Court of Appeal quashes undue leniency sentence, imposing nine years imprisonment for each count of sexual assault.

APPROVED

THE COURT OF APPEAL

Record Number: 195/2024

McCarthy J. Neutral Citation Number [2025] IECA 273

Kennedy J. MacGrath J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2

OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTION

APPLICANT

-AND-

J.M.

RESPONDENT

JUDGMENT of Mr Justice MacGrath delivered on the 2nd day of May, 2025

1. This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review of the sentences imposed on the respondent on the 17th June 2024, on the ground of undue leniency. The respondent was born on the 1st May 1948. The victim, his granddaughter, was born on the 29th October 2001 and was aged between 6 (count 10, offending which took place between the 29th October 2007 and the 28th October 2008) and

13 (count 14, offending which took place between the 1st September 2014 and the 31st November 2014), at the time of the offending. While the respondent cooperated at interview following his arrest in 2020, he denied the accusations. He pleaded not guilty. On the 22nd June 2022, following trial by jury, the respondent was found guilty on five counts of sexual assault contrary to common law and as provided for by section 2 of the Criminal Law (Rape)(Amendment) Act 1990. He was found guilty on counts 2, 8, 10, 13 and 14 on the indictment. The evidence at trial was that the offending involved sexual assault which included attempted penetration of the vagina of the victim.

2. The counts may be summarised as follows:

a) Count 2 relates to offending which occurred in a deer stalking shed in woods in County Wicklow on a date between the 1st March 2009 and the 31st November 2009.

b) Count 8 concerned offending in a shed at the rear of the respondent’s home on a date between the 29th October 2008 and the 28th October 2009.

c) Count 10 related to offending at the complainant’s own home on a date between the 29th October 2007 and the 28th October 2008.

d) Counts 13 and 14 relate to offending inside the respondent’s home. Count 13 concerned offending on a date between the 29th October 2010 and the 28th October 2012, while count 14 concerned offending on a date between the 1st September 2014 and the 31st November 2014.

Evidence at Sentencing Hearing

3. Evidence of offending was tendered by Sergeant Michael Hall. He described the times and the locations where the offending took place. Offending took place either in isolated places or in circumstances where no other persons were present. One of the locations of offending was a shed in the woods used for observing deer. In respect this offending, which is the subject of count 2, the victim travelled there with the respondent. He assaulted her by stripping her from the waist down, placing her on a stump in the shed and applying Vaseline to her vaginal area. He then attempted to penetrate her. She felt pain from that attempt.

4. Offending in respect of count 8 took place in a shed at the rear of the dwelling where the respondent lived. The victim was able to give a detailed description of the layout and contents of the shed. She was approximately seven years old at that time. The respondent stripped her from the hips down. He was also naked from the hips down. He placed the victim on top of a wooden box, stood over her, masturbated himself in similar vein to what had occurred on the previous occasion in the hide, and again tried to penetrate her. Count

10 relates to an incident in the victim’s own home when the respondent was babysitting her and her brother. He was in an upstairs room playing on his Xbox. The offending was similar to that which had occurred on previous occasions whereby the respondent stripped the bottom half of the victim’s clothing. He placed her lying on a sofa. On this occasion he did not have lubricant but he tried to penetrate her. This caused her pain. She remembered that his penis was at the entrance of her vagina. This assault was brought to an end when movement was heard from an upstairs bedroom, suggestive that her brother might have been coming down the stairs.

5. With regard to count numbers 13 and 14, these were two incidents which occurred in the respondent’s home. They occurred at a later time when the victim was approximately

13. She had arrived home early from school. She related how the respondent informed her that he would cease doing what he was doing when she had her first period. On the occasion of this offending, the respondent placed the victim on the edge of a sofa and tried to penetrate her, but as on other occasions penetration was not achieved.

6. In light of the desire to obtain probation reports and legal aid for the purposes of obtaining a psychological report, the sentence was not concluded until the 17th June 2024. Given the age of the victim at the time of the offending, the maximum sentence applicable in respect of each of the offences is 14 years imprisonment.

