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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v W O'M (Approved) [2025] IECA 102 (10 April 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA102.html
Cite as: [2025] IECA 102

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THE COURT OF APPEAL

 Neutral Citation: [2025] IECA 102

Record Number: 0282/2024

 

Edwards J.

Kennedy J.

Burns J.

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT

- AND -

         

WO'M

APPELLANT

 

JUDGMENT of the Court delivered on the 10th day of April, 2025 by Ms. Justice Tara Burns.

 

1.       This is an appeal against severity of sentence. On 27 June 2024, after a jury trial, the appellant was convicted before the Circuit Criminal Court of 17 Counts of indecent assault contrary to common law.

2.       On 1 November 2024, the sentencing judge imposed consecutive sentences of 16 months imprisonment on Counts 1 and 2, and 8 months imprisonment on Counts 3 and 17, with all other counts taken into consideration.  The final 12 months of the sentence was suspended for a period of one year on certain terms and conditions.

3.       The sentencing judge identified a headline sentence of 2 years imprisonment in respect of the offending reflected in Counts 1 and 2 and a headline sentence of 1 year imprisonment in respect of the offending reflected in Counts 3 and 17, those counts being sample counts on the indictment.  As consecutive sentences were imposed, the sentencing judge reduced the overall period of imprisonment by 12 months to take account of the principles of totality and proportionality. With respect to the mitigatory factors present in the case, he further reduced the overall sentence by another 12 months and then provided that the final 12 months of imprisonment be suspended for 12 months, thereby providing for an effective 3 year term of imprisonment.

Background

4.       The sexual offending in this matter took place over a 14 month period between January 1969 and March 1970. The appellant was a neighbour of the male victim and worked as a farmhand for the victim's father.  The victim was aged between 9 and 10 and the appellant was between 18 and 19 when the offending occurred.

5.       The offending behaviour generally involved the appellant chasing the victim around the farmyard asking him to show him his penis.  When the appellant was successful in catching the victim, he would squeeze him around his neck to such an extent that the victim felt paralysed and then the appellant would squeeze the victim's genital area very hard.  This type of indecent assault occurred on an almost daily basis when the appellant was working in the farmyard and was reflected in Counts 3 to 17 which were sample counts.  Similar behaviour took place when the appellant shared a bedroom with the victim for a short period.  If the victim threatened to tell anyone or tried to fight back, the appellant squeezed the victim's genitals even harder causing greater pain.  

6.       Count 1 related to a specific incident when the appellant and the victim were left waiting by the victim's father in his van.  The appellant requested the victim to show him his penis.  When the victim refused, a struggle ensued between them.  The appellant then forced the victim to masturbate him, in the course of which the struggle continued.  The incident concluded as the victim's father returned to the van. 

7.       Count 2 also related to a specific incident when the victim came across the appellant masturbating himself in the attic of the farmyard.  The appellant grabbed the victim and pushed him down onto bags.  Whilst holding the back of the victim's neck, the appellant got on top of the victim and began squeezing the victim's genital area for a period of four to five minutes causing the victim to scream as he was in significant pain. The victim found it difficult to breath with his head being pressed into the bags he was lying face down on.  When the victim managed to lift his head, he called for help.  The incident stopped when the victim's mother shouted for the victim.

Personal Circumstances

8.       The appellant had no previous convictions prior to the date of offending, nor had he come to Garda attention in the 55 year period since these offences occurred.  He had a long history of employment and owned a farm which he worked himself.  He was married with one adult daughter.

Grounds of Appeal

9.       By notice of appeal dated 29 November 2024, the appellant appealed against his sentence and set out his grounds of appeal as follows:-

1.       "In all the circumstances the sentence imposed on the 17 counts on the indictment was excessive.

2.       In all the circumstances the sentence imposed on counts 1 and 2 on the indictment was excessive, including in identifying 2 years [being the maximum] as the appropriate headline or starting point for both, having same run consecutively, and in reducing that overall 4 year sentence by only 12 months and the learned trial judge erred in law in imposing same.

3.       The learned trial judge erred in failing to take into account adequately or at all the mitigating circumstances.

4.       That the learned trial judge erred in giving too much weight to the Appellant's apparent lack of remorse in circumstances where he seeks to maintain his innocence.

5.       That the learned trial judge erred in passing an excessive sentences having regard to the circumstances of the case.

6.       The learned trial judge appears to have sought to penalise or be prejudiced against the Appellant in respect of a comment he made to Gardai when confronted with the charges.

7.       The learned Judge erred in giving insufficient weight to the advanced age of the applicant at the time of sentencing.

8.       The learned Judge erred in giving insufficient weight to the applicant's unblemished character since the time of these offences, being over half a century ago.

9.       The learned Judge erred in appearing to penalise the applicant for causing a full hearing and fully defending the case.

