Court of Appeal dismisses appeal against suspended sentence for sexual assault, citing lack of evidence regarding settlement terms.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 185 Record No: 82/2025 Edwards J. Butler J. Collins J.

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

RESPONDENT V B.M.

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 15th day of July, 2025.

Introduction

1. This is an appeal brought by Mr. B.M. (i.e., “the appellant”) against the severity of the sentence imposed on him by the Circuit Criminal Court on the 26th of March 2025.

2. The appellant was charged with four counts of sexual assault, contrary to common law and as provided for by s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (“the Act of 1990”). These were Counts No’s 1 to 4 respectively on the indictment. On the 3rd of December 2024, Mr. B.M. pleaded guilty to each of these counts.

3. On the 26th of March 2025, the appellant was sentenced to a term of three years imprisonment with the final two years suspended upon certain conditions, in respect of Count No 1 on the indictment, with Count No’s 2, 3 and 4 being taken into consideration by the sentencing judge.

Factual Background

4. At the sentencing hearing of the 25th of June 2025, a D/Garda Clare Malone gave evidence of the sexual assault offences.

5. The offending occurred in 1999 in the months of June, July and August. During this period, the appellant and his two siblings came to stay at the complainant’s home, where she lived with her parents and two brothers. At this time the appellant was 15 years of age, and the complainant was 8 years of age. The appellant was the eldest of all the children and according to the complainant, he was tasked with working alongside her father. The complainant viewed him as an adult and would have done as he said. D/Garda Malone outlined that the appellant was trusted, given the family relationship.

6. The offending consists of four separate incidents of touching the complainant’s vaginal area either over or under her clothing. The first incident occurred while the appellant was babysitting the complainant. He grabbed the complainant’s vagina over her clothing for approximately 5 minutes, and at the same time he had his right hand down inside his own trousers. At the same time, the appellant’s right hand was down inside his own trousers.

The complainant stated that she knew this was the case as she could hear the elastic waistband being pulled up and she could also hear him at his penis. The second incident again involved the appellant grabbing the complainant’s vagina under her clothing and the complainant recalled this assault lasted for approximately 15 minutes. The appellant was also babysitting the complainant on this occasion. The third incident lasted approximately 10 minutes and involved the appellant grabbing the complainant’s vagina under her clothing. The fourth incident consisted of the appellant laying on top of the complainant, and she described feeling his erect penis on top of her. On this occasion, the complainant got free of the appellant and ran straight through the house and out to the back garden where dad was. She did not tell her dad about the incident; she was just glad to be away from the appellant.

Disclosures

7. In August of 1999, the complainant made disclosures to her mother about the incidents and thereafter there was a meeting involving the appellant’s parents, the appellant, the complainant and her mother. The appellant denied the allegations at the time. The appellant’s mother contended that the complainant had been having a bad dream, and that the appellant had just come in to see if she was okay.

8. Subsequently, the complainant attended her doctor and again disclosed the incidents. She also had interactions with a social worker at that point and a school chaplain, who wanted to organise counselling for her. This was not pursued.

9. A number of years later, the complainant became upset at her older brother’s 18th birthday, and she discussed the appellant’s abuse of her with a cousin, who encouraged her to write a letter to the appellant. She did this, and hand delivered it to his house.

Subsequently, the pair met, and the complainant asked the appellant, “why he did it”, to which he responded, “I don’t know, I’m just so sorry. Look at you, you’re all grown up now”. The appellant also informed the complainant on this occasion that he had kept her letter.

10. Subsequently, in February of 2023 the complainant made a complaint to An Garda Síochána, and a statement was taken from her in March of 2023. On the 21st of June 2023, the appellant was arrested by appointment. He was cautioned, detained and interviewed. Nothing of evidential value emerged initially. However, when the doctor’s notes were put to the appellant, he admitted to touching the complainant outside her underwear but denied touching her inside her underwear.

Victim Impact Statement

11. A poignant victim impact statement of the complainant was read in court by counsel. In it she recounts being abused at the hands of the appellant, referencing his breach of trust and his manipulation of her to satisfy his own sexual desires. She contended that his abuse of her had destroyed her childhood and had changed the trajectory of her life. She said that she had spent “almost 25 years in fear, guilt and shame, none of which was ever mine to bear. In contrast, you participated actively as a member of the extended family at all events and occasions.” Elsewhere in her said statement, the complainant added:

“A prisoner in my own mind even now, close to 25 years later. When I wake from sleep screaming in a panic, you are still at the end of my bed. [B.M.], let me summarise the consequences of your actions. There are times I wanted to leave this world. To take my own life and be free from the shame of being sexually abused by you. I've woken in the middle of the darkest nights, with the belief that your hands are still on the most intimate parts of my body as if it was happening all over again. I've been kept from sleep with the grip of your hands on my body.

