Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 108

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Neutral Citation: [2008] IECCA 108

COURT OF CRIMINAL APPEAL 160-08

Finnegan J.

Budd J.

Herbert J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

R.S.

APPLICANT

Judgment of the Court (ex tempore) delivered on the 11th day of July 2008 by Finnegan J.

The applicant in this case pleaded guilty to one count of sexual assault contrary to section 2 of the Criminal Law (Rape) Amendment Act 1990 as amended by section 37 of the Sexual Offenders Act 2001. On the 5th May 2006 he called to Clontarf Garda Station and informed the Gardai present of the offence and that he wished to confess. The offence was committed against his nephew who was born on the 7th July 1999 and at the date of the incident was under seven years of age. He seeks leave to appeal against the sentence of three years imprisonment with the last year thereof suspended imposed on him.

The applicant in this case was born on the 31n October 1974. He is 33 years of age. It must be said in relation to him that he is a man of previous good character. He has been a good citizen. He is in continuous employment. He is a home owner. That is his background. Before the sentencing court and before this court there is a report of Mr Brendan Murphy a Clinical Psychologist and the court has taken that into account. The applicant attended him once each week from May 2005 to July 2007

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and thereafter once every two weeks. There are a number of stressors in the background we are told. These are his sexual orientation, excessive alcohol and stress at work. We are satisfied on Mr Murphy's report that the applicant did not previously express an interest in children, that he expressed and continues to express his shame, disgust and remorse and also that he is at the low end of risk in relation to children. Counsel on behalf of the applicant points out the absence of factors in this case which he says are relevant. They are relevant. They are not mitigating factors but they are factors which would aggravate that are absent. There is no question of grooming of the child in question. There is no evidence that the offence was premeditated, organised or planned. There were no threats or intimidation. They are factors in the matter although the court does not accept them as mitigating factors.

One further issue raised on the application arises out of the Victim Impact Statement and this is a report of Dr. Dempsey who suggests that there is an increased risk at adolescence that the victim will have some adjustment problems arising out of this incident. It has been suggested by counsel that this can only be taken into account if that outcome which is feared is certain beyond a reasonable doubt. The court is satisfied that that is not correct. By analogy, if there was a case of an ordinary assault where someone's eye was damaged and this left him with a risk that at some stage in the future he would lose that eye the assailant would not be sentenced on the basis the eye will be lost, he will be sentenced on the basis that he has created by the assault a situation of risk and that risk must be an element in assessing the seriousness of the assault in question. Likewise the position here. One consequence of what occurred is that there is an increased risk and the sentencing judge was entitled to have regard to that.

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Looking at the circumstances overall of the offence it is a serious offence. The maximum sentence which can be imposed is one of fourteen years. This is not at the upper end of seriousness but falls somewhere towards the middle range. One takes into account in this case the actual conduct which was involved. Also relevant is the age of the victim. The offence was carried out in breach of a position of trust within the family and that is also a factor. In relation to the applicant the court notes his early admission and his co-operation with the Gardai and his early plea of guilty. The court takes into account that in cases like this an early admission and an early plea is particularly valuable in that it spares the victim of the offence the trauma and worry about having to come to court to give evidence. He also co-operated with his psychologist and he sought help and the court has no doubt that his remorse is genuine.

Taking all these matters into account and looking at the nature of the offence this court sees the offence as meriting a sentence of within a range of perhaps three years to six years imprisonment. Taking that into account the learned trial judged imposed a sentence of three years, one year was suspended. In those circumstances this court is satisfied that the offence merited at least the sentence which was imposed which is borderline to being unduly lenient in all the circumstances of this case. In those circumstances there is no error of principle and this court will not interfere with the sentence imposed.

Accordingly the court refuses leave to appeal.

DPPvRS