Court of Appeal quashes unduly lenient sentence for repeated child sexual assault, ordering new sentencing.

An Chúirt Achomhairc Choiriúil

The Court of Appeal

Bill number: DUDP 48/2022 Court of Appeal Record Number: 298/2024 [2025] IECA 254 Charleton J Edwards J Burns J

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

GN Accused/Appellant

Judgment of Court delivered by Mr Justice Charleton, Thursday 20 November 2025

1. The Director of Public Prosecutions seeks to review the sentence imposed on GN, the appellant, by Her Honour Judge Sinéad Ní Chúlacháin on 7 November 2024 for undue leniency under s 2 of the Criminal Justice Act 1993. This provides that if it “appears to the Director of Public Prosecutions that a sentence imposed by a court . . . on conviction of a person on indictment was unduly lenient” an application may be made to this Court to review the sentence, whereupon the Court may “quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned” or “refuse the application.”

2. GN pleaded guilty to 22 counts of sexual assault, simpliciter and not aggravated sexual assault, on “a female child”, meaning a girl under 17 years old. Aggravated sexual assault, which carries up to life imprisonment, was not charged. There were 12 offences against child A, committed while she was between eight years and 16 years old. There were 10 offences against child B, committed while she was between seven and 15 years old. These pleas admitted to a series of offences which, as the sentencing judge put it, “were regular and frequent.” While, in the transcript of the sentencing hearing, reference was made to a “mid-range” of severity, no authority was cited to the judge as to what the most grave category of these offences might be or what sort of cases might be regarded as potentially attracting a medium sentencing band or a more lenient sentencing approach. This has led the Court to review the categorisation of these offences with a view to giving sentencing judges some general guidance as to sentencing bands in sexual assault.

Complexities

3. A complication in this is that a substantial number of these kind of offences tried in our courts may be from decades ago and that the relevant sentence for sexual assault has been markedly varied over that time. Clearly, a court may only sentence for up to the maximum penalty provided at the time of the offence, though that may often appear inadequate for the oldest cohort of offending. Furthermore, a series of offences may, because it takes place over years, be subject to different maximum sentences. Further potential for confusion on sentence may come from the way in which sexual violence may shift from one kind of abuse into another. This is not simply in the context of what, in the experience of the court, may be described as grooming, where the abuse of vulnerable individuals and children becomes more degrading over time. Rather, whereas the common law started out with offences of rape, buggery and indecent assault, with individually defined maximum sentences for each, legislative intervention has added new categories of rape and has also provided a definition for aggravated sexual assault where particularly repellent actions characterise a particular offence, while at the same time, on the doctrine of lesser included offence, these novel offences of sexual degradation also incorporate the elements of sexual assault and of attempt at such offences. As the Internet has developed, the abuse of children online has become a mushrooming phenomenon; whereby offences of accessing child pornography have been created. Children are abused online and, though an accused will not have participated, the demand for the material is what generates those crimes. Where a child is the victim of sexual violence, the new offence of defilement may be what is charged instead of sexual assault. Hence, a brief presentation of the taxonomy of sexual offences is required before the Court proceeds to consider the elements whereby sexual assault may be considered in broad levels of gravity.

Taxonomy

4. The purpose of this concise statement is to demonstrate that sexual assault is a foundational element of offences of sexual violence and one in respect of which the doctrine of lesser included offence enables, by statute or by common law, a verdict on that basis where a sexual offence involving more elements is subject of a not guilty verdict. That can occur where the jury acquit, for example of rape, but convict of sexual assault and it can also happen where sexual assault, simpliciter, or more usually a series of such crimes is what is on the issue paper. But, where a more serious offence is not proven, there can be no question of sentencing on the basis of facts rejected by the jury. Obviously, because of the lack of physical contact, charges based on child pornography do not normally, unless the accused has participated, include sexual assault as an element.

5. Returning to the state of the law in 1922, Archbold’s Criminal Pleading, Evidence and Practice in Criminal Cases (26th edn, Sweet and Maxwell, 1922) sets out sexual offences as: buggery, which can be lawful with a person over 17 under s 3 of the Criminal Law (Sexual Offences) Act 1993; rape; and indecent assault. Rape, attempts at rape and attempts at non-consensual activity legalised under s 3, of their nature, involve assaults in sexual circumstances and therefore will also constitute sexual assault. Indecent assault, without changing the law, was renamed sexual assault by s 2 of the Criminal Law (Rape) (Amendment) Act 1990 (the “1990 Act”). Thus far, the only change substantively was that the complete prohibition on buggery was changed for consensual actions among adult persons. But, increasingly the concept of rape had been amplified from the common law concept of penetration, however slight, of the vagina of a female by the penis of a male, to include violations as to what, in ordinary day-to-day speech, was called rape of a male. Hence, in s

4 of the 1990 Act, the definition specific to s 4, and set out in the statement of offence in indictments as rape under s 4, expanded the concept of rape to include “(a) penetration (however slight) of the anus or mouth by the penis”, which is gender neutral, or “(b) penetration (however slight) of the vagina by any object held or manipulated by another person.” Rape under s 4 carries life imprisonment, as does non-consensual or under-age buggery. Again, it is challenging to imagine circumstances where proximate attempts at these violations could be anything other than sexual assault.

6. Section 3 of the 1990 Act introduced a new offence at a time when the penalty for sexual assault was a maximum of 5 years imprisonment and whereby up to life imprisonment could be imposed for this new crime. Called “aggravated sexual assault”, this was defined as “a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.” Since new elements were involved beyond those set out at common law, this, unlike the renaming of indecent assault as sexual assault, was a new offence. But, again, where the element of serious violence, or other element charged, is found not to be proven, but a sexual assault is established, a jury may convict of the lesser offence, where that is proven as a lesser included offence. No separate count is necessary under the doctrine. Notably, definitions of rape and of buggery come from the common law. There is no consolidating statute as to knowledge, consent, recklessness or inferences from circumstances and a judge or practitioner must grapple with the prospect of avoiding serious error through always having the leading textbook, or multiple statutes, at hand. Elements as to sentencing, moreover, are thereby rendered especially confusing.

7. For completeness, since sexual assault is a foundational element of sexual violence cases, that should be defined: it is an unlawful touching of another in sexual/indecent circumstances, where the accused intends both that assault and those sexual/indecent circumstances. Sexual assault and indecent assault are merely words that are interchangeable since no difference was made to the elements of the crime. Where aggravated sexual assault is charged, the aggravating circumstance must also be proven. That is not applicable on this appeal. In The People (DPP) v FN [2022] IESC 22, [2023] 3 IR 38, [2022] 1 ILRM 279, the Supreme Court related the elements needed for proof of sexual assault in detail:

9. Leaving aside where consent may not validly be given by reason of the age of the victim:

a sexual assault comprises touching the victim without consent in an indecent manner or in indecent circumstances. This can be shortened to an assault in indecent circumstances.

Such an assault is committed where it is the purpose of the accused to touch the victim without consent and that purpose includes the indecent nature of the touching (for instance grabbing a man or woman by the crotch) or bringing about through the assault the indecent circumstances (stripping a man or a woman of their lower clothing or stripping off a woman’s upper clothing). No element of hostility or aggression is required.

