Court of Appeal quashes unduly lenient sentence for sexual assault and re-sentences to 8 years imprisonment.

APPROVED JUDGMENT

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 218

Record Number: 336CJA/2024

McCarthy J. Kennedy J. O’Moore J.

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/

- AND -

T.G.

RESPONDENT

JUDGMENT of the Court delivered (ex tempore) on the 20th day of

October 2025 by Ms. Justice Isobel Kennedy.

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s.2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency.

2. There are 14 counts on the indictment and on the 5th March 2024, (the trial date), the respondent pleaded guilty to 11 counts of sexual assault. 8 counts were contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001; thus the maximum being 14 years and 3 counts prior to the commencement of the 2001 Act, thus a maximum sentence of

5 years. He was sentenced to 4 years imprisonment with the final 6 months suspended for two years on conditions.

Factual Background

3. The respondent pleaded guilty on a full facts basis to counts 1 to 7 and 11 to

14 on the indictment, all offences of sexual assault. The counts were sample counts alleged between 2001 and 2006.

4. The respondent was in a relationship with the victim’s mother at the time of the offending, and is the brother of the victim’s biological father. However, at the time of the offending, the victim had thought the respondent was her father. The victim’s mother worked, and the respondent provided childcare for the victim and her two younger siblings, who were the children of the respondent and the victim’s mother.

5. The victim made a statement to the Gardaí in 2021.

6. The first count on the indictment occurred when the victim was aged between

7 and 9. The respondent told the victim to stand on a couch in the sitting room of the family home and to look out the window. He pulled the victim’s pants down, put his penis between her legs and moved her body back and forth. She stated, “I remember my legs being wet, but at the time, I didn't know that it was sperm. He put baby powder in between my legs. He then pulled up my trousers and left”.

7. There were many incidents of a similar character, one concerned an incident which occurred some two-three weeks later, when the victim’s two younger siblings were present. The year she made her Holy Communion, she was forced to masturbate him until he ejaculated. Afterwards, the respondent told her to wash her hands and gave her a chocolate bar. Again, there were many incidents of this character.

8. In relation to count 6, the sexual activity was again that of simulated sexual intercourse, leading to ejaculation. However, on this occasion he lifted her up by the waist and put his erect penis between her legs and lifted her up and down. The victim stated that she remembered feeling sore afterwards.

9. On one occasion when the child was forced to masturbate the respondent, the victim’s mother came home and commented that there was a smell, and the respondent made the victim wash her hands. The respondent then left the family for approximately one year following this incident.

10. One another occasion the victim described how the respondent asked her to go the kitchen, closed the door, stood up against it and exposed his penis, he grabbed her hand and forced her to masturbate him. She stated that this happened at least three times over the following couple of months.

11. The final incident was one of forced masturbation but on this occasion, she stopped the activity and went into the bathroom, the respondent followed her in and put his hands on her waist, and she told him no. She was 12 years old.

Personal Circumstances of the Respondent

12. Counsel for the respondent told the court that the respondent’s childhood was “miserable” and “pathetic”, and a psychological report submitted to the court detailed that he was the victim of both sexual and physical violence.

13. He has issues with alcoholism and with his health, he suffers from liver disease and has been receiving treatment for this since 2022. The respondent, at the time of the report, was homeless. The court heard that the respondent had mental health issues and had attempted to take his own life. The psychologist suggested that the respondent should not have unsupervised access around children or vulnerable adults and should attend professional counselling to gain an understanding of his own behaviour and to reduce the risk of recidivism.

14. Counsel for the respondent also noted that the respondent had been ostracised by his family and the local community.

15. The respondent had 7 previous convictions at the time of sentencing, none of a sexual nature and all alcohol-related public order offences.

Sentencing Remarks

16. The sentencing judge noted that the guilty pleas saved the victim from giving evidence or being cross examined at trial, remarking that, “the value of the plea, particularly from the victim's perspective, cannot be overstated”. However, it was also noted that the pleas came at a late stage when the matter was already listed for hearing and the victim was prepared to give evidence.

17. The sentencing judge emphasised the position of power that the respondent held over the victimthe age difference between a grown man and a small child, that he was essentially in loco parentis when the victim’s mother went to work and that this breach of trust was most egregious in those circumstances.

18. In mitigation, the sentencing judge took into account the respondent’s childhood traumas, his apology to the victim, that he demonstrated a certain degree of remorse and insight into the offending, as well as the psychological report that noted the respondent was of a medium risk of reoffending.

19. A headline sentence of 5 ½ years imprisonment was nominated in respect of count 4, which was reduced to 4 years imprisonment with the last 6 months suspended for a period of 2 years on conditions. The same sentence was imposed concurrently on counts 5-7 and 11-14, with counts 1, 2 and 3 taken into consideration.

Grounds of Application

20. The Director relies on a number of grounds of appeal, but in essence, the Director contends that the judge erred in the nomination of the headline sentence.

Submissions of the Director

21. The Director refers to several cases by way of comparator case law and submitting that the sentence imposed on the respondent was unduly lenient, having particular regard to the case of The People (Director of Public Prosecutions) v MC [2022] IECA 252.

