Court of Appeal dismisses appeal against five-year suspended sentence for multiple sexual assaults on sister. Appeal fails due to no error of principle.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

Record No: CCA 230/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Damien Kiely

Appellant

Judgment of the Court (ex tempore) delivered on the 13th day of December 2016, by Mr. Justice Edwards

Introduction

1. This judgment is concerned with an appeal by the appellant against the severity of a sentence of five years imprisonment, the last

year of which was suspended, imposed on the appellant following his conviction by a jury on the 24th of July 2014 of twenty three

counts of sexual assault.

The circumstances of the case

2. The injured party was the appellant’s younger sister. She was four years and some months younger than him. The abuse began

when the injured party was aged ten and continued up until she was sixteen. The appellant was therefore aged fourteen when he

began sexually assaulting his sister and continued doing so on a regular basis until he was aged twenty.

3. The nature of the assaults were that they sometimes involved the appellant requiring the injured party to undress in a bedroom of

the family home, following which he would touch her inappropriately and on occasions digitally penetrate her. On other occasions the

appellant would visit the injured party in her own bedroom after she had gone to bed and reach in under the bedclothes and beneath

her pyjamas and feel her vagina and rub her chest. On yet other occasions he would chase and catch his sister, get her down on the

ground, engage in kissing her, giving her love bites and putting his hand inside her underwear and digitally penetrating her.

The impact on the victim.

4. In a powerful and moving victim impact statement the injured party described to the sentencing court the effect the appellant’s

assaults had had on her. She stated (inter alia) that while growing up and trying to make sense of what was happening she lost track

and sense of how real life was supposed to be like. Amongst other things her confidence and self assurance was damaged. She felt

ugly outside and inside. She had had no sex education, and when she made her disclosures she did not receive the support from her

parents and other family members to which she was entitled.

5. The injured party described how she washes her body twice a day because she never feels clean since the assaults. She feels like

she smells. She washes her hair every day also because she feels it smells. She wears make up to look more feminine as she thinks

she looks like her brother without it. She wears her hair down as it hides her face. Any time she went to my mother about her

brother’s abuse she felt she was pushed back. She had tried to stand up for herself but her mother would make her feel like she

wasn't strong enough to do it. It made her feel that her brother thought he had the better of her. Her brother denies abusing her,

leading her to believe that he still thinks he did nothing wrong. This sickens her as he did apologise to her and now he denies this. He

watched as she had had to relive everything in court. She has nightmares and flashbacks since the Court case.

6. As a teenager the injured party felt very isolated. She felt different from everybody else, especially since changing schools. She

lacked confidence in herself and had very little social skills. She did not know how to make new friends. Her schoolwork suffered. She

found it hard to concentrate in class as she was constantly thinking about her life outside of school and what her brother was doing

to her. She completed her junior cert but did the lower levels in every subject. She did not do well in her leaving cert. She passed it

but barely.

7. The injured party stated that she is in a relationship for the last 12 years but many times after intimacy or sexual contact she gets

a sick feeling in her stomach. It is the same feeling she had when her brother was abusing her. She feels guilty when this happens

because her partner is a good man and she loves him very much and this is not his fault. She also had this feeling for the last six

months over both of her pregnancies. She states she now has two wonderful boys and since then has learned a lot about life.

However she still needs to deal with her mental issues. She plans to attending counselling sessions. She wants to finally close this

chapter of her life and move on.

The appellant’s personal circumstances.

8. The appellant was born on the 6th of January 1977. He has no previous convictions save for minor road traffic matters. He had

literacy and numeracy issues at school and was described by his counsel at the sentencing hearing as having special needs. He left

school at the relatively young age of sixteen without any educational achievements. However, he succeeded in gaining employment

almost immediately, initially with his father, and then with a car valeting business. He was in continuous employment up until the time

of going into custody in connection with this matter.

9. The appellant initially faced trial upon a 42 count indictment. He contested his trial. He was convicted of the 23 counts in respect

of which he was sentenced but was acquitted of the others. At his sentencing hearing the appellant expressed his remorse for what

he had done and a letter of apology to his sister was read out. However, subsequent to being sentenced he sought to file a Notice of

Appeal against both his conviction and the severity of his sentence. Ultimately, however, he proceeded only with his appeal against

the severity of his sentence.

The sentencing judge’s remarks

10. In sentencing the appellant the sentencing judge made the following remarks:

“The most fruitful source of mitigation is an early plea of guilty coupled with genuine remorse. That is not available to

this accused, who contested his guilt before a jury in Cork. He is not being penalised for doing so but, as I say, has

forfeited the most fruitful source of mercy and mitigation. The distressing facts of this case are fully recorded on the

transcript and do not require to be rehearsed by me here. I am required by law to: One, identify the range of penalty

available; two, place the case having regard to all its circumstances at its appropriate place on that scale; and three,

identify such factors as may be found in favour of the accused and on the basis of those discount from the figure

arrived at in phase two above.