I've re-lived the sexual abuse countless times over the last 25 years. I've smelled the pong of your breath while walking my dog or walking to work. These intrusive memories flooding back from the past, disrupting the present, inflicting further trauma on me. You've intruded not only on my body, but into my daily life, into my sleep and into my childhood home. My family, my husband and my children more so, have had to bear the brunt of my mis-directed anger. Anger that is meant only for you, for what you did, for the sexual abuse that you have inflicted on me. I have no way to calculate the incredible amount of time this has taken from my life, time which I will never get back. A childhood, I will never get back. What you took from me; I will never get back.”

Further referencing her physical and psychological sequalae, the complainant also stated (inter alia):

“For me, I've endured mental and physical illness because of your actions. Panic attacks, anxiety, depression and CPTSD. They're just some of the labels that I'm assigned these days. The memories, the impact and the horror are all mine for the rest of my life.”

Personal Circumstances of the Appellant

12. The appellant was born on a date in May 1984. He was 15 years of age at the time of the offending and 40 years of age at the time of sentencing.

13. The appellant has two children and is married to his partner of twenty years. He works for a living as a tradesman.

14. D/Garda Malone confirmed that the appellant had no previous convictions and had not come to Garda attention in respect of any other matter.

15. Counsel for the appellant outlined during the plea in mitigation that an apology was offered in 2009, which had subsequently been repeated and was further repeated in court. At the same time as the criminal proceedings, solicitors acting for the complainant contacted solicitors for the appellant in order to discuss civil remedies the complainant might have. A settlement was agreed, and the complainant accepted the apology proffered by the appellant at this time. The sentencing court was told by the appellant’s counsel that the specific terms of his client’s settlement agreement with the complainant were otherwise confidential, and he was not at liberty to disclose them to the court.

Sentencing Judge’s Remarks

16. On the 26th of March 2025, the judge in the Court below passed sentence on the appellant. The sentencing judge noted the factual background of the case as described in evidence by D/Garda Malone. He then noted that the maximum sentence available to the Court was 5 years imprisonment.

17. In relation to mitigation, the sentencing judge took the following into account:

“First of all, when he committed these offences, this defendant was a child himself and obviously that has consequences when it comes to sentencing. I'm aware of the provisions of the Children's Act and the policy of the Children's Act. Obviously, I must also take into account that basically these events occurred back in 1999 and that's probably getting close to -- it's more than 25 years ago at this point. Excuse me. So, I must take that into account. I must also take into account the plea. I must take into account the apologies offered. I must take into account that he has no record of conviction whatsoever. And I must also take into account that I think on the basis of his previous behaviour up to now, it's probably unlikely that he'll reoffend to any great degree in the future. It seems this defendant is a plumber and contributes to his family and to society. In passing and it's been mentioned that there has been some form of civil accommodation reached in this case. That's a matter for the parties. Obviously, they have thought this is a course they should adopt. And it has been adopted.”

18. The sentencing judge continued:

“It's troubling that he did it four times. That is the troubling issue in the case. It could be seen as somewhat cruel. Now, in deciding what to do about him, I would ask myself if this case had been dealt with immediately, or if a case such as this had come before this Court when a defendant was 15 or 16. What would this Court do in relation to a child who had behaved in this way? And obviously, the Children's Act says that the first, I suppose, purpose in sentencing a child, is to achieve rehabilitation and change. The question if he was a 15-year-old or a 16- year-old boy before me now, and adopting that sort of course let's say to rehabilitate him. Would the Court give a custodial term to aid that process? And it seems to me, it's very hard to envisage these situations, without having a case in front of it. But it seems to me it would be unlikely that that 15-year-old boy would escape without some period of detention. Because the repeated nature of the offending behaviour is what troubles the Court. I think one or two times, would be different to three or four times. So, in this case the situation is that, basically, he's not before the Court when he's 15 or 16 in this case. He is in his 40s I believe, at this point. So, the sentence I would be imposing upon him would be for punishment at this point. Does he deserve punishment for what he did when he was that age? Was his behaviour so reprehensible, even taking into account his age at the time? And this has troubled me because of the age factor principally. If he was an adult man and he did what happened or he committed the -- he would be going to jail for probably three or four years. As simple as that. Probably more in relation to a child. The question is, does he deserve a prison term now for what he did when he was 15? That is the question. And I must say that it's a difficult question. And I've come to the conclusion that he does deserve some prison term, for what he has done. And obviously, it won't be as severe as he would if it was an adult.”

19. Ultimately, the sentencing judge imposed a sentence of three years imprisonment with the final two years suspended in respect of Count No 1. Count No’s 2, 3 and 4 were taken into consideration by the sentencing judge.

Notice of Appeal

20. By a Notice of Appeal lodged the 9th of April 2025, the appellant now appeals to this Court against the severity of the sentence imposed by the Circuit Court. In support of this application, the appellant has advanced nine grounds which are as follows:

1. “The trial judge erred in law by failing to give adequate regard to the sentencing principles which apply when sentencing an adult for offences committed as a child.

