Circuit Court imposes consecutive 17-month sentences for 10 indecent assault counts totaling 14 years and 2 months.

An Chuirt Chuarda

The Circuit Court

[2016] IECC 2 Bill No. WDDP0027/2015

South Eastern Circuit County of Waterford BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

V

BILL KENNEALLY

SENTENCING REMARKS delivered on the 19th. day of February 2016 by His Honour Judge O’Kelly.

Bill Kenneally has pleaded guilty to 10 counts of indecent assault, as a representative sample of 74 counts on the indictment.

1. Count 1: 1 Nov 84 – 7 Nov 84 Jason Clancy

2. Count 23: 31 Oct 84 – 30 Nov 84 Conor O’ Hara

3. Count 38: 1 Jan 85 – 31 Dec 85 Colin Power

4. Count 39: 1 Jan 86 - 31 Dec 87 G. M.

5. Count 47 1 Jan 86 – 31 Dec 86 P. W.

6. Count 52 1 Jan 87 – 31 Dec 87 J. W.

7. Count 55 21 July 86 – 31 Dec 86 B. M.

8. Count 61 1 Aug 86 – 31 Aug 86 G. P.

9. Count 64 1 Aug 87 – 31 Aug 87 K. K.

10. Count 65 1 Jan 84 – 31 Dec 86 Bernard O’ Brien

The offences occurred over a 4-year period from the 1st Jan 1984 to 31st Dec 1987 involving 10 young boys, the youngest being 13 and the oldest 16, at the time of the relevant offences Background The defendant, Mr Kenneally, who is now 65 years of age, lived with his parents at the family home in Waterford. The parents were by all accounts hard working and respectable people who had no knowledge of the offending that was taking place under their roof.

At the time, in the mid 80s, B.K., worked as an accountant in Waterford city (an employment he is still engaged in). He came from a relatively privileged background, he was working, and he was single and living at home. He had plenty of readily available money to pursue his appetite of sexual gratification with young teenage boys.

The boys ranged in age from 13 to ? Years and many of the offences occurred in his home while B.K.

parents were away from the house or in his motor car, or in various forests and woodlands around Waterford.

While the last of the offences was in Dec 1987, the first complaint to An Garda Siochana which led to these prosecutions was made in 2012. That being said, it appears the Gardai became aware of an informal complaint at least as long ago as 1987, and I will refer to this aspect of the matter later. The details of the offences are broadly similar, involving the systematic abuse of young teenage boys over a regular period varying from months to years, during the mid 1980s. The defendant was at the time approximately 20 years older than his victims.

His modus operandi was to involve himself in sporting clubs, basketball, tennis and soccer. In the guise of being a coach and mentor, he gained the trust of impressionable young teenagers, then groomed them for the sexual exploitations that he repeatedly subjected them to for months and years on end. He had money, at a time when many were struggling, to indulge his appetites. He spent the money not only on motor cars with which to impress these young teenagers, but also on copious quantities of alcohol, which he freely dispersed from the boot of his car, so as to disarm his victims through intoxication and finally to making payments to the boys, initially appearing to them as gifts, but in fact putting them into debts owing to him and which had to be worked off in the form of a strictly enforced tariff system, of specified acts of sexual exploitation.

In each case the abuse followed a similar pattern from initial grooming, with alcohol and pornographic videos, to car journeys to various sporting events and to towns within a driving radius of Waterford, to buy fast food, but always coming at a price of sexual abuse beginning with the removal of clothes, fondling of the genitals and quickly escalating to masturbation and oral sex. One of the features that emerges in many cases of predatory paedophiles is the consistent pattern that emerges from the accounts given by each of the victims, this is particularly so in this case.

Because the abuse experience has been so similar for each of the boys, I do not propose to itemise in each case the individual horrors experienced by each and every one of you the victims. They are far too numerous and I do not wish to add unnecessarily to your respective embarrassment, as I highlight some of the common features, I will refer to specific aspects of the abuse when I identify aggravating features of Mr Kinneally offending. Each victim who has been able to prepare a Victim Impact Statement has suffered devastating psychological consequences and have been enduring the negative effects of same ever since.

The 6 victim impact statements make harrowing reading, and I assure each victim that I have re-read each one, noting exactly what each of you have had the courage to write concerning the abuse you were powerless to prevent. There are a number of experiences which are common to the victims who have made victim impact statements;

1. The abuse has had a profound and long-lasting impact on all of you.

2. Some of you have suffered and some continue to suffer from alcohol dependency and other addictions.

3. Many of you have disclosed depression and one has contemplated suicide.

4. Family life and relationships have suffered.

5. Education and consequently advancement in life has been hampered, I note one boy was abused in the morning before his Inter Cert English exam.

6. All of you have been made to suffer from feelings of fear, shame and guilt, emotions that none of you should have to endure.

7. You have all been robbed of the innocence of a carefree adolescence and for no other reason than to satisfy a paedophile predator’s addiction.

This has understandably left some of you feeling angry. Jason Clancy writes “I do not wish to hear an apology from you today or any day as I have met you many times on the streets of Waterford over the years and you just walked on by, never acknowledging my presence.

So today, Mr Kinneally, any apology from you is merely self-serving and an act of self-preservation”.

Bernard O’Brien writes “He has no remorse, the punishment should be a lifetime removed from society in a prison where the keys are thrown away, never to be found again”.

I have tried to understand how your lives have been blighted by this man and you have spent 30 years trying to find peace and closure, shutting out as best you could the painful memories, at times only to have them all come flooding back and open the wounds once more.”

I understand the bitterness and hurt but the law does not allow me to sentence any offender on that criterion alone.

There are very strict sentencing guidelines laid down, which prevent a judge from putting someone in prison, where the keys are thrown away never to be found again.