22. The Director submits that while the sentencing judge referenced the relevant aggravating factors in his judgment, he did not give these factors sufficient weight. It is submitted that the judge erred in fixing a headline sentence of 5 ½ years, when the maximum penalty is 14 years. It is noted that this headline sentence indicates that the sentencing judge deemed the offence to be at the upper part of the low end of the scale of such offending. The sentence was reduced in light of mitigation to 4 years with the final 6 months suspended, and this, it is submitted, did not reflect the gravity of the offences committed by the respondent, particularly in respect of the age of the victim and the prolonged nature of the offending.

23. It is further submitted that given the nature of the offending, the sentencing judge could have exercised his discretion to impose consecutive sentences, referring to the case of People (DPP) v GMcD [2023] IECA 94 to emphasise this point.

Submissions of the Respondent

24. The respondent submits that the sentencing judge considered the entirety of the circumstances surrounding the offending, that he correctly identified and balanced both the aggravating and mitigating factors involved in the case.

25. The respondent refers to the case of People (DPP) v MJ [2022] IESC 50, where O’Malley J noted that the courts in this jurisdiction have often approached sentencing in sexual assault cases against one victim on the basis that concurrent sentences are more appropriate than consecutive sentences, and that it has been said that consecutive sentences should be utilised “sparingly”.

26. The respondent submits that the sentencing court considered the circumstances of the respondent since the offending. It is further submitted that there was genuine evidence of remorse, evidenced by the letter of apology as well as through the guilty pleas.

27. The respondent also relies on the case of People (DPP) v SH [2023] IECA 206, but distinguishes it from this case on the basis that in SH, the aggravating factor was that the offending had occurred in two tranches with a period of no offending in between. It is submitted that the consecutive sentences imposed in that case reflected the two distinct periods of offending, and that in the case of the respondent herein, the offending occurred over one period of time of 5 years. The respondent further relies on the case of DPP v GMcD in highlighting this point.

28. The respondent submits that there is not a significant deviation from the sentencing principles established in the case law cited above to justify this court’s quashing and re-sentencing.

Discussion

29. We do not propose to set out principles which apply to undue leniency reviews as they are well established at this point. We commence by saying that that the onus is on the Director to establish that the sentence was unduly lenient to the extent that the divergence between the sentence imposed and that which ought to have been imposed amounts to an error of principle before we may justifiably intervene. The sentence must constitute a substantial departure from the norm.

30. There is no doubt that this was offending of a serious order. The victim was a very young child, aged between 7 and 12 years at the time, and, vulnerable as a consequence. The respondent was in a position of trust; effectively as her father, albeit not her biological father. He was to care for her and her siblings and failed completely in this respect. Instead, he sexually abused her over a prolonged period and on a very frequent basis.

31. The nature of the abuse must be considered in assessing the gravity of the offending; and in this regard the respondent regularly simulated sexual intercourse with the victim leading to ejaculation, causing her, what can only be said to be puzzlement as to why she was wet in the aftermath, and on occasion, requiring her to change her underwear.

32. Some of the abuse was perpetrated in the presence of her siblings, which is a further aggravating factor, and no doubt the respondent’s actions caused her humiliation and degradation.

33. All these factors are relevant before moving to consider the impact on the victim which is, and continues to be, severe and long lasting.

34. In those circumstances, we have no hesitation in finding that the sentence imposed was unduly lenient; the notional sentence of 5 ½ years nominated is a substantial departure from the sentence which ought to have been imposed, leading to an ultimate sentence of 4 years with 6 months suspended. Consequently, there is an error in principle which justifies this Court’s intervention. We therefore quash the sentence imposed and proceed to re-sentence the respondent.

Re-sentence

35. We proceed to re-sentence de novo as of today’s date and have considered the evidence as reflected in the transcript, the material advanced on behalf of the respondent and this current situation. We have been informed that the respondent is availing of the services in custody, attending psychological services and the AA.

36. The counts on which a sentence can lawfully be imposed are counts 1-7 and counts 11-14. The evidence was adduced on a full facts basis. The maximum penalty on counts 1-3 inclusive is that of 5 years imprisonment. A maximum penalty of 14 years applies on the balance of the counts.

37. Taking the aggravating factors into account, and in imposing sentence on counts 4-7 and counts 11-14, we consider the appropriate headline sentence to be that of 10 years imprisonment. We consider this a most serious violation of the victim’s right to bodily integrity by an individual who was charged with caring for her. We believe this properly reflects the gravity of the offending.

38. We have assessed the mitigation available, the late plea of guilty entered on the trial date and the remorse expressed. We have considered the other factors also offered in mitigation together with his current position and, accordingly, we will reduce the headline sentence to that of 8 years imprisonment on those counts. We consider this a generous discount in the circumstances.

39. Regarding the balance of the counts, they will be taken into consideration.

40. We do not believe it is appropriate to suspend any of the sentence and we will impose 3 years post release supervision on the following conditions:

1. That he attend with the probation services;

2. That he is prohibited from having unsupervised contact with children or vulnerable adults for a period of 3 years.

41. He remains on the sex offenders register.