2. The trial judge erred in law by setting a headline sentence of 3 years, in which circumstances where the maximum penalty for an adult offender was 5 years at the time of the offending.

3. The trial judge erred in law by failing to give adequate regard to the principles of the Children Act 2001.

4. The trial judge erred in law by failing to give adequate regard to the otherwise unblemished record of the accused, the offending having taken place 25 years ago.

5. The trial judge erred in law by failing to give adequate regard to the guilty plea of the accused.

6. The trial judge erred in law by failing to give adequate regard to the remorse shown by the accused and the fact that there were a number of apologies over the years, the most recent of which was accepted by the injured party.

7. The trial judge erred in law by failing to give any regard to the compensation agreement between the accused and the complainant, said agreement having been prompted by an approach from solicitors representing the injured party to the accused’s solicitors.

8. The trial judge erred in law by failing to give adequate regard to the personal circumstances of the accused and the effect that a custodial sentence would have on the accused and his family.

9. Where the effective sentence imposed on the accused was one years imprisonment, far greater regard should have been given to the possibility of a community based sanction.”

Submissions on Appeal Appellant’s Submissions Grounds No’s 1 and 2

21. The substance of this complaint is that the trial judge erred in law by failing to have adequate regard to the sentencing principles which apply when sentencing an adult for offences committed as a child.

22. The sentencing judge indicated that he would impose a sentence of 3 to 4 years imprisonment had the same offending been carried out by an adult man. It was submitted that the sentencing judge erred here by placing the offending at the highest level of sexual assault, and that he ought to have reduced that headline sentence far more significantly given the age and level of maturity of the appellant at the time of the offending.

23. Counsel for the appellant referred to People (DPP) v. J.H. [2017] IECA 206 and submitted that the mitigating factors referenced in that case were present here. It was submitted that the sentencing judge failed to reduce the appellant’s sentence in accordance with the sentencing principles set down by the higher courts.

Ground No 3

24. The appellant complains that the sentencing judge failed to have adequate regard to the provisions of the Children Act 2001 (“the Act of 2001”) when he assessed the sentence that would have been imposed on the appellant had he appeared before the courts as a

15 or 16-year-old, and in opining that he would have imposed a custodial sentence.

25. It was submitted that the sentencing judge ought to have had due regard to the principles within the Act of 2001, and the maturity of a juvenile that had only reached the age of 15 approximately one month prior to the start of his offending.

Ground No 4

26. It was argued that the sentencing judge ought to have had greater regard to the passage of time between the offending and the reporting to An Garda Síochána (which was approximately 25 years) and the conduct of the appellant in the intervening time. Counsel for the appellant had asked that it be noted that the appellant had no previous convictions, nor had he come to the attention of the Gardaí in the twenty-five years following the offending. It was also outlined that the appellant has a good work history and has two children and a wife, for whom he is the sole breadwinner and person responsible for paying the mortgage on the family’s home.

27. It was submitted that the appellant having rehabilitated himself, a custodial sentence should have been the last resort.

Grounds No’s 5 and 6

28. The substance of the complaint made in both is that the sentencing judge erred in law by not expressly indicating the degree to which he was discounting for the early guilty plea and the expression of remorse. This court has been referred to People (DPP) v. J.D.

[2017] IECA 144 as providing some support for this complaint.

Ground No 7

29. While there was no evidence as to the specifics of the settlement entered into, counsel for the appellant contended that it was reasonable to infer that it very likely included payment of a large sum by way of compensation. He submitted that the personal circumstances of the appellant, which had been established in evidence, i.e., that he was a plumber, that he has a wife and two children, and that he is the sole direct financial contributor to a mortgage on the family home, meant that a payment of a large sum by way of compensation, that required the help of family and friends to assemble, would certainly have imposed a high degree of hardship upon the appellant and his family. It was submitted that the sentencing judge should have been prepared to have greater regard to those circumstances than he was ostensibly willing to do, and that to have failed to do so was an error.

30. Counsel for the appellant referred us to People (DPP) v. Stephen Duffy [2023] IESC 1 as supporting his argument on Ground No 7.

Ground No 8

31. The appellant also argued that the sentencing judge failed to consider the effect that a custodial sentence would have on the appellant in his particular circumstances. It was submitted that the imposition of a custodial sentence was particularly difficult for the appellant given his personal circumstances at the time of sentencing. It was submitted that the appellant will lose his job, his house and possibly his family due to the custodial sentence imposed.

