included a series of escalating events, in a fashion that would normally come under the description of grooming”.
In his written submission to the Court of Appeal, James Kelly BL, for the State, said the offending “had not just a direct effect on the victim but an indirect effect in that it brought about the complete fracturing of a family”.
At the Court of Appeal today, Lily Buckley BL, for the State, said the headline sentence had been set too low and that too much weight was given to mitigating factors in the case.
Buckley said that one of the four incidents was not referenced at all by the trial judge in his sentence summary.
Counsel said that the offending was detected by the complainant’s mother after the man sent a sexualised photo to the injured party.
Buckley said that on another occasion at the family home the man rubbed sun cream into the girl’s back after she had taken alcohol and then rubbed her breasts.
Buckley said it had been the “last available opportunity when the guilty plea came forward”, adding that the man had two previous convictions and limited remorse or insight into his offending.
Michael J Durack SC, for the appellant, said the offending was at the lower end of the scale and that the accused had moved into the home in 2014 but there had been no complaint about him until 2017.
Durack said the word “‘horseplay’ may not be appropriate” but the man characterised his behaviour as being as such and had not believed it to be criminal offending.
“Multiple offending raises the gravity of offending. He gave her alcohol, uses the pretext of the sun tan lotion and then takes the opportunity to fondle and rub her breasts,” said Mr Justice Edwards.
Mr Justice Patrick McCarthy said it was “very hard” to justify the headline sentence and its full suspension.
Durack said it benefited society at large to give an opportunity to a working man of 14 years who was still in employment and had a new partner.
Mr Justice McCarthy said there was a punitive element to be considered and that “pure punishment and deterrence arises as well”, describing the man’s actions as being those containing “moral turpitude”.
Durack said the sentence may have been “lenient but not so out of the scale of things to warrant interference by this court”.
In re-sentencing, Mr Justice Edwards said serial sex offending of the nature before the court had recently had its maximum sentence increased by the Oireachtas to 14 years’ imprisonment.
Mr Justice Edwards said the man was “not of previous good character, had not been significantly co-operative with gardaí and had attempted to diminish his behaviour”.
“We accept that a portion of the sentence should be suspended but we believe this exceeded the margin of appreciation. A wholly suspended was unjustified due to the seriousness of the offending,” said Mr Justice Edwards.
Mr Justice Edwards said the sentence was “substantially outside the norm” and then identified four years as a headline sentence, discounting one year in mitigation for the accused’s plea and work record.
He further suspended six months of the remaining three years to incentivise rehabilitation and ordered that the man be put under post-release supervision for two years after his sentence is served.
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