Nor must the prosecution prove a sexual desire by the assailant. The accused must purposely assault the victim in an indecent manner or in indecent circumstances. Thus defined, the elements may be set out:

• That the accused intentionally assaulted the victim: meaning that the accused touched the victim purposely.

• That the assault, or the assault and the circumstances accompanying the assault, are proved to be indecent; which is an objective finding according to the contemporary standards of right-thinking people.

• That the accused’s purpose was to assault in these indecent circumstances.

10. Outside politely touching a person, in accordance with prevailing social norms, to attract their attention, any touch is an assault where there is no consent. Touch encompasses everything from stroking to punching to hitting with a weapon. Within social norms there may be implied consent to touch; just as it is not a trespass to land, because there is implied consent, to walk up to someone’s house and knock on the door for a lawful purpose, such as delivering something. Hence an assault may be defined as any intentional touching of another person without the consent of that person and without lawful excuse. It is not required that an assault be always be hostile or rude or aggressive; see Lord Lane LJ in Faulkner v Talbot [1981] 3 All ER 468, 471. Where the accused invites a child, legally a person who cannot consent, to touch the accused in indecent circumstances, any touching of the child by that accused constitutes an indecent assault. Since the offence of indecent assault has been renamed sexual assault, the words indecent and sexual are here used interchangeably. That renaming has not altered the elements of the offence.

11. The validity of the definition of a sexual assault being an intentional touching in circumstances of indecency may be illustrated by examples. Regrettably, the most common example in the experience of the courts is where a person is touched without consent on their sexual organs, or in the case of a woman, her breasts. What place does intention have here? What it means is simply that the accused intended to bring that assault about in those circumstances. Just as an assault is not an offence if occurring by reason of accident, as where a woman trips on the pavement and collides forcibly with a pedestrian beside her: similarly if a man standing on a busy commuter train is jolted by a sudden stop and in falling unintentionally puts a hand on a woman’s breast, intending only to not fall heavily to the ground, that is not an assault because it is not an intended touching and not an indecent assault because the indecency within the touching is not his purpose.

12. Bringing about the circumstances of indecency must be intentional. While some illustrative scenarios lack credibility, it will be for a jury to assess if the circumstances are sufficient to prove that the accused brought about the circumstances of indecency inherent in a charge of sexual assault. Hence, if a man is running to get on a commuter train and boorishly pulls someone out of the way so that he can get through a crowd on an elevator, that is an assault. In the same panicked circumstances, if the man grabs unheedingly at a woman and in so doing rips her clothing to an indecent degree, there may be no intention to bring about that indecent circumstance; but that is still an assault. Sexual assault extends not only to an intentional touching of the private areas of the human body but to the purposeful bringing about of indecent circumstances. Again, to illustrate: an adolescent boy is being bullied in school and other teenage boys decide to humiliate him by tying him to a tree; an assault is the means by which that nasty degradation is brought about. The confinement is also false imprisonment. The motivation is simple spitefulness (legally irrelevant but this may be an item furthering or, if absent from some particular boy who claimed not to take part, undermining proof). The external element of the offence is grabbing the boy, manhandling him to the tree and tying him to it; the intention is simply the purpose of carrying out those actions. None of those actions, of grabbing the boy, of dragging him along and of tying him up is indecent: furthermore, if this feeling of power over another gives any of the assailants any kind of a private sexual thrill or experience, that does not convert the offence into an indecent assault. The external circumstances are not indecent and therefore this cannot be an indecent assault. It is still, of course, a nasty assault. It would be even nastier if the boys ripped off the victim’s shirt but stopped there.

13. Were the teenage boys to decide on the extra humiliation of stripping the victim naked or of pulling down his trousers and underwear or of handling his genitals, the circumstances become indecent. The motivation of the boys is the same, that of humiliating the victim, but here they decided to add in an extra element to the assault. Because the boys intended an assault in indecent circumstances, the assault is an indecent assault. Their purpose was not only to assault the victim but to do so in indecent circumstances. Were none of the assailants to drift mentally into any feeling of sexual titillation makes not the slightest difference to the elements of the offence; all of which are established by the intentional manhandling in indecent circumstances.

Principles of sentencing

8. Since, following a consideration of the submissions in this case, it is necessary to allow the appeal of the Director of Public Prosecutions and to re-sentence the offender, it is appropriate to reiterate the general principles of sentencing. Since these were definitively stated by the Supreme Court in The People (DPP) v Faulkner [2024] IESC 16, on the basis of principles of long-standing, and as developed in the extensive sentencing analysis delivered by members of this Court, it is only necessary to set out the summary of 16 numbered principles from [9]:

1. A judge may not sentence an offender for a crime to which he or she has pleaded not guilty, or one which has been the subject of a trial with the result of an acquittal or of a disagreement by the jury on that count.

2. This principle holds, and is most obviously applicable, where an accused is tried on offence A and on offence B, but is only convicted on one offence, A and not B or B and not A.

3. At the request of an accused, who has been found guilty on offence A and also on offence B, a judge may, in choosing which offence was the most grave, and hence would carry the heaviest penalty, agree to take a lesser offence or offences into account when sentencing for that primary offence.

4. When embarking on a crime, it is commonplace that several offences may be committed.

As well as sentencing for a crime, a judge is sentencing for the event that makes up a sensible, or commonsense, view of the crime. A crime should not be split up into sections which render it no longer an event. Hence, it should be remembered that two people planning a crime are already, through their agreement to commit it, guilty of conspiracy; a burglar may come equipped with instruments for breaking into a home, which is already an offence, may enter the curtilage of a building with intent to steal, which already is the offence of burglary; may maliciously damage locks, which is also an offence; may take several items of commercial and, often more importantly, sentimental value inside, which is theft; may encounter and threaten an occupant with death, which is also a separate offence; may assault the owner or, as in The People (DPP) v Quilligan and O’Reilly (No 3)

[1993] 2 IR 305, may savagely beat and intimidate elderly brothers living in isolation so that one dies in his home and the other is rendered unfit to live independently but dies in nursing care 6 months later. That intrusion in Quilligan and O’Reilly was, nonetheless, a burglary. In itself, the fact of intrusion, or worse, confrontation, can be such as to lead to death without any actual violence for those of vulnerable health; The People (DPP) v Casey and Casey [2018] IECA 121.

5. A crime may be committed in a moment, as where a person spontaneously steals in a jewellery shop by pocketing a watch, or may last a considerable time, as in storing explosives for use in terrorist outrages, or holding a victim overnight in the commission of sexual violence.

6. A clear line may be enunciated as between the principle that it is wrong to punish a person for conduct in respect of which the presumption of innocence has not been displaced (no finding of guilty) and conduct which though constituting a separate crime is part of the event comprising the offence for which there is a finding of guilty and for which, therefore, the sentence properly encompasses.

7. Planning, leadership in a criminal enterprise, and the engagement of deliberate aggravating conduct in its commission are all relevant factors as to how a crime is committed and, hence, how a sentence is to be framed.