Ground No 9

32. The sentencing judge having imposed an effective sentence of one year’s imprisonment to be actually served (assuming the appellant kept to the conditions on which his sentence was partially suspended), counsel for the appellant sought to remind the sentencing judge that he was required by law to consider the imposition of a community service order when imposing a sentence of 12 months duration or less. The sentencing judge responded that “I have taken that into account”, and further stated, “I know and I’m very grateful to (sic)

the precedents that you’ve handed into me, Mr Berry. I’ve read them, but I think the third and fourth were too far.” It is submitted that the sentencing judge gave insufficient consideration to imposing a community service order, and that he erred in failing to do so.

Respondent’s Submissions Grounds No’s 1,2 and 3

33. The respondent submitted that the sentencing judge had had express regard to the applicable sentencing principles, noting the age of the appellant at the time of the offending; the application of and policy underpinning the Act of 2001; and that the primary purpose in passing sentence on a child is to achieve rehabilitation. However, it was submitted, by reason of the nature, number and the circumstances of the offences with which we are concerned in this case, a period of detention for such a juvenile offender, appearing relatively contemporaneously before the courts, would have been unavoidable.

34. In response to the appellant’s contention that the sentencing judge erred in setting a headline sentence of three years, the respondent submits that in view of the age disparity between the appellant and the complainant at the time of the offending, the abuse of trust, the nature and frequency of the offending and its impact on the complainant, there was no error in this respect. Further, it is noted that an effective discount of 66% from the aforementioned three-year sentence was granted by reason of the suspension of two years of it.

Grounds No’s 4,5,6 and 8

35. Counsel for the respondent submits that the passage of time was clearly at the forefront of the sentencing judge’s mind. The sentencing judge had had express regard to the passage of time in this case, explicitly stating that he must take into account that these events occurred in 1999 more than 25 years ago. The sentencing judge had also considered the notional case of what he might have done if he had had the appellant before him as a 15-year-old offender, and then the position with respect to having the appellant presenting before him for sentencing as a man in his 40’s.

36. It was submitted that the suspension of two years represented a very generous discount for the mitigating factors in the case, and it was argued that the appellant’s submissions to the contrary were not supported by how the sentencing judge had in fact approached the matter. Rather, the sentencing judge had fully and fairly assessed the evidence, and in doing so had applied appropriate principles of sentencing law, resulting in the imposition of a just and proportionate sentence.

Ground No 7

37. The respondent maintains that there was no evidence as to the precise terms of any settlement reached. What had been put forward was an assertion that there had been some settlement of a potential civil claim by the complainant unspecified as to its terms, save that it had included an apology from the appellant which had been accepted, and some further terms (again unspecified) which were said to be “prospective in nature”.

There was no evidence that it had resulted or would result in hardship, financial or otherwise, to the appellant. The respondent pointed to the fact that the stated existence of some settlement was expressly referenced by the sentencing judge. However, the sentencing judge could not have been expected to take it into account in any material way in the absence of evidence that financial compensation was afforded, and the extent of any compensation so afforded. It was submitted that there was therefore no error on the part of the sentencing judge in how he dealt with the alleged compensation issue.

Ground No 9

38. Counsel for the respondent outlined that the sentencing judge, when asked about possibly imposing a community-based sanction, had stated that he was aware of the requirement to consider alternatives to a custodial sentence where appropriate, and that he had made it clear that in the present case a custodial term was unavoidable in his view. This was said to be a decision taken within the sentencing judge’s legitimate range of discretion, and it was submitted that no error on his part was apparent.

The Court’s Analysis & Decision Grounds No’s 1 & 2

39. The complaint made in ground 1 is that the sentencing judge failed to apply the principles which apply when sentencing an adult for offences committed as a child, and in ground 2 (and implicitly in consequence of the complaint made in ground 1) that the sentencing judge set a headline sentence that was too high in all the circumstances of the case.

40. What then are the principles which apply when sentencing an adult for offences committed as a child in so far as they apply in this case?

41. First, where an offender was a child when they offended, but was an adult both at the time of being charged and at the time of being convicted (or pleading guilty) the offender must be sentenced according to his/her status at the time of sentencing, i.e., as an adult and not as a person to whom the Act of 2001 has any application. That this is so, has long been understood. However, three recent decisions of the Supreme Court which, although they were concerned with issues that are not directly in point in terms of the present appeal, gave wide consideration to both the scheme of the Act of 2001 and the intention of the legislature with respect to persons to whom, and the extent to which, its provisions were intended to apply, reinforce our confidence in the correctness of that proposition. The decisions alluded to are People (DPP) v. P.B. [2025] IESC 12; People (DPP) v. C.C. [2025] IESC 11; and the conjoined cases of Doe (No 1), Doe (No 2) & Doe (No 3) v. DPP [2025] IESC 17.