7. In a plea of mitigation made on behalf of the respondent, various references and testimonials were introduced. A medical report suggested suicidal ideation on the part of the respondent and referred to preexisting problems of heart disease and difficulties associated with secondary diabetes, hypertension and non-insulin dependent diabetes. The court also had the benefit of sight of the report from the Probation and Welfare Services. The respondent has no previous convictions and has been of good behaviour since the time of the offending.

8. On the instructions of the respondent, counsel apologised on behalf of the respondent to the victim and to the wider family. The court heard that certain close members of his family are now estranged from him. Counsel raised the rhetorical question as to why the apology was being given at this stage. In answering, he referred to an extract from the Probation and Welfare Services Report which stated:

“Mr. M. has only accepted partial responsibility for his sexual offending against the victim and demonstrated a limited amount of remorse in the process. This type of partial acceptance of sexual offending behaviour often coincides with minimisation as through the passing of years or decades. It can be convenient to allow certain actions of the past slip from the memory in order to ease the personal feelings of guilt and shame.”

Counsel described this as an accurate assessment of the situation. Counsel also highlighted what was described as the respondent’s deeply felt sense of guilt and shame. He pointed to the respondent’s age, 76 at his next birthday, and his ill health. It was submitted that the offences were historical and that since then the respondent had been of good character.

9. The respondent’s offending against his victim has had a significant effect on her life. In her victim impact statement she described how it tore apart her family and took over her life. She suffered from anxiety, depressive episodes and episodes of self-harm. Her eating and sleeping patterns were disturbed and she experienced angry outbursts over small things. When depressed, she would shut people out, not answer calls or texts and did not wish to leave her home. She would cancel plans. Importantly, she found it hard to trust people. She became anxious where there were too many people in one place. She now does not trust many people around her daughter and she rarely leaves her daughter with anyone. She does not like being alone in the house and she does not feel safe. She states that she has suffered enough because of all of this and she is glad that she now has somewhat of her life back and no longer has to carry this burden.

10. The respondent was sentenced to four years imprisonment on each of the charges, to be served on a concurrent basis. The final twelve months of the sentences were suspended.

Sentencing – Exchange with Counsel

11. The following exchange took place between the sentencing judge and counsel for the prosecution: - “Judge… Would you give me some guidance on where you say these offences fall?

Reply: … Well if pressed, I say I haven’t taken any specific direction, but I can give you an estimate for what it’s worth Judge. I am not sure it is one that is required for this offence, but these are – the sexual assault constitutes in relation to all of the several complaints an attempt to penetrate a young girl of that age.

Judge: Okay I won’t press you but I take it that if we agree that we are not at the low end. Counsel: Certainly not Judge.”

The Sentencing Judge’s remarks

12. The sentencing judge considered the evidence of Sergeant Hall, the submissions of counsel and the contents of the Probation Report. He also considered the victim impact statement which he described as not being overstated or self-serving and in which the victim recited what the sentencing judge described as the reality of her life. He referred to the age of the respondent and his medical issues which include hypertension, heart issues and diabetes. He also considered the testimonials advanced in support of the respondent. He noted that it appeared that socially, the respondent had contributed significantly and had manifested what the sentencing judge described as an excellent civic spirit and social goodwill.

13. In his remarks, the sentencing judge described the actions of the respondent as being premeditated, planned and systemic, and recorded that the respondent had attempted to have full sexual intercourse with the child. He regarded the offending as amounting to an egregious breach of trust and stated as follows:

“Notwithstanding all of that, there has been one unavoidable and significant flaw in your character, and that has been your predisposition to this kind of criminality. The penalties available to the court … range from non-custodial options such as fines, community service and orders to fully or partially suspended prison terms to a maximum term of imprisonment of 14 years, or to a combination of some of these. Any penalty must be proportionate in two respects. It must first of all reflect the gravity of the offending conduct, and it must have regard to your personal circumstances as you view them. But I also have to consider that which would best serve the interests of society at large. I have to consider … the harm visited on the victim on the five occasions for which you have been found guilty. And I have to consider how that affects your victim and how it affects society in general.