8. While sentences should take account of the disposal of co-offenders in terms of what sentence has been handed down to them, appropriate differences in culpability may legitimately differentiate sentence.

9. Before review on appeal is possible, a burden is born by the accused to demonstrate an error in principle by the sentencing judge. It is not enough that a different approach might have been taken by any judge considering an appeal but, rather, that an error in legal approach to a sentence handed down is manifest.

10. Respect towards the analysis of the sentencing judge is proper in an appellate court. The judge at first instance may have heard the entire case or, otherwise, will have had a firsthand opportunity to view the reaction and approach of the accused, of the victim and to consider the evidence on sentencing as live testimony.

11. It is appropriate to commence a sentencing analysis, either by a trial judge or on appeal, by judging the gravity of the event comprising the crime, or events comprising the crimes, and the individual culpability of the offender. This is the properly called the headline sentence; The People (DPP) v Mahon [2019] IESC 24, [2019] 3 IR 151, The People (DPP) v M [1994] 3 IR [306] at 315, The People (Director of Public Prosecutions) v Farrell [2010] IECCA 116, and The People (DPP) v Flynn [2015] IECA 290.

12. Thereafter, if there is mitigation, such as an early plea of guilty, or real evidence of contrition, as opposed to regret at being brought into the system of justice through detection and prosecution, that may in appropriate cases result in a reduction of the headline sentence;

13. Where there is guidance through case-analysis of sentencing bands, the prosecution, as part of their duty to objectively guide the trial and sentencing process, should assist the sentencing judge with a reasoned submission as to the category of [gravity] into which an individual offender’s conduct fits.

14. If necessary, the judge should make appropriate findings as to fact related to [gravity] based on the jury’s verdict. Usually that will be readily apparent. A judge may, on verdict, if there were two possible, and different in terms of culpability, paths to a verdict, ask the jury which of those cause them to reach their verdict; The People (DPP) v Piotrowski [2014] IECCA 17. Any such necessity very rarely occurs.

15. Appropriate totality, ensuring that the final sentence for two or more offences, whether concurrent or consecutive, is appropriate to the overall offending should be borne in mind;

see Street CJ in in R v Holder [1983] 3 NSWLR 245 and in R v MMK (2006) 164 A Crim R 481.

16. Finally, the fundamental principle of sentencing should always be borne in mind. This is that the imposition of a sentence is not simply about punishing the offender and protecting society. Sentencing should also engage, even in the case of a life sentence, offering the possibility of rehabilitation within the penal system, even of a violent perpetrator. Prison offers much, including counselling, education, training and exercise. Sentencing is more than retribution; The People (DPP) v MS [2000] 2 IR 592, and the approach of Roach JA in R v Warner [1946] OR 808 at 815. In The People (DPP) v M [1994] 3 IR 306, Denham J at pp 316-8, on behalf of this Court reiterated that the “nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing”. This approach she described as “the essence of the discretionary nature of sentencing.”

9. To this it must be added, since this is an appeal against a sentence that is asserted to be unduly lenient, and so found on the basis of the Court’s analysis which follows, that allowing such an appeal “connotes a clear divergence by the Court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle”; The People (DPP) v McCormack [2000] 4 IR 356 being the seminal authority which others have followed; and see Tom

O’Malley, Principle of Sentencing: Some Recent Developments [2001] IJSJ 51. But guidance is necessary. It does not accord with modern sentencing practice that there could be a submission that an offence “falls towards the upper end of the middle range”, without defining what that may mean. This requires assistance from the Court. In this jurisdiction, that form of approach originated in The People (DPP) v WD [2007] IEHC 310, [2008] 1 IR 308, and experience has demonstrated its utility. As Ashworth and Kelly, Sentencing and Criminal Justice (7th edn, Bloomsbury Publishing, 2021) states at 17:

The essence of offence guidelines is to provide ranges of sentence for different levels of seriousness of each type of offence and, within each range, to indicate a common starting point. The aim of the method is to structure judicial discretion – not to take it away, but to provide a framework within which the court can locate the particular offence with which it is dealing, and then reflect the facts of that case (notably, the aggravating and mitigating factors) by placing it appropriately within or outside the relevant range. ‘Guidelines provide a structure and a consistent approach, and they contribute to transparency, but they cannot and do not seek to remove the court’s discretion.’

10. In suggesting a taxonomy, from the principles gathered together in The People (DPP) v Faulkner, it follows that a headline sentence is set on the basis of culpability as against each individual offender and the harm done to the victim by the crime. In modern sentencing analysis, that combination of culpability and harm should be called gravity. Hence, in indicating the gravity of offending, what sentencing analysis proceeds on the basis of is both, firstly, the degree of culpability as well as the second factor of the impact on the victim. In what follows, a case where an offender was a participant with others cannot be identified. Apart from a gang of people turning to sexual violence, this analysis is on the basis of individual offenders, the degree of the culpability manifested in what they did, by reference for instance to the age of the victim or their position of trust vis-à-vis the victim or the serial nature of offending, and the harm caused to those victims.

Plea of guilty

11. All of these offences under appeal were of sexual assault on a girl under 17 years old. In respect of a sample of the offending, the offender pleaded guilty within a week of the scheduled trial date. He did not sign pleas of guilty and nor when the list judge was settling which cases require a trial, as opposed to foregoing a trial by indicating a guilty plea, did he give any indication of remorse or that he was going to spare the victims the difficult experience of testifying. Mention has been made, instead, of what counsel may have said to each other. Talks among counsel are not something the court is entitled to be aware of; or should ever be told about. Privilege attaching to the clients, which they alone can jointly waive, is what enables such talks. Further, the court assumes that in every case, civil or criminal, the parties’ legal representatives will responsibly conduct a dialogue on what might be done towards resolution. In a criminal case it is the entry of a plea that matters and the timing of that step or of a definite indication by open letter. It is well settled that an early plea, as in a signed plea, may attract up to around 30% off the headline sentence as a mitigating factor, while even at a late stage, after a trial date has been set, accepting guilt is still worth something, perhaps 15% off; The People (DPP) v Shaun Kelly [2015] IECA 250, and see also The People (DPP) v Faulkner [44]. Here, the official indication of a plea was very late.

Circumstances here

12. These offences cover around 8 years, affecting two girls from the time they were little children and into their adolescence, with whose mother GN was in a relationship with. She came from another country. She settled into Ireland and thought that because of GN that she had a secure existence whereby she could bring her daughters from abroad to be educated and to be part of a stable family group. That was not to be so.

13. As described by the trial judge, addressing her sentencing remarks, from 2013 up to 2020, one girl, Ms A, was sexually assaulted from age 8 to 16, involving the appellant rubbing his “penis against [Ms A’s] buttocks, touching her genital area, touching her buttocks, touching their thighs, sucking her breast, moving [his] body against her back and pressing [his] genital area against her buttocks, sucking her breast and biting her nipple.” The judge noted the repetitive nature of the violence against both girls. As to Ms B, the offences were similarly grave. The judge said the offences were perpetrated by “touching her buttocks, by touching her vagina, by touching her breasts, by squeezing and sucking her breasts to the point where she required medical attention, by touching her thigh and by holding her down on [his] lap.” While the repellent details may slightly differ from incident to incident, in terms of the abuse suffered, there is nothing manifest in the papers to differentiate Ms B and Ms A.

