Court of Appeal reduces sentence for multiple indecent assaults by imposing consecutive terms with totality adjustments.

APPROVED JUDGMENT

THE COURT OF APPEAL

Record Number: 0286/2024

Neutral Citation Number [2026] IECA 24

Kennedy J. Collins J. Owens J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

G.H.

APPELLANT

JUDGMENT of the Court delivered on the 20th day of February 2026 by Ms. Justice Isobel Kennedy.

1. This is an appeal against sentence. On the 24th of July 2024, the appellant was sentenced to 8 years imprisonment in respect of 15 counts of indecent assault pursuant to the Offences Against the Person Act 1861 and the Criminal Law (Sexual Offences) Act 1935. The appellant pleaded guilty to 15 counts relating to three complainants on a full facts basis.

Factual Background

2. The appellant is the older brother of the three complainants, NC, FHP and PH; the family background was marked by domestic violence and sexual abuse by their parents. In respect of NC, the court was told that the appellant had abused her from when she was 14 years of age until she was 17 or 18 years of age. The first incident of abuse that NC could recall was when the appellant pushed her back into the bathroom as she was leaving, placed her hand on his penis and forced her to masturbate him. The abuse continued thereafter on a regular basis. The appellant would place his penis between NC’s legs and mimic sexual intercourse, as well as touching her inappropriately. The abuse ceased after an incident where NC, having found the appellant waiting for her outside the bathroom door, grabbed the appellant by his hair and kicked him in the shins. NC expressed in her statement to the Gardaí that she “just had enough”.

3. In respect of FHP, the court heard that she had been abused by the appellant from when she was 9 years of age to approximately 14 years of age. Her recollection of the abuse was very similar to that of NC. She stated that the first instance of abuse occurred when the appellant pushed her back into the bathroom as she was leaving and forced her to touch his penis and to masturbate him. The abuse continued thereafter on a regular basis consisting of masturbation and simulated sex. She also described that the appellant would sometimes attempt sexual intercourse without success. FHP recalled eventually telling her parents about the abuse, that her father had believed her but her mother did not; and that the appellant was taken to a priest and a doctor as a result.

4. In respect of PH, his first recollection of abuse by the appellant was when he was approximately 11 years of age. Again, the abuse consisted of simulated sex and masturbation, occurring on a regular basis. PH also stated that the appellant then progressed to forcibly masturbating him. The abuse ceased following an incident where PH refused to perform oral sex on the appellant and had threatened to physically harm the appellant if he attempted to force him.

Personal Circumstances of the Appellant

5. The appellant was 71 years of age at the time of sentencing. Counsel for the appellant told the court the appellant had led a “good and productive life” in the approximately 40 years since the offences were committed, and that he had no previous convictions at the time of sentencing.

6. A psychological report was submitted to the court which inter alia described the appellant as a psychologically resilient individual with good self-esteem, hardworking and self-disciplined, and being of a very low risk of sexual reoffending.

Sentencing Remarks

7. In terms of mitigation, the sentencing judge took into consideration the absence of previous convictions, his age at the time of sentence, remorse, and guilty pleas, albeit entered at a late stage after a jury was sworn.

8. The judge referred to the fact the appellant had suffered from abuse and that he had grown up in a “cold, dysfunctional family full of abuse”.

9. In relation to the aggravating factors, the judge took into account the nature of the offending, the frequency of the offending, the duration of the offending, the abuse of his position of trust, and the humiliation perpetrated on the complainants.

10. The sentencing judge found each of the offences to be in the upper range of seriousness and nominated a headline sentence of 22 months in each case. He remarked that there must be an element of consecutive sentencing in order to reflect the serious and persistent nature of the offending. He therefore imposed concurrent sentences of 22 months on four counts and 22 months consecutive on one count concerning each victim. The sentences in respect of each victim were imposed consecutive to one another, resulting in a premitigation sentence of 11 years. In respect of the guilty plea, the sentencing judge reduced the sentence by 18 months, and a further 18 months in respect of the balance of the mitigation, resulting in a global sentence of 8 years imprisonment. The sentence was backdated to the 14th of October 2024, when the appellant had been remanded in custody.