I also have to assess your level of moral culpability. And I have to consider whether you acted negligently, recklessly or intentionally. There is no doubt in this case in these five counts that you acted intentionally. Now then, I have to think as to whether there are any specific factors which might tend to increase or reduce your moral responsibility. I have to consider your personal circumstances together with any aggravating or mitigating factors that arise. I have to assess whether you have shown any genuine remorse or displayed any appreciation of your wrongdoing and whether any restitution has been made or attempted by you, though noting always that the failure to do so won’t be considered an aggravating factor.”

14. The sentencing judge also referred to the respondent’s past record, that he had no previous convictions and his cooperation with the gardaí with whom he engaged when they knocked on his door in 2020. He referred to the respondent’s denial of the allegations. He stated that the respondent had paid an enormous price for his wrongdoing. He accepted the remorse, in the context which had been described, as a genuine remorse. In this context he referred to the probation report referred to above, where a partial acceptance was recorded.

15. In addressing the respondent’s age, he remarked that “it is difficult to face these kind of matters and potentially a custodial sentence” at 75 years. The aggravating factors included that the offending was premeditated, planned, systemic and of a particularly serious nature.

16. In determining the range of sentencing, the sentencing judge described the offending as being in the medium to high range in terms of the headline sentence. There was an egregious breach of trust with a person to whom he was in loco parentis. He also noted that the respondent was at moderate risk of reoffending.

17. Having determined that a custodial sentence was warranted, he decided that a premitigation sentence of five years’ imprisonment was appropriate. Taking into consideration mitigating factors, he imposed the sentence which is the subject of this application. In so doing, he referred to the fact that the victim had to give evidence and subject herself to what he described as the perfectly legitimate and well conducted cross-examination of counsel, but that this was something which did not help her. Given his age, health and the likelihood of re-offending, the sentencing judge suspended the final twelve months of the respondent’s sentence.

Grounds of Application

18. The applicant contends that the sentence imposed was unduly lenient. It is contended that the trial judge erred in principle in failing to attach sufficient weight to general deterrent objectives and in affording disproportionate and undue weight to the mitigating circumstances advanced at trial. The grounds are set out in the notice of appeal as follows:

1. Each of the counts referred to very similar, almost identical offending. In respect of each of the counts, the sentencing judge determined that the offences lay in the medium to high category. However, having placed the offences as such, the sentencing judge erred in law and in fact in fixing a headline sentence of five years, which sentence was too lenient in all the circumstances. The evidence at the trial and at the sentence hearing had identified that the offences had involved sexual assault that included attempted penetration of the complainant, when she was between 6 to 13 years of age, by her grandfather.

2. In then fixing a post mitigation sentence of four years the sentencing judge was incorrect in law and in fact in failing to have sufficient regard to the aggravating features of the case and in particular that the offences had involved sexual assault that included attempted penetration of the complainant, when she was between 6 to

13 years of age, the duration over which the offending behaviour occurred, the locations of the offending and the effect of the offending on the victim.

3. The suspension of the final 12 months of each of the sentences amounted to a twofold allowance for mitigation which was not warranted.

4. The sentencing judge erred in principle in failing to attach sufficient weight to the principle of general deterrence both in respect of the respondent and of other offenders in the future.

5. The sentencing judge placed disproportionate weight upon, and gave an excessive discount for, the mitigating features, and failed to take into account that the respondent was found guilty after trial.

6. In particular, the sentencing judge considered that the respondent had paid an enormous price for his wrongdoing when there was no evidence to support this finding.

7. The sentencing judge erred in principle in suspending the final 12 months of each sentence.

8. In all the circumstances the sentence imposed was unduly lenient.

The Applicant’s Submissions

19. The applicant identifies what it contends are a number of errors of principle relating to the headline sentence, the level of mitigation and the overall sentence imposed. It is submitted that by the imposition of concurrent sentences, insufficient weight was given to the fact that the respondent had been in a position of trust and responsibility and was the paternal grandfather to the complainant, whose trust he employed to abuse the complainant seriously and repeatedly. The Court’s attention is drawn to the following extract from O’Malley’s Sentencing Law and Practice (3rd edn, Round Hall 2016), where in particular at para. 13-35 it is stated:

“A court dealing with serial child abuse will be more concerned with identifying an overall sentence which fairly reflects the totality of the offending and the offending’s personal circumstances. The gravity of the offending conduct, its duration, frequency and intensity are the key consideration for this purpose.”