42. Secondly, the offender must be sentenced according to the ordinary sentencing principles applicable to an adult. These include that the gravity of the case must be assessed with reference to culpability and harm done, and with due regard to the range of available penalties; that due allowance must be made (i) for mitigating circumstances not already taken into account as bearing on culpability in the assessment of gravity, and (ii) for relevant personal circumstances that might make a penalty (particularly a carceral one)

harder for the offender and those dependent on him/her to bear; and that a penalty should be selected, proportionate both to the gravity of the offence and the circumstances of the offender, structured as appropriate, to best give effect to whatever sentencing objective(s) the sentencing court, in the exercise of its discretion, considers it appropriate to pursue.

43. It is important to appreciate that in the latter regard, the sentencing judge is at large and he/she is not constrained to prioritise reform/rehabilitation as a sentencing objective in the same way that a judge faced with sentencing a person to whom the Act of 2001 applies is so constrained by virtue of the requirement which the Act imposes to prioritise the welfare of the child offender. That having been said, the parsimony principle with respect to the possible imposition of a custodial sentence applies in adult sentencing and reform/rehabilitation remains an important sentencing objective for possible consideration where there is an evidential basis for doing so. However, there is no requirement to prioritise it over other sentencing objectives that may appear to the sentencing court to be appropriate to pursue.

44. What then, if any, will be the relevance in the sentencing of an offender who must be sentenced as an adult of the fact that the offending was committed while the offender was himself/herself a child? The primary relevance of this consideration is that it may bear, and potentially significantly bear, upon the offender’s culpability, which in turn will impact on how the gravity of the case falls to be assessed. This Court’s judgments in People (DPP) v. J.H. [2017] IECA 206 and in People (DPP) v. T.D. [2021] IECA 289 provide some assistance.

45. As Mahon J, giving judgment for the Court, stated in J.H.:

“15. What is relevant in the context of sentencing is the fact that the appellant, although now an adult, committed the crimes in question when he was fifteen years old. A sentencing court is required to access the offender’s level of maturity at the time of the commission of the offence and to accordingly access his culpability as of that time.”

46. Further, in the more recent case of T.D., we stated:

“31. … We feel that the fact of minority represents a very significant circumstance, that will in many cases, and we think this is one of them, operate to in fact reduce culpability somewhat. That is not to gainsay that rape is always a various serious offence, and one which must be punished as such. However, the Constitution requires that such punishment must not only be proportionate to the gravity of the offending conduct but also to the circumstances of the offender.

32. The approach of the Sentencing Council for England and Wales is informative in this area. The Sentencing Council has published a Definitive Guideline on the Sentencing of Children and Young People which, consistent with the ethos of our own Children Act 2001, requires a completely different approach to the sentencing of minors, based on welfare; and it recommends, where appropriate, a sentence broadly within the region of one half to two thirds of the appropriate adult sentence for minors in the age bracket 15-17.

33. While we are not to be taken as adopting uncritically guidance provided by the Sentencing Council in the neighbouring jurisdiction, because it applies to a separate and distinct legal system which has different sentencing rules, structures and laws, we do take note of it and regard it as being at least a helpful indicator as to the potential significance of the fact of minority in any assessment of an offender’s culpability.”

47. Turning then to the sentencing judge’s remarks in this case, we are not persuaded by the argument that he failed to apply the principles which apply when sentencing an adult for offences committed as a child. He properly recognised that the appellant should be sentenced as an adult. Equally, he recognised that the appellant’s culpability required to be treated as reduced on account of his youth and immaturity. However, the conduct complained of was intrinsically serious. It is true that the assaults were non penetrative, but they comprised deliberate touching of the complainant’s genitals both under and over her clothing for the appellant’s sexual gratification, involving in some instances gripping the complainant’s vaginal area strongly with his hand, while the appellant masturbated himself.

48. Moreover, the offending conduct was aggravated in a number of respects. The sentencing judge rightly regarded the number of occasions on which the offending conduct was repeated as being aggravating. Also aggravating, although not specifically referenced by the sentencing judge, was the breach of trust arising from the fact that the appellant had been entrusted with babysitting responsibility. The age differential between the parties was also an aggravating factor. While the appellant’s youth and immaturity would serve to reduce significantly in his case the degree to which culpability ought to be regarded as being increased by the breach of trust and age differential factors, the fact that the intrinsic culpability of the offending conduct was aggravated by those factors can not be wholly discounted.

49. The harm done by an offender’s conduct must also be synthesised in any assessment of gravity. The sentencing judge rightly referenced “the profound effect on the injured party”. Again, it is well recognised that youth and immaturity may inhibit an offender’s ability to recognise and fully appreciate the extent to which his/her offending conduct may give rise to harm. However, even though that may be so, it is clear from the evidence that the appellant in this case had some appreciation at the time that he was doing wrong. It is aggravating that the harm done was enhanced by secondary traumatisation of the victim through the appellant’s denials when confronted with his conduct at the family meeting in August 1999; and by the blaming of his victim and his acquiescence in the suggestion (admittedly proffered by the appellant’s mother) that the victim had been having a bad dream and that he had just come in to see if she was ok.