Grounds of Appeal

11. It is submitted that the final sentence imposed was excessive in all the circumstances, and in particular:-

(1) The learned sentencing Judge erred in fixing a headline sentence which was too high;

(2) Having done so, the learned sentencing Judge erred in also making sentences which related to the same victim consecutive on one another, thereby ‘double counting’ the seriousness of the offending;

(3) The learned sentencing Judge erred in the methodology by which he arrived at the final sentence, and should instead have considered the appropriate sentence in each case before considering the requirement for consecutive sentencing;

(4) The learned sentencing Judge failed to have any or any adequate regard for the principles of totality and proportionality;

(5) The learned sentencing Judge failed to have adequate regard for the mitigating factors present.

Submissions of the Appellant

12. The appellant refers to People (DPP) v JT [1998] WJSC-CCA 5565 and contends that individuals convicted of historical offences should be sentenced according to the social standards and values that prevailed at the time of the offence, which aligns with the courts long-standing view that delays in prosecution should neither disadvantage the accused nor grant any undue advantage to the prosecution.

13. The appellant submits that while the reasoning in JT is clear and still compelling, it is nonetheless dated. He remarks that society today has a far deeper understanding of the impact of child sexual abuse than in the 1970s, and the State’s limited insight at the time is reflected in the low maximum penalty for indecent assault. It is therefore submitted that if the State underestimated the seriousness of such an offence when setting the low maximum sentence, using “compound consecutive sentencing” to circumvent this issue amounts to a form of artificial calculation contrary to the principles of fairness and existing jurisprudence.

14. The appellant does not take issue with the fact that the sentencing judge imposed consecutive sentences in respect of each individual, as was within his discretion. However, the appellant submits that imposing consecutive sentences within each complainant and then again with respect to each separate complainant was unfair. In truth, this is the primary focus of this appeal.

15. The appellant refers to the case of People (DPP) v MJ [2024] 1 IR 523 and People (DPP) v FE [2021] IR 217.

16. It is submitted that if the traditional approach to sentencing had been followed in the instant case, the total sentence would likely have been one of 4 ½ years, almost half of the sentence imposed.

17. This approach was also applied in calculating the headline sentence, and the appellant submits that this illustrates the unfairness of “double counting”. The appellant contends that the proper approach would have been to determine a headline sentence of each cluster of offences, apply deductions for plea and mitigation, and then assess whether the total consecutive sentences were proportionate. The appellant notes that this last step was not taken by the sentencing judge, resulting in a higher sentence than appropriate in the circumstances. It is argued that the approach adopted by the judge involved imposing a modern day sentence by an unfair methodology, and accordingly, the sentence is unfair and unlawful.

18. Moreover, it is said that the two stage approach to sentencing ought to have been adopted and following the identification of a post mitigation sentence, the judge needed to consider whether the aggregate of the sentence imposed on a consecutive basis was proportionate. It is said that the final step did not occur, in other words, that the judge did not step back and consider the totality principle.

19. It is further submitted that a significant discount was warranted given the delay in bringing the case before the courts, and the appellant’s rehabilitation during that period. The appellant in particular refers to the psychologist’s view that the appellant was of a very low risk of sexual reoffending.

20. It is submitted that in the event that the court rejects the appellant’s argument regarding the improper use of consecutive sentences, the sentence nonetheless reflects an error in principle, as the court failed to adequately consider the factors in mitigation.

Submissions of the Respondent

21. The respondent submits that there was no error on the part of the sentencing judge in respect of the headline sentence imposedboth the headline sentence identified for each count, and the overall headline sentence identified of 11 years imprisonment. It is submitted that the headline sentence identified reflected the breach of trust of an older sibling to his younger siblings, and that the persistent and serious nature of the offending was adequately recognised by the judge as being at “the top end of seriousness”.

22. In respect of the appellant’s argument that there was an unfairness in the alleged “double counting” on the part of the sentencing judge, the respondent submits that the judge was entitled to impose consecutive sentences in respect of each complainant individually, and that while the offences formed part of a series of offences, each is a separate offence, and it is not a “one transaction” case. The respondent also submits that the appellant is incorrect in his description of the sentencing judge’s approach as “double counting”. Imposing consecutive sentences in respect of the final count for each victim was entirely appropriate in circumstances where if the judge had not done so, a sentence of

22 months would have been imposed in respect of each complainant despite the prolonged abuse and egregious breach of trust.

