The wholly suspended sentence handed down to a man who admitted to raping his eight-year-old niece when he was 14 after he had viewed pornography has been quashed on appeal.
The man – who is now 21 but cannot be named to protect the identity of the victim – will now serve two-and-a-half years behind bars after the Court of Appeal ruled the original non-custodial term had been unduly lenient.
He had pleaded guilty to sample counts of rape, contrary to Section 4 of Criminal Law (Rape) Amended Act, and sexual assault, contrary to Section 2 of the same Act, at various dates and locations in the south of the country between May 2016 and April 2019.
At the Central Criminal Court last April, he also pleaded guilty to a single count of using technology to facilitate the sexual exploitation of a child, contrary to Section 8 (1) of the Criminal Law (Sexual Offences) Act.
The Director of Public Prosecutions (DPP) later appealed the non-custodial sentence he received from Ms Justice Deirdre Murphy.
In a judgement delivered on Tuesday by Ms Justice Isobel Kennedy, the Court of Appeal said it agreed with the DPP and was quashing the original sentence.
The court ruled that the sentencing judge had “erred in suspending the entirety of the sentence and in failing to include a custodial element”.
The three-judge court also noted that the victim was of "tender years" at the time of the offending and that the respondent had made an "insidious" threat to "turn his sexual attentions to her younger sister" if she did not comply with his demands.
Imposing a new headline term of seven-and-a-half years, Ms Justice Kennedy said the sentence was being reduced by one third to take into account the mitigating factors in the case including the respondent’s autism diagnosis and his age at the time of offending.
Ms Justice Kennedy also explained that the court had decided to suspend the final two-and-a-half years of the term to encourage the continued rehabilitation of the man, who was taken into custody after the judgment was delivered.
“As we have stated, there are considerable mitigating factors present. Moreover, we have received updated documents on behalf of the respondent, confirming that he is on the autistic spectrum, that he continues to regularly attend counselling and has attended an IT course,” the judge added.
The man had claimed he had been acting out scenes from pornographic material he had viewed when he carried out the attacks. He also said he had been watching pornography since he was nine years old.
Last October at sentencing, Ms Justice Murphy said the case had highlighted the dangers posed to society of children accessing explicit adult material.
But at the Court of Appeal last week, John Fitzgerald SC, for the DPP, said there was a risk that sex offenders who use pornography could now claim that they were vulnerable and a victim of a "societal problem".
Mr Fitzgerald told the court that the abuse “came to light” after the complainant’s mother discovered explicit messages to her daughter which had been sent by the respondent via a gaming app.
The court was also told the man had threatened his victim with similar assaults against her younger sister if she told anyone about the attacks.
Mr Fitzgerald said it was “the wholly suspended aspect of the matter that the Director has a concern with”.
He said it was “impossible to reconcile” the five-year suspended term with custodial sentences handed down in similar cases and that the DPP was looking for a term of imprisonment “in the region of nine years”.
The assertion by Ms Justice Murphy that pornography was a societal problem and something “we have to get to grips with” had, counsel said, mitigated the respondent’s “blame for the offending”.
“As a matter of principle, the Director has a concern with that,” Mr Fitzgerald explained.
He said users of pornography who were before the courts could now claim “I am vulnerable and a victim of a societal problem”.
“It is not explicitly said, but that is how I read it,” Mr Fitzgerald told the three-judge court.
Elizabeth O’Connell SC, for the respondent, said her client has been diagnosed with autism and required treatment for the condition, adding that “treatment outside of prison is better than treatment in custody”.
Ms O’Connell also told the court that background reports requested by the sentencing judge indicated the man was “psychologically vulnerable” with “poor resources for coping with life’s difficulties”.
Describing her client as a “young person with limited ability to cope with adversity”, she noted custody was “not the same for someone who is young and developing into an adult”.
Ms O’Connell also told the court that there had been four different sentencing hearings and that Ms Justice Murphy’s request for background reports before imposing her noncustodial term had been “entirely rational”.
“This suspended sentence was on the table from the first date,” she added.
During submissions, Court President Mr Justice George Birmingham observed the sentence imposed by Ms Justice Murphy had been “out of the norm”.
“Entirely suspended sentences are very rare indeed,” said Mr Justice Birmingham, who was sitting with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800 77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help.
In the case of an emergency, always dial 999/112.