14. The offences were reported, eventually, when in the ordinary way one of the girls started a relationship with a boy of her own age and became upset by physical contact. What had happened to both Ms A and Ms B emerged within the family and then by way of complaint to the Gardaí. On this being revealed, GN could then have admitted what had happened to both girls. He did not. This is not an aggravating factor and cannot operate to increase a sentence. There is no compulsion to incriminate oneself. But admitting a wrong may reveal sorrow at the intrusion into, and shattering of, the human rights and entitlement to dignity of young people. Hence, there may be mitigation through admission and remorse, where that happens. It did not. In addition, but very late, there are two letters to the victims expressing remorse. That comes in a context where what is genuine could have been revealed as reliable closer to GN’s conduct being discovered.

15. In contrast to the language in what has been presented as representing letters of apology to the two victims, both have given victim-impact statements. These are eloquent in laying out in stark terms the effect that persistent abuse has on the lives of children. The harm does not end with adulthood but continues. Everyone is entitled to their sexual life and it is clear that into adulthood, both these victims have been, and will continue to be, afflicted with repulsion at human physical affection. Both victims experience flashbacks to the repellent nature of what should have been a secure childhood. At a time when they were especially dependant on GN, with little language in common, and as visitors trying to integrate to new schools and surroundings, he was the antithesis of what a person in the place of a parent, and later by marriage to their mother, a stepfather, should be. Intimate contact and trust in men has been dissolved and replaced by distrust and repulsion through boyfriends seeming to embody what GN was to them. Progress in education, in work and in life generally has been more than challenging as a result.

Changes in the maximum sentence

16. A maze was created by the various legislative, but uncodified, interventions into the maximum sentence for this offence. Indecent assault on a male was a common law offence and indecent assault on a female was also a common law offence with the penalty set out in s 6 of the Criminal Law Amendment Act 1935. There, two years imprisonment was the maximum penalty for the first conviction, with provision for penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years for the second or subsequent conviction. In light of penal servitude now being imprisonment, that then made, and now makes for pre-1981 offences, little sense.

17. Because of SM v Ireland (No 2) [2007] IEHC 280, [2007] 4 IR 369, this penalty is, if relevant, also the penalty for indecent assault on a male. The Criminal Law (Rape) Act 1981 was commenced on 6 June 1981. Between the 6 June 1981 and 17 January 1991, the offence of indecent/sexual assault on a female continued to be a common law offence but the penalty was provided for by s

10 of the Criminal Law (Rape) Act 1981. The penalty was increased by that section to 10 years. Indecent/sexual assault on a male remained a purely common law offence in definition, as does sexual assault on a female, but attracted a penalty of 10 years to reflect the new higher penalty for indecent assault on a female. From 18 January 1991 the offence of indecent assault on a male or female became known officially as sexual assault, without any change in definition, with the penalty provided for in s 2 of the 1990 Act. Thereby, the penalty was reduced to 5 years. As noted, aggravated sexual assault, attracting up to life imprisonment, was introduced, thus drawing a marked distinction in penalty, as well as by additional elements for aggravated sexual assault, between the offences. That lessening of the penalty for sexual assault may make sense by an increase in the penalty for aggravated sexual assault. By virtue of s 37 of the Sex Offenders Act 2001 the penalty for sexual assault on a child aged 16 or younger was increased to 14 years while the penalty for sexual assault on an adult, or where the under 17 element was not charged, was increased to 10 years. This section was commenced on 27 September 2001. The complication is not unravelled by the Criminal Law (Sexual Offences) Act 2017, which introduced new offences including sexual activity in the presence of a child, inducing a child to touch a person sexually, causing a child to watch pornography, creating or participating in child pornography, trafficking for abuse purposes, defilement of a child under 15, defilement of a child under 17; with the legislation also revising incest provisions and other consequential changes. Under ss 16 and 17 of that Act, sexual acts with a child carry up to life imprisonment where the victim is under 15 years and seven years where the child is over 15 years and under 17 years. Definitionally, the offence is one of “sexual activity”, which is defined as buggery or rape. Where a person was under 17 years at the time of the offence, a sexual assault can carry up to 14 years imprisonment, if charged as such, and otherwise 10 years imprisonment for victims of 17 years or more; the Sex Offenders Act 2001 amending s 2 of the 1990 Act, commenced on 27 September 2001. In The People (DPP) v Maher [2016] IESC 31, [2016] 2 IR 634, the Supreme Courts tabulates these changes.

18. The District Court has jurisdiction where, on a sexual assault, the judge is satisfied that the alleged offence is a minor one under Article 38.1 of the Constitution, the Director of Public Prosecutions consents to summary disposal and the accused opts for trial by judge alone. In which case, on conviction, or plea of guilty, the maximum penalty is 12 months imprisonment, subject to two or more sentences on separate offences (which are not the same event) not exceeding 24 months, or a class C fine. In terms of principle, and in suggesting the collation of determining factors in setting a headline sentence, what follows is also relevant to the disposal of summary offences; though bands within the maximum jurisdiction for minor offences of 12 months imprisonment for one offence or 24 months for multiple offences cannot here be set. Rather, the principles which follow as to the gravity of offending can be applied by judges of the District Court.

Principles

19. In this Court offering guidance, it is appropriate to dispose of three factors. Firstly, a sentence is limited by the maximum term of imprisonment provided for. But, that does not mean that where the penalty is wholly and obviously inadequate for what has occurred, that variations away from the worst activity needs to attract a fraction of the maximum penalty. Where the penalty is inadequate, where it clearly was for indecent assault until the maximum sentence was reset, it is the offending and the harm to the victim which attracts the penalty and not a division of the sentence into upper, middle range and lower range punishments. That same principle must apply where the maximum penalty was 5 years imprisonment. Secondly, by increasing the penalty, the Oireachtas has exercised its exclusive law-making power under Article 15.2 of the Constitution and the democratic mandate under Article 5 requires the courts to recognise that the people’s representatives regard such offences more seriously, while at the same time abiding by the principle that only a just sentence should be imposed; Ellis v Minister for Justice and Equality [2019] IESC 30, [2019] 3 IR 511, [2019] 2 ILRM 420. Thirdly, while the penalties have risen and fallen, the Court is not here always dealing with a 10-year maximum regime of imprisonment in the cases cited as examples or, where under 17 years, a 14-year maximum regime. But, it is that maximum on which guidance is most needed because of the variability of the forms and gravity of sexual assault. That 10-year maximum, and, for victims under 17, that 14-year maximum is therefore what this judgment addresses.