There was yet further secondary traumatisation of the victim over many years by the appellant’s continuing refusal to acknowledge and take full responsibility for his actions as he got older. While he responded to the complainant’s letter by privately apologising to her, her never sought to set the record straight with others in the family to whom he had earlier asserted denials of engaging in sexually abusive conduct. Even when a complaint was made to the gardaí in 2023, when he was fully an adult, he volunteered only partial admissions which tended to minimise what he had done, namely suggesting that his indecent touching of the complainant had been confined to touching her outside her underwear. Notwithstanding this he ultimately pleaded guilty to the offences on which he was sentenced, and did not contest the complainant’s account of what had occurred through suggestions made in cross -examination of the State’s witness, or by seeking a “Newton hearing”, where an offender facing sentencing admits criminal liability as charged but asserts a different (and less culpable) narrative to that put forward by the prosecution.

50. In so far as the sentencing judge engaged in considering hypothetically whether or not he would have felt it necessary to sentence the appellant to detention had he been sentencing him while he was still a minor, and in a situation where the Act of 2001 applied to him, this could not ultimately have assisted him as he was sentencing under different rules. However, the fact that he engaged in it unnecessarily does not impugn his ultimate sentence in our view. The sentencing judge appears to have engaged in that exercise in the hope of gaining some reassurance from it that what he was proposing to do was proportionate. In reality, however, although the exercise was used as a proportionality check, it was a flawed one which was not suitable as a proportionality check because the two situations were not legitimately comparable. However, at the end of the day what mattered is whether the disposition ultimately decided upon by the sentencing judge was in fact proportionate, and we are satisfied that it was.

51. We are satisfied that appropriate sentencing principles were applied in the assessment of gravity. Further, such principles were also applied in discounting for mitigation and personal circumstances. Further, the sentencing judge correctly appreciated that he was not constrained by the child offender’s welfare ethos which imbues the Act of 2001, and that he was entitled in the exercise of his discretion to prioritise the penal objective of punishment. In that regard he expressly stated:

“So, in this case the situation is that, basically, he's not before the Court when he's

15 or 16 in this case. He is in his 40s I believe, at this point. So, the sentence I would be imposing upon him would be for punishment at this point. Does he deserve punishment for what he did when he was that age? Was his behaviour so reprehensible, even taking into account his age at the time? And this has troubled me because of the age factor principally. If he was an adult man and he did what happened or he committed the -- he would be going to jail for probably three or four years. As simple as that. Probably more in relation to a child. The question is, does he deserve a prison term now for what he did when he was 15? That is the question. And I must say that it's a difficult question. And I've come to the

conclusion that he does deserve some prison term, for what he has done. And obviously, it won't be as severe as he would if it was an adult.”

52. As regards the headline sentence complaint, there was strictly speaking no nomination of a headline sentence in this case. We are aware that the sentencing judge in this case prefers to approach sentencing on the basis of instinctive synthesis, rather than by means of the semi-structured approach to sentencing that has been commended by this court in earlier cases as being best practice, and which if adopted would have seen the nomination of a headline sentence. However, we have repeatedly said that while a semi-structured approach is our preferred methodology it is not an error of principle to proceed on the basis of instinctive synthesis.

53. While the sentencing judge imposed a sentence of three years imprisonment in this case (designed, it may be inferred, to communicate censure, and society’s deprecation of the offending conduct, and to impress upon the appellant and others the seriousness with which such conduct is viewed), he ameliorated the hard treatment component of the sentence, namely the deprivation of appellant’s liberty, by suspending fully two thirds of it, resulting in a sentence of just one year imprisonment to be actually served (providing the conditions of suspension were adhered to).

54. We are satisfied that in so constructing his sentence, due allowance was afforded by the sentencing judge in his overall synthesis for the plea of guilty, the appellant’s lack of convictions before or since, his work record, his family circumstances, and the need to keep faith with the requirement set forth in J.H. and T.D. to make significant allowance in an appropriate case, which this is, for an offender’s youth and immaturity.

55. With respect to the contention that the sentencing judge overestimated the gravity of the offending conduct having regard to the fact that the sexual assaults at issue here were non-penetrative and the available range of potential penalties, we do not agree. While the sexual assaults in this case may not have been penetrative, they were a serious trespass to the bodily integrity and human dignity of the complainant, who felt violated and suffered very significant psychological trauma and harm as a result. The harm has persisted to this day. Moreover, the incidents of sexual assault were multiple and aggravated.

56. While the sentencing judge was confined by the maximum penalty available at the time, we recall that in DPP v. McGrath, Dolan and Brazil [2020] IECA 50, a case involving assault causing harm, which offence also had a maximum penalty of 5 years imprisonment at the relevant time. Birmingham P on behalf of this Court observed that “it may be that judges have been too reluctant to consider placing the starting or premitigation sentence at the maximum of five years imprisonment”, and that “judges should not operate on the basis that a starting point of five years is not generally available and that it should only be considered, if it be ever considered, in exceptional circumstances”, We think that similar remarks might be made in a case such as the present, albeit for different reasons.