23. The respondent refers to the appellant’s reliance upon the decision in MJ in support of his arguments and submits that this decision in fact supports the proposition that it is not an error in principle to impose consecutive sentences if the sentencing judge determines that a concurrent sentence will not adequately reflect the seriousness of repeated offences against a single victim. This approach aligns with the sentencing judge’s reasoning in the instant case and accordingly, no error of law or principle arises.

24. The respondent rejects the appellant’s argument that the sentencing judge failed to consider totality or proportionality in imposing sentence and says that he explicitly addressed this issue:- “For the plea -- in relation to the mitigation, obviously, I have to be conscious of the mitigation which has been offered, and obviously, I also have to apply the principles of proportionality. I'm going to deduct from the overall sentence, a period of 18 months for the plea, which brings it down to nine and a half years, and I'm going to deduct a further one and a half years, to take into account all of the other matters advanced by way of mitigation, and to include his age, and the age of the offences. So, the sentence of imprisonment is ultimately, the global sentence, is one of eight years. And that's the sentence which I'm imposing.”

25. The respondent submits that mitigation was properly considered by the sentencing judge, resulting in an 18-month reduction for proportionality and a further 18 months for all other matters advanced by way of mitigation. The respondent stresses that the guilty plea was entered into “late” and thus could not receive the same discount as one which had been entered into prior to a jury being sworn.

26. It is noted that the appellant relies on the decision of JT and MJ in support of his arguments, however the respondent submits that such principles were adhered to in the present case. The respondent refers to the following passage in MJ at para 32 per O’Malley J. in this respect;- “A sentencing judge must, of course, sentence the accused person by reference to the law applicable to the time of the offence. However, it cannot be expected that the judge will put out of his or her mind everything now understood about sexual offending, or the way in which offences against children are now viewed by the law. In other words, a judge of the 2020s cannot be expected to approach a case as if he or she was a judge of the 1970s. However, the fundamental principles of sentencing must nonetheless be applied”.

Discussion

27. In essence, the primary argument advanced is that the judge erred in imposing sentences which were internally consecutive. Consecutive sentences may be imposed where concurrent sentences would not adequately reflect the gravity of the offending. However, the appellant contends that the approach adopted by the sentencing judge was firstly, an improper way of circumventing the limitations of the legislation where the maximum penalty on each count was that of 2 years imprisonment, and secondly, that it amounted to an unfairness in the circumstances, which resulted in a disproportionate sentence.

28. In short, it is argued that the judge did not recognise the limitations placed on him by statute, and found a way to make good that said deficit.

29. In reply, the Director says the sentence is proportionate and properly reflects the gravity of the offending, and that the judge properly assessed and applied the totality principle.

30. The appellant does not take issue with the headline sentence nominated and whilst he takes no issue with the reduction for mitigation per se, he nonetheless contends that the factors in mitigation feed into the unfairness issue.

31. Guilty pleas were entered to sample counts on the indictment, 5 counts in respect of each victim. A summary of the sexual misconduct is set out above. The impact on each victim is severe and long lasting.

The Imposition of Consecutive Sentences

32. A court is bound by the maximum sentence applicable at the time of the offending. However, it is not the position that a court must proceed to sentence an accused who committed offences some 50 years ago as if sentencing the individual at that point in time. Ref; MJ.

33. As O’Malley J. states in MJ with reference to People (DPP) v M [1994] 3 IR 306, the starting point is to consider the “nature of the crime”; that is the relevant aggravating and mitigating factors which lead to the nomination of the headline sentence. No issue here arises regarding the headline nominated, and it appears to this Court that it would be difficult to do so given, inter alia, the nature of the offending, the humiliation associated with the abuse, the physical pain suffered by certainly two of the victims, the severe impact on the victims, and the prolonged abuse stretching over 11 years.