20. Where there is defilement of a child, and that is charged and there is a conviction, the penalty there is addressed by this Court in The People (DPP) v JMcD [2021] IECA 31, and where there is a conviction for rape or the akin offence of s 4 rape, the analysis of the Supreme Court in The People (DPP) v FE [2019] IESC 85, [2021] 1 IR 217, [2020] 1 ILRM 517 applies. Since the FE case is current in its analysis of rape, and by analogy s 4 rape, that case should be followed for rape, s 4 rape and for non-consensual buggery. Fourthly, analyses of sexual assault should bear in mind the more condign penalty on which rape is based and on which s 4 rape and non-consensual buggery is based and on which aggravated sexual assault is based, and that, in contrast, the maximum sentence for sexual assault is 10 years, unless a child is under 17 and the offence was committed after the commencement date; in which case a proportionate increase on what follows should be appropriately considered depending on the band of gravity into which an offence falls. Finally, a sentencing guideline judgment is of no assistance unless it is compact, clear, comprehensive, to the point and recognises the function of sentencing judges in assessing facts as well as the duty of counsel for the prosecution to guide the judge as to (a) the maximum penalty in the particular circumstances and (b) why the facts of any particular case are within a band of gravity in fixing the headline sentence before any mitigating factors are taken into account. Hence, the approach is mediated on why, on its facts the offending conduct in any particular case may be of either lower, medium or high gravity, as the case might be, and accordingly should fall to be sentenced within the guided band of penalties appropriate to cases of such gravity.

21. Principally, one must have regard to judicial experience and should always bear in mind ordinary sense. It is profoundly degrading for any person to be subjected to any sexual assault. While sexual assault is, in terms of the penalty set in legislation, a lesser offence than aggravated sexual assault, than s 4 rape, than non-consensual buggery, and also than rape, it remains beyond any argument a grievous violation of the victim. That violation, of the nature of the offence of sexual assault, will vary in degrees of gravity. With rape, and with s 4 rape and with non-consensual buggery, the nature of these offences is deliberate and without consent penetration of the body by an object, or with the male penis; a gross violation of the human right to dignity and bodily integrity. In providing for aggravated sexual assault, the Oireachtas have established that some categories of sexual assault are so degrading as to carry the same sentence as for rape, for nonconsensual buggery and for s 4 rape; namely life imprisonment. In which cases, for analysis, analogy with the examination in FE is appropriate in sentencing as is the duty of the prosecution to suggest on a reasoned basis the relevant band to the sentencing judge.

22. This judgment draws on the decided cases in this Court and on the academic commentary whereby the logic of identifying and applying appropriate headline sentences has been set out; see principally, Ashworth and Kelly, Sentencing and Criminal Justice (7th edn, Hart Publishing, 2021), O’Malley, Sexual Offences: Law, Policy and Punishment (1st edn, Roundhall, 1996), O’Malley, Sexual Offences (2nd edition, Roundhall, 2013), O’Malley, Sentencing Law and Practice (3rd edn, Roundhall,

2016), O’Malley, Sentencing: A Modern Introduction (Clarus Press, 2025) Griffin, Sentencing Serious Sex Offenders: How Judges Decide when Discretion is Wide (Policy Press, 2025), and on the England and Wales analysis for the purpose of guidelines and on the New Zealand sentencing guideline cases of R v AM [2010] NZCA 114 and R v F [2025] NZCA 385 and on other academic studies. At a basic level of experience, the Court draws on its own analysis over a large series of decided appeals.

Upper range

23. Offending in the upper range of gravity tends to involve persistent violations of trust, as with people acting in a parental capacity, or as guardians; where the offences form a series; where children or the vulnerable are targeted; or where the intrusions are of a gross and particularly damaging kind. These will be offences where the victim is subjected to the kind of treatment in the most grave category, but, in addition, the harm done is psychologically damaging. Such offences may involve abduction or imprisonment, the application or threat of violence, repetition of the crimes, or long duration in the offences themselves, or in the series of crimes they make up. The waylaying of a victim or intrusion into a person’s home through deception or force is also especially grievous. Here, and in what follows, grievousness references the culpability of the conduct together with the harm meted out on the victim or victims.

24. Regrettably, the courts have seen many instances of sexual assault in this most grievous of general but, nonetheless, indicative categories. These have involved multiple and repeated targeting of the same, or a series of, victims and where those subject to the abuse were psychologically vulnerable, or did not fully understand the situation, or were bullied into silence.

25. Such circumstances will bring the headline sentence imposed into the upper range of around seven years to ten years, unless the person on whom the assault was committed against is a child aged 16 or younger, wherein a higher penalty applies if that offence was charged. With a child, “a person under 17 years of age”, being the definition in s 2 of the 1990 Act as amended by s 37 of the 2001 Act. There the upper range is appropriately 9 to 14 years imprisonment.

26. Such a case on the upper end of the scale can be seen in The People (DPP) v JM [2025] IECA

167. There, four separate incidents of offending took place. The respondent was the victim’s grandfather, and each incident involved sexual assault and attempted penetration of the victim during a period in which she was six to 13 years of age. The first of these occurred in a shed in the woods, used for deer-watching, wherein the victim was stripped from the waist down, and penetration was attempted. Offending in respect of the other three counts were of a similar nature. The gravity of the offending was considered in re-sentencing the respondent in this Court. The analysis was based on a number of factors, including the far-reaching levels of harm inflicted on the victim, the culpability of the respondent, her young age, the fact that the offending occurred on multiple occasions, the general grave nature of the offences, and that there was a breach of trust due to the familial relations present. The appropriate headline sentence was said to fall between nine and a half and 14 years of imprisonment where sexual assault on a person under 17- years had been charged. An 11-year headline sentence was nominated in that case.

27. As in JM, it is often an aggravating feature of cases within this upper range that the victims will have been abused by individuals whom they trust. However, this is not always the case; nor is it always the case that only young victims are set upon. But, because of the limitation on the penalty, the band comprises cases in the six-years to ten-years band where victims of 17 years or older are involved. The People (DPP) v Holland (Central Criminal Court, February 14, 2011) is such an example. There, after a night of socialising, the adult victim entered the defendant’s apartment, the defendant having offered to facilitate her to ring a taxi. A violent sexual assault then ensued; the defendant choked and restricted the victim’s breathing, tearing out a piercing from her face in the process, demanding to fondle her. He threatened to rape her, undressed her and attempted to part her legs, badgering the victim to choose between vaginal sex or oral sex. The victim performed oral sex for a moment, escaped to the bathroom to message her father, before once again being commanded as before. She complied under duress briefly before her phone rang, after which the defendant told the victim to get dressed and to leave. The defendant was sentenced to 8 years imprisonment with the final 3 years suspended on certain conditions.

28. Therefore, cases which fall into this most grave category of sexual assault are generally, but not limited to, those that display particularly aggressive, degrading, or intimidating conduct, even if occurring on one single incident, or those that involve a breach of trust, a vulnerable and or young victim, or a pattern of multiple and repeated instances of sexual assault of a grave nature. Other cases which display similar degrees of gravity are as follows: The People (DPP) v MJ [2023] IESC 4, The People (DPP) v ML [2015] IECA 82, The People (DPP) v KC [2019] IECA 126, The People (DPP) v J (T) (Unreported, Court of Criminal Appeal, Keane J, 6th November, 1996), The People (DPP) v TCW [2010] IECCA 95, The People (DPP) v GN [2024] IECA 158, The People (DPP) v SD [2016] IECA 285.