57. In the McGrath, Dolan and Brazil case the Court pointed to the overall architecture of assault-type offences provided for by the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), involving assault, contrary to s. 2; assault causing harm contrary to s. 3; and causing serious harm contrary to s. 4, and observed that there may be cases where the decision to charge with s. 3 or with s. 4, or to accept a plea to s. 3 if s. 4 has been charged, will be finely balanced. There will also be other cases which will be identified as borderline s. 3 or s. 4. In such cases, a starting point or pre-mitigation sentence of five years may be appropriate.

58. The architecture of sexual assault type cases under the Criminal Law (Rape) Amendment Act 1990, is superficially similar. There is sexual assault contrary to s. 2, aggravated sexual assault contrary to s. 3 and the various penetrative sexual assaults (other than digital penetration) which are classified as rape contrary to s. 4. However, there is arguably a much brighter line between s. 2 sexual assault and s. 3 aggravated sexual assault, than exists between s. 3 and s. 4 offences contrary to the Act of 1997. To qualify as “aggravated sexual assault”, a sexual assault must involve “serious violence or the threat of serious violence” or be “such as to cause injury, humiliation or degradation of a grave nature to the person assaulted”. While the sexual assaults in the present case were serious, and were a significant violation of the victim, it has not been suggested in any quarter that they could have qualified as aggravated sexual assaults contrary to s. 3 of the Act of 1990.

59. However, it does seem to us that when an offender is charged with multiple s. 2 sexual assaults with significant aggravating features, a sentencing judge constrained, as in this case by a 5 year maximum penalty for any individual offence (the maximum penalty for sexual assault of a child has since been amended to 14 years, but the increased penalty range was not available to the sentencing judge in this case), will have a range of options in terms of how to deal with them. He/she could, for example, impose individual proportionate sentences on each count with the possibility of having some recourse to consecutively in the structuring of the overall global sentence, and in that event either the cumulative pre-mitigation or headline sentence, or indeed the cumulative post-mitigation sentence, could approach or even exceed the five-year maximum penalty for any single offence. Another option, and the one which was availed of in the present case, would be for the judge concerned to sentence for a single offence, and take the other offences into consideration, thereby making the count on which the sentence is to be imposed the socalled “gauge offence”, the sentence for which was intended to reflect the totality of the offender’s criminal conduct.

60. We consider that if a sentencer, constrained by a low maximum penalty for an individual offence, is sentencing for multiple such offences and opts to sentence for one offence as the gauge offence, this is another circumstance in which he/she should not operate on the basis that a starting point at the maximum point on the range is not generally available or that it should only be considered, if it be ever considered, in exceptional circumstances.

61. Because the sentencing judge in the present case adopted the instinctive synthesis methodology rather than a semi-structured methodology, we do not know precisely where he started, or might be deemed to have started. However, it is sufficient for present purposes to observe that had he adopted the alternative and preferred semi-structured methodology it would have been open to him in the circumstances of the case to have started at the maximum available, and to have worked down from that. In circumstances where the ultimate post mitigation sentence was three years imprisonment with the final two years suspended on conditions, we have no unallayed concerns that the sentencing judge over assessed the gravity of the case.

62. In circumstances where the sentencing judge, as he was entitled to do, opted to sentence for a single “gauge” offence (in this instance Count No 1), and take other counts on the indictment (Counts No’s 2, 3 and 4) into consideration, some perceptible uplift in any penalty to be applied to the gauge offence, by leaning more towards the severe rather than the lenient end of his range of discretion, was only to be expected. We are completely satisfied in the circumstances of this case that the ultimate sentence was proportionate in the dual sense required by law.

63. In the circumstances we dismiss Grounds of Appeal No’s 1 and 2.

Ground No 3

64. We dismiss this ground of appeal in limine. As already stated, this appellant was not a person to which the Act of 2001 had any application at sentencing. He was required to be sentenced as an adult, albeit factoring in reduced culpability on his part on account of his youth and immaturity, in circumstances where he committed the offences while he was legally a child. That was done by the sentencing judge.

Grounds No’s 4, 5 & 8.

65. We are satisfied that the sentencing judge was fully alive to the fact that the offending had occurred 25 years approximately prior to sentencing, and that the appellant had not otherwise offended. Further, that he had pleaded guilty, that he had a good work record, and that he had family responsibilities. In that regard, the sentencing judge expressly stated:

“Obviously, I must also take into account that basically these events occurred back in 1999 and that's probably getting close to -- it's more than 25 years ago at this point. Excuse me. So, I must take that into account. I must also take into account the plea. I must take into account the apologies offered. I must take into account that he has no record of conviction whatsoever. And I must also take into account that I think on the basis of his previous behaviour up to now, it's probably unlikely that he'll re-offend to any great degree in the future. It seems this defendant is a plumber and contributes to his family and to society.”