34. A court then proceeds to discount for mitigation, taking account of an accused’s personal circumstances. Again, in the present case, no issue of substance is taken with the reduction for mitigation. The court allowed a reduction of 18 months for the plea of guilty, albeit one entered after a jury was impanelled, and a further 18 months for the balance of the mitigation.

35. A ground is put forward concerning the methodology used by the judge in imposing sentence that he did not consider the appropriate sentence in each case before considering the issue of consecutive sentencing. The approach of the judge in nominating a headline sentence and proceeding to consider the issue of consecutive sentences before applying mitigation is somewhat unorthodox. The optimum approach to sentencing is the well-known two stage process: identifying first the headline sentence and then applying mitigation which may result in a reduction from the notional sentence. However, in the present case, we do not find that the approach adopted leads in itself to an error in principle.

36. It is clear from the jurisprudence that whilst consecutive sentencing may be utilised sparingly, this does not mean that structuring a sentence in that way is rare or exceptional. Per MJ, it is certainly the position that in more recent times, consecutive sentences are considered appropriate when sentencing an accused for sexual misconduct concerning more than one victim, and may be utilised in order to properly reflect the gravity of sequential offending. See MJ at para 41:- “The court has a duty to impose a sentence that fairly reflects both the gravity of the defendant'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.”

37. The argument that the judge circumvented the parameters of the legislation by imposing a consecutive sentence for the final offence concerning each victim is not supported by the jurisprudence. The quotation above is instructive in this regard. The judge decided in his discretion to impose sentences on a consecutive basis vis-à-vis each victim and expressly stated:- “Looking at the offending in relation to each victim, I believe some consecutive element is, in relation to the offences perpetrated on each sibling, required to mark the serious and persistent nature of the offending in relation to each victim.”

38. This is, in our view, precisely what O’Malley J. speaks to in MJ. It was entirely within the sentencing court’s discretion to make the 5th count in the present case in the instance of each victim consecutive to the preceding count.

As observed in MJ at para 41:-

“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…”

39. It cannot be gainsaid but that the offending in the present case was serious. It continued for a prolonged period, there was an overlap in offending, there was an abuse of trust, and the impact of the offending on each of the three victims was significant.

40. We cannot agree with the appellant that in structuring the sentence as he did, the judge found a way to make good the deficit in the old law prescribing a maximum penalty of 2 years imprisonment. The imposition of consecutive sentences regarding each victim was within the margin of appreciation afforded to a sentencing judge to properly reflect the gravity of the offending, and we find no error in principle in him doing so.

Totality and Proportionality

41. It is argued that the judge erred in failing to have any, or any adequate, regard for the above principle, resulting in a sentence which, in the appellant’s circumstances, was disproportionate. The judge expressly reduced the global headline sentence by 18 months in light of the plea of guilty and a further 18 months for the balance of the mitigation. The appellant argues that the judge, in adopting the approach he did, failed to step back and consider whether the aggregate sentences, when imposed consecutively, were disproportionate.

42. There is no doubt that when imposing consecutive sentences, a court must take account of the overall sentence. This includes a consideration of an accused’s culpability and the prospect of rehabilitation. This assessment may in some, but not all cases necessitate a further reduction in order to ensure a proportionate sentence. The totality principle applies in order to ensure that the ultimate sentence imposed following the imposition of consecutive sentences is the appropriate sentence for the offending.

43. The argument premised on an unfairness which is advanced here that the ultimate sentence was disproportionate when one considers all the circumstances, including the passage of time, the appellant’s conduct in the interim, his young age at the time of offending, as well as the other mitigating factors.

44. It is clear that the judge approached his task with conspicuous care. Sentencing for historic offending is not an easy task. Sentencing for offences where the maximum penalty is radically different to the current penalty range for similar offending renders that task even more difficult. However, whilst it is apparent that the judge referred to proportionality and expressly reduced the sentence by 3 years to take account of all mitigationallowing an 18 month reduction for the pleas of guilty and a further 18 months for the balance of the mitigationit is unclear from the transcript whether the judge took account of the totality principle and examined the aggregate sentence in terms of proportionality.