Middle range

29. Again, to reiterate, references to gravity incorporates culpability of conduct as well as harm to the victim or victims. Convictions for sexual assault which fall within the middle range of the scale tend to show gravity below those in the upper range. However, headline sentences within this category typically, but do not necessarily, range between three and six years. On the high end of this bracket are cases such as The People (DPP) v Soman [2016] IECA 37. There, an adult woman advertised a room which was described as being for rent. The appellant, using a false name, arranged a viewing and entered her apartment. He behaved in a dominating and compelling manner, made her show parts of her body, and then sexually assaulted her, including digital penetration. He left, pulled her hair while departing and then continued to harass her with texts. A six-year headline sentence was nominated in that case.

30. The case of The People (DPP) v NB [2023] IECA 201 also offers guidance as to this bracket. There, four instances of sexual assault led to the imposition of a four-year headline sentence. The offending involved a girl aged between 12 and 14 years, and the respondent, who was in a relationship with her mother, and who was father to one of her siblings. The four incidents involved inappropriate touching of the victim’s breast area while grabbing her, forced kissing, rubbing the victim’s genitals over her clothes, and rubbing sun lotion on the victim’s back and breast area. It was emphasised in NB, that because the fact that the assaults were of a varied nature, were not isolated incidents, and involved a young child, a four-year headline sentence was appropriate. It will be noted that these incidents, while repellent, were less grave than in the case now under appeal. In that case also there was breach of trust, but a familial relationship was not established.

31. In The People (DPP) v MC [2015] IECA 313, a headline sentence of three years and six months was nominated. The appellant and the victim were adults in a relationship, and during one evening in bed together, the victim expressed unhappiness with the state of their relationship. The victim turned over on her side at the end of the conversation, which angered the appellant who pinched her buttock and attempted to pull her towards him. The victim deflected this, and the appellant tried to repeat this action. The appellant pulled the victim over by the legs. The victim expressed that she did not want any sexual activity. The victim’s legs were forcibly pulled apart, and the appellant used his body weight to hold her legs apart. The appellant then digitally penetrated the victim with his finger, and fondled her breast area and attempted to kiss her. During the incident the appellant insinuated that the victim “liked it rough”. This came to an end when the victim began to cry. For other cases within this band see: The People (DPP) v PR [2019] IECA 150, The People (DPP) v Ficarelli [2020] IECA 179, The People (DPP) v SH [2023] IECA 206, The People (DPP) v AD [2018] IECA 308, The People (DPP) v Haig [2023] IECA 299, The People (DPP) v DH [2024] IECA 71, The People (DPP) v Stewart [2016] IECA 369, The People (DPP) v M O'N [2018] IECA 305, The People (DPP) v P (J) [2014] IECA 54.

Lower range

32. It should again be emphasised that all sexual assaults are serious. Furthermore, gravity again refers to the culpability of the criminal conduct together with the harm done to the victim. Certain incidents, whilst entirely reprehensible, involve circumstances which reduce the overall gravity of the offence, and are considered less grave when compared to other cases. This may lead to the imposition of a non-custodial sentence having regard to the circumstances of the case and where there is a sufficient and convincing weight of mitigation. Custodial sentences within the lower range may typically span from 18 months up to three years.

33. In The People (DPP) v CS [2022] IECA 282, the appellant and the victim, both adults, had been out socialising in Dublin and had engaged in consensual sexual relations. That night, the appellant indicated he wished the victim to perform oral sex on him, which she refused, and he also indicated wanting to have unprotected sex, which again the victim refused. The victim fell asleep and woke up to the appellant on top of her, groping her breast area. The victim asked the appellant to stop, and he did. Here, a headline sentence of two years and six months was nominated. An appeal was brought against the severity of the sentence, the main argument being that the offence was at the lower end of the scale and that such a severe sentence was not appropriate in the circumstances. It was found that, in any case, the sentencing judge had not placed the headline sentence at the very top of the bracket within the lower range of sexual offences, and that the gravity of the facts, namely that the victim was asleep, and the nature of the assault meant the trial judge was entitled to place the headline sentence at that level.

34. Similar offending can also be seen in The People (DPP) v DH [2023] IECA 203. There, the appellant was living with his partner who had a 12-year-old daughter. She was the victim. One day when left alone with the appellant, the victim placed her legs on the legs of the appellant while in the sitting room. The appellant massaged her feet, but then moved his hands over her trousers to touch her vagina, then proceeded to move under her trousers, before moving under her underwear to rub her genital area. What was involved was not part of a series of offences. A headline sentence of two years and six months was nominated in this case. For other cases that fall within this range, see: The People (DPP) v Hilliard [2018] IECA 293, The People (DPP) v FM [2022] IECA 40, The People (DPP) v McKenna [2019] IECA 170, The People (DPP) v Krol [2017] IECA 205, The People (DPP) v Donohue [2017] IECA 244, The People (DPP) v WO'M [2025] IECA 102.

Good sense

35. Principally, ordinary good sense is the foundation for sentencing in an offence which can vary in gravity, in terms of the harm to the victim and the culpability of the offender, from momentary touching outside clothing, to such intrusions at the other end of the scale as make it difficult to differentiate the wrong from attempted rape. Where aggravated sexual assault is charged or attempted rape or attempted non-consensual buggery or s 4 rape, and sexual assault is the verdict with not guilty on these offences, the sentence has to be on the basis of that lesser offence; one which carries (unless historical) up to 10 years imprisonment or if the victim is under 17 and charged as such, 14 years, while the other offences carry life imprisonment.

36. Again, good sense and experience will suggest the factors that tend to move an instance of offending, or series of offending, from a lower range to a higher range to the upper range: 1) what happened to the victim, in terms of the grossness of the conduct; 2) who the victim was in relation to the perpetrator; 3) the age and maturity of the victim: 4) the harm done to him or her; 5) the isolated, or repeated, or persisted-in, nature of the offence; and, for mitigation, after a headline sentence is nominated, 6) the attitude and personal circumstances, such as age or maturity, of the offender. These factors at 1) to 5) indicate on a scale where the individual details tend cases towards upper range, medium range and lower range sentences before any mitigation 6) may be factored into the ultimate sentence.

Fundamentals

37. A reading of the cases and of the response of this Court in sentencing enables the isolation of the factors whereby gravity of offending may be identified. If what was involved was touching outside the clothing, that is less grave, most especially if it was momentary and was not persisted in when the victim noticed or responded. In this context, it should be noticed that, as a matter of law, not protesting is not the giving of consent. But, if there is a series of such offences, for instance of targeting women on public transport, the level of gravity escalates. Where in a situation of consensual physical courting, a sudden grab is made at the victim, that is wrong but if such conduct is persisted in and if force is used in a determined and intrusive way, or where the touching moves from outside the clothing to inside, the gravity of offending increases.