10.     The learned trial judge erred by failing to have adequate regard to the principles of proportionality and totality and the usual principles of sentencing, in imposing the said sentence."

Sentencing Determination

10.     On 1 November 2024, the sentencing judge imposed sentence.  With respect to the headline sentence which reflected the gravity of the offending and moral culpability of the appellant, the sentencing judge said:-

               "[There was] a significant age gap in terms of the physical, superiority, control, domination. The physical pain felt by [the victim] at the time and the manner in which that memory has haunted him... It was a breach of trust by [the appellant] of the [victim's] family...He was somebody they trusted to do significant work in the farm in the company of their son or on his own...[The appellant]... was a bully.  He was a bully in indecent circumstances.  He picked on a younger, smaller, weaker individual and felt he could do so with impunity at anytime, anyplace as he saw fit.  He could only have been aware his victim remained in fear and in constant anxiety, be it walking around the farm, be it going into the shared bedroom in the evening and this torture lasted for ...13/14 months...  He availed of a superior strength and control... The victim must have felt directly and constantly in fear during his farm work... [The] times when he was in his bedroom he was extremely vulnerable then and scared.  The [appellant] felt unassailable....I don't accept...that there wasn't ... dominion or control over the victim, there certainly was."

11.     With respect to mitigation, the sentencing judge said:-

               "He has been of good character since and before.  He is now at an advanced age and I accept that a custodial sentence would be particularly difficult for him... He has lost his reputation in the autumn of his life. I accept that.  His family, his community... The effects on his wife's health is something clearly I must take on board and the fact that she is dependent on him.... The four years [imprisonment] for a 74-year old man is a significant time in prison. It may not reflect the wrongdoing that occurred here but when somebody is 74 four years it is a lot of life and therefore the Court has to take the reality of that position of four years on somebody like [the appellant]. So, that has gone from six years - clearly the mitigating factors are significant but ultimately the biggest one, namely a plea and the avoidance of evidence and all of that, is absent. So be it. There's nothing aggravating about that. It merely is the lack of a mitigating ground.  I then intend to go further...to suspend one year of that balance of four years for a period of one year..."

Submissions of the Parties

12.     The appellant's submission was that the sentence imposed on him was excessive. In particular, it was argued that the headline sentence on Counts 1 and 2, which was at the maximum of what could be imposed for an offence of this nature, was too high and that the imposition of consecutive sentences was inappropriate. It was submitted that insufficient regard was had to the appellant's young age and his level of maturity at the time of the offending when assessing his moral culpability.  In addition, it was argued that insufficient regard was had by the sentencing judge to the considerations set out in The People (DPP) v. PH [2007] IEHC 335 which related to sentencing for sexual offences committed well in the past where a blameless life was lived thereafter, and that this failure resulted in the mitigating factors present in the case not being sufficiently reflected in the sentence imposed.     

13.     The respondent rejected that the sentence suffered from the infirmities asserted and submitted that it was a properly considered sentence which took account of all relevant factors and fell within the sentencing judge's discretion. 

Discussion and Determination

The headline sentence

14.     Criticism was made by Counsel on behalf of the appellant that the sentencing judge failed to have regard to the appellant's young age at the time of the offending when assessing his moral culpability. 

15.     The appellant was aged between 18 and 19 during the 14 month period when he incessantly subjected the victim to aggressive forms of indecent assaults.  Hence, he had reached the age of majority before the offending commenced and was not required to be treated as a child, without some evidential basis for so doing, for the purpose of sentencing.  There was no suggestion that the appellant suffered from a learning disability or had any difficulty in terms of his development.  Neither was there any evidential basis for suggesting that the appellant did not understand the nature of the indecent assaults which he perpetrated upon the victim.  Accordingly, a requirement to treat the appellant as a child or as not having reached full maturity when determining the headline sentence did not arise and an error on the sentencing judge's part in this regard is not established.    

16.     The appellant also submitted that an error arose by virtue of the nomination of the maximum sentence for the offending reflected in Counts 1 and 2 and the imposition of consecutive sentences.  The offending in this matter occurred over a 14 month period when a very young child was subjected to constant aggressive sexual offending around his home by an adult who occupied a position of trust within the victim's family.  The victim impact report displays a child who was terrorised by the appellant and a grown man who has suffered significantly arising from the abuse perpetrated on him as a child. 