20. It is also submitted by the applicant that it is difficult to discern where mitigation arises, with the exception of the apology made by counsel on behalf of the respondent in his plea. It is also submitted that the trial judge, who had stated that the respondent had paid an enormous price for his wrongdoing, made such observations in absence of evidence in support of such finding.

Respondent’s Submissions

21. The respondent highlights the limited jurisdiction of this Court on an application under s. 2, and to the principles applicable on such application. In particular, the following points are made: -

a) The sentencing judge made an inquiry of the prosecution as to where the offences fell and ultimately, of his own volition, the sentencing judge concluded that “I take it that we agree that they are not at the low end”. When the remarks of the sentencing judge were considered in their entirety, he determined that the pre-mitigation headline sentence appeared to him to be in the order of five years imprisonment.

b) With regard to mitigation, the respondent submits that the trial judge considered and applied mitigation in a manner which was within his discretion. It is submitted that the sentencing judge took all matters that he was required to take into consideration in determining the sentence to be imposed. He had taken into consideration the age of the victim, the number of offences, the age difference between the parties, that the respondent was in locus parentis, the duration and location of the offending behaviour and the effect on his victim.

Principles Relating to this Court’s Jurisdiction in Applications under Section 2

22. Section 2 of the Criminal Justice Act, 1993 provides: “(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either: -

(a) 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

(b) refuse the application.”

23. The onus of proof rests with the applicant. This Court must afford the sentencing judge a considerable degree of latitude and ought to place great weight on his or her reasoning. As we have stated in many cases, it is of little assistance to ask whether, if a more severe sentence had been imposed, it would have been upheld as being right in principle, as the test to be applied on this application is not the converse of the inquiry made on an appeal against severity, rather it is to determine whether the sentence is unduly lenient (DPP v. Byrne [1995] ILRM 279, DPP v. James O’Reilly [2007] IECCA 118). Intervention will not be warranted simply because this Court might take a different view of the sentence imposed. The law goes further and dictates that nothing but a substantial departure from what is to be regarded as the appropriate sentence will justify intervention (DPP v. Stronge [2011] IECCA 79, DPP v. McCormack [2000] 4 IR 356). A clear divergence from sentencing norms must be demonstrated. As was stated in Stronge, in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the scope of sentence which is within the judge's discretion to impose. This Court, therefore, must be slow to intervene.

Discussion

24. The maximum sentence as established by law in respect of each of the offences is 14 years imprisonment. Here there are five such offences. In nominating the headline sentence, the sentencing judge described the gravity of the offending as being in the medium to high range but thereafter proceeded to determine a headline sentence of five years. On the face of it, the nomination of a headline sentence of five years was at odds with the sentencing judge’s assessment of the gravity of the offending. We are satisfied that the offending in this case was grave. It might fairly be described as being as close as might be to attempted rape. We are and must be conscious, nevertheless, that this offence has not been charged and is not the subject of the convictions. In our view, however, bearing in mind the nature of the sexual assaults involved, the culpability of the accused and the harm occasioned to his victim, her age at the time of the offending, the significant breach of trust by a person who was effectively in loco parentis to his victim and the frequency of the offending, the nomination of a headline sentence of five years in prison was too low. It did not reflect the culpability of the accused or the harm occasioned to his victim and amounts to an error of principle. We are also satisfied that by setting the headline sentence at five years, this had a resulting or knock-on effect on the sentence ultimately imposed to the extent that it was not only lenient but was unduly lenient. The sentence imposed departed from the norm and constituted an error or principle such that the intervention of this Court is warranted. We must therefore quash the sentence imposed by the sentencing judge.