38. Many cases have come before the courts of young adult people, for instance after a party, sleeping trí na chéile on the floor of a home or sharing beds while clothed or substantially clothed. Rapes have occurred in these situations where the young woman (most usually) wakes up to find someone penetrating her. Clearly, rape will be prosecuted and sentenced as rape, but where an unwanted sexual touching takes place while the victim is sleeping or semi-awake, the degree of the touching, the persistence and duration of the activity and whether there is immediate desistence sets the offence as being either in the lower range, or medium range category or moves it into a band of greater gravity. A passage from O’Malley, Sentencing Law and Practice (3rd edition, Roundhall, 2016) [379]-[380] is instructive:

13-20 At the lower end of the scale, assaults that consist solely of indecent touching, including so-called groping, may be punished by a fine. Suspended sentences are sometimes imposed for offences in this category although, as always, a court should not impose a suspended sentence unless satisfied that the offence is sufficiently serious to merit some term of immediate imprisonment. Short prison terms have been imposed where the physical element of the assault may not have been particularly intrusive but where the surrounding circumstances caused considerable fear or distress to victims. A man who pleaded guilty to sexually assaulting six women on Dublin buses on different occasions over a four-year period was sentenced to three years' imprisonment with the last 16 months suspended. On each occasion, he sat next to the victim, put his hand on her leg and began to masturbate.

39. What is to be noted is that the lower range category, where perhaps some lesser penalty may be imposed, should be moved into a medium or into the upper range category because there was a series of offences. Similarly, where there is a breach of trust; especially a repeated or systematic series of events. This indicates a degree of structured conduct. While any assault in the context of a relationship is a criminal wrong, as noted in the previous paragraph, where an unknown person intrudes into a person’s life while they go about their ordinary day-to-day business, an aggravation occurs.

40. The younger the victim is, the worse a sexual assault is. Similarly, with a breach of parental trust or other fiduciary relationship. Thus, with young victims it is difficult to categorise even fleeting intrusions as in the lenient category. But, that may become more possible where the violation occurred while clothed and where the sexual circumstances were at the lowest level, and with the effects on the victim consequently less damaging.

Headline first, mitigation second

41. In setting the headline sentence, it is in the application of a shrewd assessment of the harm done and the culpability of the offender that this offence of sexual assault is to be approached. It may be useful, and it is clear from the case law that it is usual, for a judge to posit the gravity of an offence based on factors that the courts have identified from the case law, and academic studies cited, as key indications of culpability and as tending to add to the burden on victims:

1. Was the sexual assault one which was fleeting or which was persisted in on being noticed.

2. Was that conduct repeated on more than one or, more gravely, on several occasions.

3. What was the degree of intrusion on the victim in terms of the removal of clothing, the persistence of violation of the sexual organs, or breasts of a woman, or was there no direct contact; in other words, the gravity of the violation.

4. What relationship did the victim have to the perpetrator, since where trust is violated, the harm is more profound.

5. Was this a series of offences involving repetition either against the same or against a number of victims.

6. As part of the event, was there a waylaying of the victim, or detention for the purposes of perpetration.

7. Has there been planning.

8. What was the degree of force or coercion and in what circumstances.

9. What was the age of the victim or victims.

10. Was there grooming, in the sense of preparation of the victim by showing them pornography or inducing them into a more vulnerable state by structured action, or has there been a recording of the incident with a view to dissemination.

11. Has there been a prior conviction for a crime of sexual violence or a prior charge, though not yet brought to trial, where the instant offence was committed whilst on bail in which case there may be statutory consequences under s 11 of the Criminal Justice Act 1984 as substituted by s 22 of the Criminal Justice Act 2007.

42. Basically, while supported by the case law and by academic analysis, these factors may be seen as an approach based on good sense. All of these are aggravating factors, where present. In applying these factors, a sentencing judge will be careful where there has been a charge on a more serious offence, for instance of rape, but where there has been an acquittal of that offence, not to sentence as if a guilty verdict had been returned on that count.

43. Mitigating factors may include: an early admission of guilt; immediate desistance from exploitative conduct; deliberate geographical distancing from the victim (for instance, by leaving a common residence or by being absent when the victim visits after a first offence or series of offences); genuine remorse (though paying off a victim is a legal impossibility and compensation offered cannot extinguish appropriate punishment); childhood or other sexual trauma; and the factors usual to every case such as contribution to the community, good conduct, and exemplary conduct where a number of years have passed before reporting; The People (DPP) v PH [2007] IEHC 335.

44. In rare cases, the path to the verdict, in other words the actual set of facts on which a conviction is based, may be obscured due to the accused admitting to some conduct and the victim, as is very often the case, testifying to a much more grave situation. Normally, the path to verdict, in the form of questions for the jury as part of the judge’s charge, will make clear the basis of a guilty verdict. But, if necessary, with a view to determining gravity, the trial judge can, in those very unusual cases, ask the jury a specific and carefully worded question as to the basis of their verdict; see The People (DPP) v Piotrowski [2014] IECCA 17.

Overall sentence

45. Overall, complications to sentencing arise when there is a series of offences because, then, the court is challenged to find a totality to the sentence which meets the gravity of the conduct. That headline sentence may involve concurrent sentences. But, where there are, as here, two victims, or in some cases several victims, an approach based on the acknowledgment of the wrong done to each victim may better reflect the intrusion involved. This is the subject of definitive guidance by the Supreme Court in The People (DPP) v MJ [2022] IESC 50, [2024] 1 IR 523. There, O’Malley J explained:

38 As I observed earlier, it cannot be expected that a judge today will regard sexual offending against children in quite the same way as a judge of forty years ago might have done. Furthermore, where the modern judge is operating a legal regime that permits of a maximum sentence of two years only, it is entirely possible that the judge will feel that although the evidence demonstrates a series of offences of increasing seriousness, even the less serious may warrant a headline sentence of close to the maximum. That is not in itself illogical. Subject to what may be required by the totality principle, it is not necessary to artificially reduce the headline in respect of any individual offence.

39 It is true that the courts of this jurisdiction have often approached sentencing in a case of sexual assaults against one victim on the basis that concurrent sentences are more appropriate than consecutive, and that it has been said that consecutive sentences should be utilised “sparingly”. However, “sparingly” does not mean rare, or exceptional. It is not necessarily an error in principle to impose consecutive sentences where the trial judge considers that concurrent sentences will not adequately reflect the gravity of sequential offending against one victim – see, for example, the decision of the Court of Criminal Appeal in People (DPP) v. McKenna (No.2) [2002] 2 I.R. 345. The court has a duty to impose a sentence that fairly reflects both the gravity of the accused's behaviour and his culpability, and it may be that, in a given case of historical offending, concurrent sentences within the maximum parameters of the available sentences will not do so.

40 In People (DPP) v Farrell [2010] IECCA 68 O'Donnell J. described the necessity to observe the totality principle in the following terms:

“The imposition of a consecutive sentence carries with it a particular obligation to ensure that what is described somewhat cumbersomely as the “totality principle”

is observed. It is a commonplace of many types of assessments that the consideration of the component parts risks sometimes missing or exaggerating the value of the whole. This observation applies in the context of sentencing because the construction of the sentence involves not just the identification of the harm to victims, but also an assessment of the culpability of the accused.

In the field of sentencing, it is certainly the case that there is a principle of totality, which requires that when consecutive sentences are employed, a court must be careful to take account of the overall impact of the sentence, the moral blameworthiness of the accused and the prospect of rehabilitation, and therefore recognises that the total sentence in some cases should be less than the sum of the component parts.”