17.     We are of the opinion that the headline sentences nominated in this matter was not an error in principle in light of the serious nature of the offending which occurred.  Furthermore, having regard to The People (DPP) v. MJ [2022] IESC 50, the imposition of consecutive sentences for an offence of this nature having regard to the maximum sentence applicable, was also not an error in principle and fell within the sentencing judge's discretion.  As stated by O'Malley J in DPP v. MJ when considering the maximum sentence of 2 years imprisonment for the offence of indecent assault and the appropriateness of imposing consecutive sentences for repeat offending:-

"30.  A sentencing judge must, of course, sentence the accused person by reference to the law applicable to the time of the offence.  However, it cannot be expected that the judge will put out of his or her mind everything now understood about sexual offending, or the way in which offences against children are now viewed by the law.  In other words, a judge in the 2020s cannot be expected to approach a case as if he or she was a judge of the 1970s. However, the fundamental principles of sentencing must nonetheless be applied.

               ...

38.     ... [W]here the modern judge is operating a legal regime that permits of a maximum sentence of two years only, it is entirely possible that the judge will feel that although the evidence demonstrates a series of offences of increasing seriousness, even the less serious may warrant a headline sentence of close to the maximum. That it not in itself illogical. Subject to what may be required by the totality principle, it is not necessary to artificially reduce the headline in respect of any individual offence.     

39.     It is true that the courts of this jurisdiction have often approached sentencing in a case of sexual assaults against one victim on the basis that concurrent sentences are more appropriate than consecutive, and that it has been said that consecutive sentences should be utilised "sparingly".  However, "sparingly" does not mean rare, or exceptional.   It is not necessarily an error in principle to impose consecutive sentences where the trial judge considers that concurrent sentences will not adequately reflect the gravity of sequential offending against once victim - see, for example the decision of the Court of Criminal Appeal in People (DPP) v. McKenna (No. 2) 2 IR 345.  The court has a duty to impose a sentence that fairly reflects both the gravity of the accused's behaviour and his culpability, and it may be that, in a given case of historical offending, concurrent sentences within the maximum parameters of the available sentence will not do so."

18.     Accordingly, we are of the opinion that an error of principle does not arise with respect to the headline sentences identified and the imposition of consecutive sentences.

DPP v. PH Considerations

19.     Charlton J in DPP v. PH set out considerations which a sentencing judge should have regard to when sentencing an offender for sexual offences committed well in the past, as including:-

"3.     The court might then usefully look at the date on which the offences were committed. A sentencing court, in structuring any sentence, is obliged to have regard to the subsequent life circumstances of the victim. In terms of settling on the final tariff of sentence, the offender's conduct in the intervening years will be of particular importance. If there was evidence of genuine repentance of the offending; if the offender had led a good life of family, or friendship, and work; or if the offender had sought in some meaningful way to make up for his abuse of the victims, this should be taken into account. The reason that I mentioned these factors is that part of the settled sentencing principles operated by the Superior Courts emphasise that while punishment must be meted out to an offender in order to ensure the social stability of the community, and that deterrence is a necessary aspect of sentencing policy, one of the ultimate goals of the sentencing processes is the rehabilitation of the offender. If he has managed to effect that purpose, in the intervening years between offending and sentence, by his own efforts, then, it seems to me, a discount, perhaps substantial in appropriate cases, of the relevant sentence might be contemplated.

4.       The age and health of the offender should be looked at. If the offender is so elderly, or so unwell, then prison will be a special burden to bear, the sentence should reflect how a particular term may punish him as much a longer term for a younger offender in reasonable health."

20.     The appellant submits that the considerations set out in DPP v. PH, which were referred to in the course of the sentencing hearing, were not applied by the sentencing judge.  This complaint is simply not made out.  A perusal of the transcript clearly reflects that the sentencing judge had regard to DPP v. PH and specifically had regard to the length of time which had passed since the offending occurred and the fact that the appellant had led a blameless life since then, working hard along the way. The sentencing judge also had regard to the loss of reputation which the appellant would suffer in the small community where he lived.  In addition, the sentencing judge had regard to the appellant's age and the effect a prison sentence would have on him. Having nominated headline sentences which accumulated to 6 years imprisonment, the sentencing judge reduced that to an effective term of imprisonment of 3 years imprisonment with an additional year subject to suspension.  We are of the opinion that the considerations set out in DPP v. PH were appropriately considered and applied by the sentencing judge and that all mitigatory factors in the case were adequately reflected by this reduction and approach and that an error in principle does not arise. 

Other grounds

21.     The complaint of the appellant that the sentencing judge took account of a comment the appellant made to the investigating guards when approached by them is not well made out as the sentencing judge stated that he specifically mentioned this matter to indicate that he was not taking it into account.  Neither is it established that that the sentencing judge penalised the appellant for availing of a trial; not accepting the jury verdict; and showing no remorse.  The sentencing judge simply indicated that the significant mitigation which one can avail of arising from a guilty plea and/or being remorseful was not present in this case. 

Conclusion

22.     The Court is of the opinion that an error in principle has not been established by the appellant in the sentence imposed upon him.  Accordingly, his appeal against sentence is dismissed.

 

Approved

No Redaction Needed

 

 

 

 

 

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