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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. C. (R.) [2008] IECCA 82 (30 May 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_82.html
Cite as: [2008] IECCA 82
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Neutral Citation: [2008] IECCA 82
Kearns J.
Herbert J.
de Valera J.
[Record No. 53 CJA/2008]
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
RESPONDENT
JUDGMENT of the Court (ex tempore) delivered the 30th day of May, 2008 by Kearns J.
In this case the respondent pleaded guilty in Dundalk Circuit Criminal Court on 29th January, 2008 in respect of three sexual assaults carried out on a very young boy who was at the time in a very vulnerable
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state, because first of all he trusted the respondent who had befriended his mother and the serial offending only came to light on a particular occasion when the mother had left her young son with the respondent, who I think is now aged 58 years. She came back unexpectedly with a meal for the respondent and walked into a sitting room where ostensibly both the boy and the respondent were watching golf on television but she immediately appreciated that a sexual assault was in progress involving touching and making contact with the genitals of the young boy. This was not the first time this had happened and it is clear from the reports before the Court that these episodes had a very traumatic affect on the victim, who was living with his mother and three brothers.
His father sadly had died of a heart attack two weeks before the last of these assaults and accordingly it could not have come at a worse time and has affected him very badly because we have evidence that he not only was sexualised at an earlier stage as a result of these assaults but also that he became very withdrawn and aggressive in his interactions with others in school and he was particularly unfortunate because he was the victim of some other sexual assault three years previously when a fourteen year old boy sexually abused him. This I hasten to add did not involve the respondent in any way. There was no prosecution arising out of that earlier episode.
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The victim has needed a lot of help since this series of assaults and he is fortunate that his mother was there for him and has helped him in every way possible and has given him a great deal of support, and is understandably deeply outraged by the breach of trust that this series of offences represent.
An application brought on behalf of the Director in this way to review the sentence on grounds of undue leniency can only succeed if some error of principle is established or if the sentence is a substantial departure from what is appropriate. There are two factors in this case which persuade the Court that there was a failure to take sufficiently into account two aspects of this case.
One is the violation of trust which undoubtedly took place in this case and which therefore made the particular offence all the more devastating for its victim who has had obviously great difficulty in coming to terms with it, but perhaps most significantly the Court is satisfied that the sentencing judge did not adequately take into account this particular man's past history of sexually offending with young boys when imposing the particular sentence. He has a number of previous convictions. He has convictions for six sexual offences since 1976 during which period he received prison sentences of between five and eight years.
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This Court has available to it a report from a Probation Officer who has looked into this whole matter very carefully and he has concluded on the basis of his previous offending that there remains a significant risk of further offences being committed by this man. That is a very serious matter and the learned trial judge did try to meet this particular difficulty by providing for a seven year post-release supervision order but there are obvious difficulties as to how that would work and how it would be enforced and so on.
Mr. O'Hanlon has made, as one would expect, a very able submission on behalf of the respondent pointing out that he has moved away from the area where his victim lives and is in effect at the other end of the country and is doing his best in difficult circumstances to cope with his alcohol problem. He lives or did live up to the time of the court case in a rundown bedsit in the southern part of the country and he undoubtedly is a lonely and solitary individual, whose only associates now appear to be a small number of individuals he befriended while attending an alcoholic treatment centre in the City in which he was residing up to the time of the case.
The gravity of these offences in this particular context has persuaded the Court that sentence of six years rather than four years should have been imposed in this case and the Court will substitute that
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sentence for the sentence which was imposed and will vary the seven year post-release supervision order to five years post-release supervision.