41 As in many other contexts, the decision of a trial court or, for that matter, an appellate court, will not necessarily be vitiated by failure to specify and expressly analyse every matter that must be taken into account in reaching a decision. However, if a significant factor is not expressly dealt with then it should at least be implicit in the court's reasoning.

Unfortunately, I cannot discern from either the transcript of the Circuit Court or the judgment of the Court of Appeal that the principle of totality was taken into account. The language of the judgment, expressly resting the decision on the age and lack of criminal convictions of the appellant, does not seem to me to leave any scope for inferring that it was.

Analysis of the sentencing judge

46. Without the guidance which structures the approach to this most variable of offences, the trial judge’s approach was not sufficiently informed. The court understands that where there are sentencing band judgments, as in burglary, assault, manslaughter, rape and several other offences, the Director of Public Prosecutions will offer reasons as to why offending is seen as coming into a category of gravity. This judgment establishes such guidance. The trial judge did not have the benefit of this analysis or of submissions from the Director. The trial judge’s sentencing remarks now follow:

It is also relevant that when these offences started, they were new to Ireland. They had just arrived. They did not have an extensive network of friends or family, outside of their mother and visits from their grandmother. They were vulnerable to abuse by you, and you took advantage of that. You threatened them that their family would be broken up if they told on you, and that is a horrible thing to do to a child. You groomed [A] initially by being nice when she first moved in, and then you started to abuse her.

The length of time over which these offences took place is also an aggravating factor. For [A], they commenced in 2013 when she was eight and continued until June 2020 when she was 16. For [B], they commenced when she was seven and continued until she was 15.

These offences took place in their home, which should be a place of safety for them, but they also took place outside the home: in the car, in [A’s] case she went shopping, and for [B] at the place where she was doing her work experience. So, not only was the security and safety of their home violated, but they were left to feel safe nowhere. They never knew when or where you would assault them. They had to remain constantly vigilant, and that is an aggravating factor.

While this was still happening, [A] developed a hatred for herself and her body. She struggled with self-harm. She cut her thighs and arms after every time you groped her.

Even after the abuse was disclosed, she felt the only one on her side was [B]. Her relationship with her whole family was affected, but particularly that with her mother. She was diagnosed with PTSD and had vivid nightmares that this was still happening to her. She couldn't go anywhere feeling safe, and she felt she would pass out from anxiety and to cope with this. She had to turn to alcohol and weed. Only now does she know that it wasn't her fault.

…

Child sexual abuse is a scourge in our society, and in this day and age, and at the time when you were committing these offences, no one could possibly be unaware of the serious, lifelong damage done to children who are repeatedly sexually assaulted by persons in positions of trust. The maximum sentence for these offences is 14 years. The very highest range of this is reserved for offences against very young children. Nevertheless, given the duration of these offences, the violation of trust and the place of safety in the home, and the grooming of vulnerable children, these offences are at the upper end of the mid-range, and I assess your appropriate notional or headline sentence for these offences against each complainant, for all the offences against each complainant taken together, as being nine years in respect of each of them

The second step is for me to address any reduction due to mitigating factors that are relevant to you personally, and these are your personal circumstances. The first and most important of these is your guilty plea. That is assistance to the State because it avoids unforeseen pitfalls in a criminal prosecution, but it also gives emotional comfort and relief to your victims. It saves them the trauma of having to give evidence which might have been challenged under cross-examination, and it gives them comfort to see that there is, at last, an acknowledgment by you that you have done wrong. But this wasn't an early plea. This indication was given only five days or so before the trial date. Notwithstanding that, I accept that it was of benefit to the State and to your victims

You've come before this court with no previous convictions and you have good references from your workplace and, indeed, from a soup kitchen where you volunteer. That reference doesn't indicate when you started volunteering or whether the referee is aware of the nature of these offences, but you were working with vulnerable adults and Mr. Godson felt he could trust you. But it does appear, with the very significant exception of these offences, that you have been a pro-social member of society until now. You've written letters of remorse to your victims. I note that both are in virtually identical terms, apart from a difference of one sentence between them. There was no offer of any compensation, despite your having had gainful employment and a good job as a finance manager, and there's been no mention that you've even offered to pay for their counselling.

Nevertheless, I accept that you are the father of their sister and that you are in a new relationship, and that there have been some difficult and tragic circumstances, which I will take into consideration. Regarding your likelihood of reoffending, it was stated that these offences were related to alcohol abuse while you were feeling isolated at home. Any serious alcohol abuse here is inconsistent with the work references that were provided, and nothing has been presented to suggest you have undertaken any rehabilitative work, either for alcohol abuse or for victim or offence awareness. However, your new relationship is supportive, and that, as I said, means no proactive steps would be a protective factor against further offending. But no steps have been taken by you to reduce your risk of reoffending.

As I say, the rationale for sentencing must be proportionality, and goals such as rehabilitation may be pursued as well as punishment. Taking all of those matters into consideration, I will reduce your notional or headline sentence to take account of those mitigating factors and, as I say, in particular your guilty plea, and I will reduce your sentence to one of six years for each of your victims, with all of the offences of each, with respect to each, taken into account.

Looking at the principle of totality, and in order to recognize both victims, I will direct that the sentence in respect of [A] run first and then the sentence in respect of [B]. That would make a sentence of 12 years, and having regard to the principle of totality, that is too long, and I will therefore reduce both sentences to three years. I'll backdate it to November 1st. As I said, they're to run consecutively, first that of [A], then that of [B], and in order to provide an incentive for rehabilitation, I will suspend the final 24 months of the sentence for a period of 24 months on the condition that you remain under the supervision of the Probation Service, attend all appointments with the Probation Service, engage in offenceand victim-focused work with the probation officer, including Safer Lives, or any other program deemed suitable by your probation officer, and that this will be on your own bond of €100.

47. The Court cannot approach these offences for which the maximum is 14 years on any basis other than they fit into the upper range of offending. Were the maximum penalty to be 10 years, as it is with those of 17 years and over, the same categorisation applies. These were repeated offences, against girls who were young, vulnerable, dependant and, from the victim impact statements, the harm done has been at the upper end of the spectrum for this form of sexual violence.

48. Appropriately, were the offence one to carry the maximum of 10 years imprisonment, the upper band of 7 to 10 years must be considered for the headline sentence. Appropriately, as here, where two female children are the victims, the band of 9 to 14 years is engaged as the upper range. The sentencing judge applied a sentence which appears to be a headline sentence of 9 years which was then reduced to 6 years for each victim. The judge directed that the sentence in respect of Child A be consecutive to that of Child B, making 12 years. Regard was then had to the totality principle, with a period of 12 years being held as too long. Both sentences were reduced to three years, creating an aggregate sentence of six years. The final two years were suspended. On the basis of the analysis offered here, which was not available to the trial judge, this approach does not meet the gravity of the offences.

Completion

49. The court will repeat the sentencing exercise by seeking any new information, should there be any, and then assessing the appropriate sentence in the light of this analysis. Hence, a separate short judgment on the now appropriate sentence will follow.