66. In suspending two years of the three-year sentence he had nominated as being appropriate in principle, having previously stated that if the offending had been committed by an adult “he would have been going to jail for three or four years” and indeed “probably more in relation to a child”, we are satisfied that the sentencing judge generously discounted for the mitigating circumstances in the case. His discount represented a synthesis of all of the relevant factors, and he was not obliged to attribute individual weightings to them, nor was the ultimate discount required to be the sum of individual parts. It is well established that any discounting for mitigation may be appropriately arrived at by instinctive synthesis. We are satisfied that such discount as was afforded was appropriate and proportionate to the appellant’s circumstances, and we find no error of principle.

Ground No 6

67. In regard to this ground of appeal, we note that the sentencing judge expressly referenced the apologies offered and said that he was taking them into account. We have no reason to believe, faced with this express statement, that he failed to do so. As previously mentioned, there was no requirement to attribute individual weightings to mitigating factors, and indeed it would have been inappropriate to do so. What we can say is that the apologies tendered and the asserted remorse would likely only have carried modest influence in the circumstances of the present case, given the appellant’s denials at various stages, victim blaming, and unwillingness to make other than partial admissions during the police investigation, all of these things leading as they did to secondary traumatisation of the victim. While he ultimately pleaded guilty to the charges that were eventually preferred against him, his pleas (valuable though they were in the context of the criminal proceedings, particularly having been offered at an early stage of those proceedings) represented a very late taking of moral responsibility for and of facing up to the enormity of what he had done and how he had blighted the complainant’s life.

The overall discount afforded for all mitigating factors, including remorse expressed, was sufficiently generous in our view, and we therefore find no error of principle in how the sentencing judge ostensibly treated the apologies offered.

Ground No 7

68. We have carefully considered the Supreme Court authority in the case of People (DPP) v Duffy [2023] IESC 1, to which we were referred by counsel for the appellant, concerning the appropriate treatment at sentencing of sums paid in compensation. We note in particular, O’Malley J’s observation, at paragraph 79 of the judgment, that:

“The relevance of the voluntary offer of compensation lies in its relevance to the assessment by the court of the personal circumstances of the offender. It represents a full acceptance by the offender, not only that he or she has committed a criminal offence, but that he or she is responsible for the harm done by that offence. It is usually beneficial to the injured party to know that responsibility is accepted and that some personal effort at reparation is being made. I would, further, accept that a voluntary offer should be seen as more significant if it is pitched at a level that will have a tangible effect on the lifestyle of the accused.

That may be implicit even if, for example, the money has been raised by family and friends, since they may be in a position to exert pressure on the accused to change his ways. The offer can still be seen as evidence that the offender is remorseful and is willing to attempt to undo the harm to some extent. This is clearly relevant to the question of rehabilitation.”

69. The sentencing judge in the present case felt that the “settlement” alluded to in evidence was “a matter for the parties”, and did not take it into account. Even if he had been prepared to take it into account, he could not have done so in the circumstances of this case This is because he was not going to be apprised, by virtue of the asserted confidentiality of the “settlement”, of the full circumstances in which it had been arrived at or its terms. He therefore would have had no way of assessing on the limited information provided to him if it was truly “voluntary” and a true expression of remorse and attempt to undo harm done by the appellant, or a simply a self-serving attempt to limit financial exposure in circumstances where a substantial civil court award might well be made against him in favour of the complainant. Further, without knowing the terms of the settlement he had no way of assessing if compensation paid, or to be paid, would have a tangible effect on the lifestyle of the appellant.

70. We have no hesitation in saying that it behoves an offender who seeks to rely on compensation said to have been paid or offered to a victim at sentencing to provide the sentencing court with the necessary evidential foundation to enable it to potentially take it into account. That was not provided in the present case, and it seems to us that in those circumstances the appellant can in the circumstances have no legitimate complaint that the sentencing judge was not prepared to take into account the “settlement” alluded to in evidence.

71. We therefore also dismiss Ground of Appeal No 7.

Ground No 9

72. We also dismiss this ground of appeal in limine. This was not a case in which the court imposed a sentence of 12 months or less. The sentence imposed was one of three years imprisonment, the final two years of which were conditionally suspended. It was therefore a three-year sentence, albeit with a suspended component, and the provisions of s.3 of the Criminal Justice (Community Service) (Amendment) Act 2011 amending s. 3 of the Criminal Justice (Community Service) Act 1983 did not apply to it.

73. Whether or not it was an appropriate case in any event to incorporate a community service element was entirely a matter for the sentencing judge’s discretion. He considered a request to do so, and decided against. We find no error on the part of the sentencing judge.

Conclusion

74. The appeal against severity of sentence must be dismissed.