Re-sentencing

25. We must now re-sentence the respondent. The court has outlined above the severe and grave nature of the offending in this case. There was a very serious breach of trust between a grandfather and his young grandchild. The offending was predatory and repetitive. Given the age of the respondent, we are satisfied that the principles of totality and proportionality are best achieved by the imposition of concurrent, rather than consecutive sentences. In so determining, however, the headline sentence must reflect the multiplicity of offending and the serious and grave nature of the offences. In such circumstances, and to reflect the Court’s total and global approach, we consider that the headline sentence must fall within the high range of sentence of between nine and a half and 14 years imprisonment. Bearing this approach in mind and taking into account the gravity of the offending, measured by culpability and harm caused, we are satisfied that the appropriate headline sentence is 11 years imprisonment.

26. There is very little mitigation in this case in terms of expressions of remorse or acceptance. The victim was required to give evidence and relive her experiences. A court must not and cannot punish an accused for contesting charges and pleading not guilty. Nevertheless, by taking that course he or she deprives himself or herself of mitigation that a guilty plea might otherwise attract. While it is suggested that there was a level of cooperation at interview with An Garda Síochána, the reality is that the respondent denied all allegations which were put to him.

27. The circumstances which the Court takes into consideration in terms of mitigation are the age of the respondent, his health status and health concerns, his lack of previous convictions and the pro-social life that he has lived between the time of offending and the time of trial. The court has regard to the fact that the respondent is entering prison at an advanced age and for the first time. We take into consideration his health issues as outlined in the medical report which was placed before the sentencing judge and that he will be well into his eighties before he is released. We are mindful that the sentence imposed ought not be crushing. The court also takes into account the testimonials which were presented to the court below. No new material has been placed before this Court and we approach sentencing on the basis that he has not come to the adverse attention of the prison authorities while he has been in prison. In all of the circumstances, however, and despite his advanced years we are satisfied that the appropriate reduction from the nominated headline sentence for mitigation, to include the factors referred to in this judgment, is two years. We believe that this is a generous assessment of mitigation, particularly in the absence of the expression of proper and fulsome remorse, acceptance and apology. An apology was advanced by counsel on behalf of his client at the sentencing hearing. This must, however, be viewed in context and take into consideration all other factors, including the contents of the probation report in which the respondent’s acceptance of responsibility is described as “partial” and where he has “demonstrated only a limited amount of remorse in the process”. In such circumstances, only very limited, if indeed any weight at all, can be given to the apology given its timing and the contents of the Probation Report .

28. In the circumstances, we therefore impose a sentence of nine years imprisonment in respect of count number 2.

29. We are also satisfied that there is, in truth, an absence of an evidential basis on which any portion of this sentence might be suspended. It is recorded in the report of the Probation and Welfare Service, dated the 13th October 2023, that while the respondent co-operated to some extent in the completion of a more in-depth risk assessment and accepted the outcome, he continued to demonstrate lack of remorse and empathy towards his victim. The following is also recorded under the heading “Victim Consideration”:

“[The respondent’s] level of victim empathy and awareness remains limited. [The respondent] displays a lack of regret for his criminal behaviour. [The respondent] has continued to minimise his sexual offending behaviour and demonstrated a lack of remorse towards the victim. [The respondent] was unable to recognise his offending behaviour as being sexually criminal, and he has demonstrated victim blaming behaviours and is unable to recognise the harms he has caused to the victim. . [The respondent] presents with a lack of empathy and consideration in relation to the gravity of his sexual offending. During his final assessment with the Probation Service, [the respondent] says that he believes that the victim should have recovered both emotionally and physically from his sexual offending”.

30. As stated, we have approached sentencing for the offending in this case on a total and global basis in order to reflect proportionality on the basis of the imposition of concurrent sentences. We are thus satisfied that the remaining counts should be dealt with on a concurrent basis.

31. This Court, therefore, quashes the sentence imposed on the respondent and imposes a sentence of imprisonment of nine years on each count, to run concurrently and to be backdated to the date that the respondent first went into prison in respect of his offending.