45. The judge adopted the approach of identifying the notional headline sentence, imposing some sentences on a consecutive basis, and having arrived at the aggregate sentence, then proceeded to reduce for mitigation. It was not the optimum two stage approach followed by a consideration of imposing consecutive sentences and the totality principle. Whilst we do not find an error in the methodology in the present case, we find an error in principle in the overall sentence imposed where it is not apparent that the totality principle was applied.

46. Therefore, we will quash the sentence imposed and proceed to re-sentence the appellant.

Re-Sentence

47. We observe that it is not possible to identify the nature of the sexual misconduct on any particular count so as to tailor the appropriate sentence to each count, but undoubtedly the evidence denotes an overall pattern of offending which was of a serious order, ranging from that of inappropriate touching; to forced masturbation; to simulating sexual intercourse; to attempted penetration, with the consequentially very serious impact on the victims. The offending concerning each of the three victims was serious offending commencing when the appellant was 17 years old. A somewhat lesser headline sentence is appropriate in our view for the earlier offences in time and a greater headline sentence for the offences later in time, both from the perspective of the appellant’s older years and the incremental abuse of two further victims. In addition, there was an overlap in time of the abuse of two siblings which aggravates the offending. Consequently, we propose to differentiate in the headline sentences to properly reflect the incremental gravity of offending. This may result in a somewhat convoluted exercise, but we consider it appropriate in the circumstances.

48. The counts on the indictment commence with the first victim in time, it then moves to the third victim in time, and the final sequence of counts concerns the second victim in time.

49. Counts 1, 5, 9, 13 and 16 concern the first victim. At the time of the offending, she was aged between 14 and 18 years, and the appellant was aged between 17 and 21 years. The offending was serious and was, in our view, serious from the commencement. We do not rehearse the aggravating factors. They are readily apparent. We nominate a headline sentence of 18 months on counts 1, 5 and 9, which we reduce to 14 months to take account of mitigation. On counts 13 and 16, we nominate a headline sentence of 20 months. We will reduce that to 17 months.

50. Counts 19-33 concern the third victim in time. She was a young child aged between 9 and 14 years and the appellant was aged between 23 and 28 years. At this stage, the appellant had already abused his other sister, and was simultaneously abusing his brother. On each count to which he pleaded guilty to offences concerning this victim, we nominate a headline sentence of 22 months reduced to 18 months.

51. The counts concerning the second victim in time are those of counts 38-50. The child was aged between 11 and 14 years old. The offending was again of a serious order and the appellant humiliated his victim by urinating upon him. He was at this time abusing his younger sister and had already abused the first victim. He was aged between 23 and 26 years. We nominate a headline sentence of 19 months on count 38, which we reduce to 15 months. We nominate a headline sentence of 20 months on counts 41, 44, 47 and 50. We reduce the sentence on counts 41, 44 and 47 to 16 months, and we reduce the sentence on count 50 to 17 months.

52. We have taken account of the appellant’s age at the time of the offending, his age now, his conduct in the intervening time period of some 50 years, the late plea of guilty, the absence of previous convictions and the balance of the mitigating factors.

53. We consider it appropriate to impose the sentence consecutively regarding each victim, as did the sentencing judge, in order to properly reflect the gravity of the offending in respect of each victim. The duration and frequency of the sequential offending must be marked.

54. We make count 16 consecutive to count 9, which leads to an indicative sentence of 31 months. We make count 33 consecutive to count 19, leading to an indicative sentence of 36 months, and count 50 consecutive to count 38, leading to an indicative sentence of 32 months. Each block of counts concerning each victim is consecutive to the other in the same manner as imposed by the sentencing judge. The aggregate sentence now being 8 years and 3 months.

55. We now look at the issue of totality and to ensure proportionality, we reduce the sentence on count 9 to 10 months, and count 16 to 14 months, resulting in a sentence of 24 months.

56. On count 19, we reduce that to 13 months, and on count 33, we reduce that to 15 months, leading to a sentence of 28 months.

57. On count 38, we reduce that to 12 months, and on count 50, we reduce that to 14 months, giving a sentence of 26 months.

58. As we have said, each block of counts is sequentially consecutive, and so the aggregate sentence is 6 ½ years imprisonment.