The range of penalty available is from suspended sentence to five years imprisonment. This is the maximum sentence

available on the basis of the law as it stood at the time. While there are a great multiplicity of counts involved, the

former Court of Criminal Appeal leaned against consecutive sentences in these circumstances. I take account of the

following: One, the grave nature of the offences involved; two, the breach of trust involved; three, the effect on the

victim as disclosed by the victim impact evidence; four, the multiplicity of offences involved; and five, the age of the

victim. I assess the case as meriting a sentence of five years imprisonment and impose that term on each count to

date from the 21st of July 2014 and to run concurrently.

In favour of the accused I take account of: One, his lack of previous convictions; two, his good employment history and

prospects of reemployment upon release; three, his youth at the time of the commencement of his offending. To take

account of these matters I will suspend the final year of his sentence on his entering into a bond self in the sum of

€1,000 to keep away from his victim in perpetuity save with her consent, the bond to be entered into before the prison

governor.”

The Grounds of Appeal

11. The grounds of appeal as pleaded are simply to the effect that the sentence was disproportionate and excessive and too severe

in all the circumstances of the case. However, in submissions counsel for the appellant elaborated on this and contended, firstly, that

the headline sentence of five years imprisonment determined upon by the sentencing judge was too high having regard in particular to

the fact that the majority of the offending was committed while the appellant was himself a minor.

12. In addition it is complained that the sentencing judge failed to take adequate account of mitigating circumstances, particularly

the fact that had no previous convictions and has not been in trouble since his offending conduct ceased when he was aged twenty.

He was thirty seven years old at the date of his sentencing. In addition he had an unbroken history of employment from age sixteen

onwards. He was also remorseful.

13. In support of the argument based on insufficient mitigation, the Court was referred to The People (Director of Public Prosecutions)

v J. (T.) (unreported, Court of Criminal Appeal, 6th of November 1996) where Keane J stated:

“The lapse of time may be relevant in the first place between of the conduct of the accused in the interval. In a case

where the trial occurs, as it normally should, within a relatively short period from the commission of the offence, the

conduct of the accused will probably be of little assistance to the court of trial (and none where he is in custody) in

determining of what extent he is likely to re-offend. Similarly the time involved, even where he is at liberty, will be

insufficient to lead to a conclusion as to whether one major objective of any humane penal system, the rehabilitation of

the accused, has already been achieved. That is in contrast to a case such as the present. Here the offending conduct

came to an end, according to both the Complainant and the Applicant, at least 10 years ago. He has not offended in

that or any other respect since then, is married with a family and was in steady employment. All the evidence points to

these having been incidents in his past which he bitterly regrets and which have never been repeated.”

The D.P.P.’s Response

14. Counsel for the respondent submitted in response that in so far as reliance was being placed on remorse the procedural history of

the proceedings tended to suggest that the appellant’s apology and indications of remorse were not sincere.

15. It was submitted that the sentencing judge’s sentence was appropriately structured and was proportionate and appropriate in the

circumstances of the case.

Analysis and Decision.

16. There can be little doubt but that the sentence imposed by the sentencing judge was a severe one. However, this Court is not

entitled to interfere merely because a sentence was severe if it was within the range of the sentencing judge’s legitimate margin of

discretion. To succeed, the appellant would have to go further and demonstrate the existence of a clear error of principle on the part

of the sentencing judge. Any sentence that was outside of the trial judge’s margin of discretion would per se represent an error of

principle.

17. It is clear that the sentencing judge approached the sentencing process in the correct way. He had regard in the first instance to

the range of available penalties, which ranged from non-custodial options up to five years imprisonment. He then sought to assess the

seriousness of the offending conduct and to place the case in its appropriate position on the scale that he had identified. Seriousness

is identified with reference to culpability and harm done. Measured by that yardstick the offences committed were indeed serious.

Moreover there were a great many of them, ranging over a six year time span. The sentencing judge properly gave consideration as

to whether in those circumstances some degree of consecutive sentencing might have been appropriate, but ultimately decided

against it and determined instead on the selection of five years imprisonment, which was the maximum available, as a headline

sentence to be applied in each case and on the basis that all sentences would be made concurrent. We do not consider that there

was any error of principle in any of that.

18. With respect to the specific complaint that the headline sentence was too high because the majority of the offences were

committed when the appellant was himself a minor, we reject that. The offending began at age fourteen and straddled his majority

continuing until he was aged twenty. There was no evidence, eg, from a psychologist, to suggest that by reason of immaturity, or

any other of his personal circumstances, the appellant would not have fully appreciated the inappropriateness of what he was doing

or the harm that he was doing. We find no error of principle on the assessment of seriousness side of the sentencing equation.

19. Moving to the mitigation side of the process, counsel for the respondent relies on the sentencing judge’s comment that the most

fruitful source of mitigation is an early plea of guilty coupled with genuine remorse, as being justified. In this case there had been no

plea, and the appellant’s remorse was questionable. It was true that the appellant was also entitled to have his previous good

character taken into account, as well as his strong work record and relative youth. However the trial judge did expressly take these

into account in suspending the final year of the sentence. As counsel for the respondent points out that represented an effective

discount of 20% for mitigation. We are satisfied that this was an appropriate allowance for the available mitigation and that there was

no error of principle on the mitigation side of the equation either.

20. In all the circumstances of the case we would dismiss the appeal.