A MAN WHO WAS 17 when he coerced a 12-year-old girl to perform oral sex on him has lost an appeal against what he claimed was the severity of his four-year jail sentence.
The defilement of the child occurred at a location in Co Cavan in 2017.
The man, who is now 23, pleaded guilty to the defilement of a person under 15 years of age at Cavan Circuit Criminal Court in June 2021.
Judge John Aylmer sentenced the then 21-year-old in January 2022 to five-and-a-half years’ imprisonment but suspended the final 18 months to incentivise his rehabilitation.
The man appealed the length of his sentence.
At the Court of Appeal today, Fiona Murphy SC, for the accused, challenged the sentencing remarks of the trial judge’s assessment of the aggravating factors in the case.
Ms Murphy submitted that while there was a significant age difference between the accused and the girl this was not an aggravating factor in the case “per se”.
Ms Murphy said the trial judge said there had been a “significant degree of premeditation” in relation to Snapchat and text messages from the appellant to the girl.
Counsel said that this amounted to the accused and his friend meeting up with the girl and her friend.
“He invites the victim to come with him but it’s no more than that,” said Ms Murphy.
Ms Murphy said that the judge also noted that the assault lasted a “significant period of time” but the evidence of the friend of the victim meant that “it could not have gone on for more than five minutes, or so,” said Ms Murphy.
Mr Justice John Edwards said the girl told the teen that she “did not want to do this and she reiterated this on several occasions”.
“He didn’t back off when he was asked to,” said Mr Justice Edwards.
Ms Murphy said she accepted that it had been a “very serious incident” and that her client had been persistent but that a pre-mitigation headline sentence of seven years was too high.
Mr Justice Edwards said that while the charge was one of defilement “it was close to rape”.
Ms Murphy said her client had rightly been sentenced but that there had not been a breach of trust.
Mr Justice Edwards said there had been a “significant number of years” in the age difference between the girl and the defendant, which the appellant had “exploited”.
Ms Murphy said her client had committed a one-off offence, entered an early guilty plea, engaged with gardaí and had no previous convictions.
Ms Justice Isobel Kennedy said it was noted in written submissions that the man did not believe he needed counselling or treatment “and this is a 12-year-old child”.
Ms Murphy said it had been “serious offending behaviour” but that her client’s family “took a firm hand with him afterwards”.
Ms Justice Kennedy said there had been “definite levels of coercion and he forced her head down. She said no several times and he insisted she continue”.
Monica Lawlor BL, for the State, said the trial judge was correct to place the offence “below the mid-point in the middle range” for such offences involving “coercion and vulnerability”. Ms Lawlor added that the accused had been the “director of operations” in the matter.
Counsel said the judge had regard to the teen’s age and circumstance before he set out the headline sentence.
Ms Lawlor said the judge had made no error of principle and that the appellant showed “no departure from similar case types”.
Counsel said that an age disparity, persistence and coercion was evidence in the case of a “power imbalance”.
In dismissing the appeal, Ms Justice Kennedy said the trial judge had given a “significant discount” for the early guilty plea in reducing the headline sentence from seven years to five and a half and then suspending 18 months to incentivise rehabilitation.
Ms Justice Kennedy said the court could not agree that because the accused was 17 at the time that this diminished his culpability.
The judge noted the “tender years of the child involved” who was a victim of coercion and the teenager’s persistence.
Ms Justice Kennedy said that a headline sentence of seven years was within the margins of judge’s discretion.
“We cannot agree the sentence is severe and accordingly the appeal is dismissed,” said Ms Justice Kennedy.
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