No matter what society demands, I am constrained by the sentencing range applicable to any particular offence and certain over-riding principles of sentencing, which obviously include punishment and deterrence, but also consideration of the personal circumstances of a particular offender and matters of integration and rehabilitation.

The law requires that the sentence to be applied be within the range which applied at the time the offence occurred, not that which applies at the time of trial or sentencing.

For offences of indecent assault on a male prior to 1991, I am told the maximum sentence is 2 years imprisonment. Since that time the renamed version of the offence, namely sexual assault carries a maximum sentence of 14 years imprisonment, where the victim was less than 17 years, at the time of the offence.

This maximum 14 year sentence reflects contemporary society’s repugnance of such offending.

I am however bound by the 2 year maximum as determined in the J.M. case of 2015 even though that 2 year maximum has come about, in the words of Mr Justice Ryan, president of the Court of Appeal “in somewhat anomalous circumstances (as) a wholly unintended and unexpected result.”

In deterring an appropriate sentence, I must look at Mr Kinneally’s culpability at the time of offending, but also his personal circumstances as they now are.

Aggravation In assessing Mr Kennelly’s culpability, I have considered a number of factors which have aggravated this;

1. The intensity of the abuse. The nature of the offending conduct and the degree of suffering inflicted on each of the victims as outlined by Det Garda Neary, and the victim impact statements. All involved masturbation and in some cases oral sex, on the scale of gravity this is at the upper end for indecent assault.

2. The predatory conduct leading up to the abuse, by this I mean the exploitative grooming which was a strategy Mr Kenneally designed to leave the victims feeling powerless and degraded. Exploitative Grooming: Mr Kenneally clearly gained the trust of the boys present at Sunday morning soccer, or as a coach to a basketball team, or at a tennis club.

He provided take-away food, then seen as a treat, alcoholic drinks and money. He took the boys for trips in his motor car. This was all manipulative grooming for the abuse that was to follow.

3. Many of the victims have referred to photographs of themselves being taken while they were naked. Jason Clancy wrote in his victim impact statement; “When the sexual abuse was finished he squeezed my testicles to make me smile and photographed me with his Polaroid camera which printed the photograph instantly. I remember how he waved the photo in my face telling me if I told anyone he had the pictures to show I enjoyed it. He repeatedly told me throughout any years of abuse that he was part of the Kinneally political family and I would never be believed.” The use of a Polaroid camera is significant, it provided an immediate image, which could be shown to the victim, and yet did not risk detection by a third party film processor. These photographs instilled a fear of exposure and appear not to have been taken for later gratification, but as some form of insurance against disclosure, and remained in the boys’ minds as a constant threat.

4. The persistence of the abuse: Repeated and frequent abuse of the victims over many years, the longer the abuse lasted the greater the likelihood of the boy’s adolescence being destroyed. Mr Kennelly’s offending sheds a very negative light on his character, highlighting the complete lack of a moral compass.

5. The number of victims involved is an aggravating factor, I am only dealing with 10 persons, even if by his own admissions to the Gardai in December 2012, the number may be double that. The persistent, systematic and serious abuse of 10 victims ranks at the top of the scale of gravity. I am concerned only with the 10 victims before the court, and this sentencing is determined by the offending against those 10 individuals and none other.

6. Group Participation: The involvement by Mr Kenneally of other boys, already subject to his manipulation and fear, in so many of the initial cases of abuse of a new boy is an aggravating factor. He used their presence to normalise what the new boy was being subjected to. By their presence, it was causing a distorted perception and confusion as to what was normal or appropriate behaviour for a young teenager could only have wanted to be part of the social group and conform to what he might perceive mistakenly to be the norm.

7. Paraphernalia of restraints: Mr Kenneally used handcuffs, duct tape, orange twine and some contraption which he had adapted or designed to facilitate the removal of the boys’ clothes.

A number of the victims describe the use of this mechanism which appears to have been in use in Mr Kenneally’s house. There was also regular use of handcuffs and an orange twine to restrain the boys, handcuffing some by their wrists to his bedhead and securing their feet with the orange twine to the bed end, leaving the boys naked and spread eagled on the bed.

Some of the victims were tied and handcuffed to trees and left for some time in forests at night-time.

Mr Connelly in his submission has indicated that there was no violence used, Mr Kenneally has not been charged with aggrevated sexual assault, but what some of the victims disclose is certainly violence in the context of a charge of indecent assault.

Bernard O’Brien has written, “I was just a kid, a child. I was completely under Kenneallys control, when the bouts of abuse would happen it would be brushed off as i was over reacting and we are all friends. I was scared of him as he lashed out at us a couple of times” I am treating the use of these items including the contraption, whatever it was, but the use of which enabled Mr Kenneally to guarantee to Conor O’Hara, that he would not have to ask him to pull down his pants, as an aggravating factor.

8. The use of alcohol is also an aggravating feature of each of the offences. I have previously referred to the supply of alcohol being used as part of the grooming technique, but it was also used separately and regularly once the victims had been groomed, to facilitate the commission of the offences. The boys were plied with drink to disinhibit them from objecting to the abuse that they were coerced to participate in. It is noteworthy that several of the victims pointed out that Mr Kenneally never drank himself.

9. The payment of money: This appears to have been dispensed in significant amounts in various sums ranging from £7 to £67 and varying amounts in between which appear to have ended with a 7, be it 17, 27 or so on. That was substantial money for a teenage boy in the 1980s. This is both bribery and abuse of a dominant position, putting the boys into a debtor situation from which they could only extract themselves by participating in the abuse. The sentencing options for each count of indecent assault range from a wholly non-custodial sentence up to the maximum term of imprisonment allowed by law 2 years.

That this is 7 times less than the maximum sentence of 14 years imprisonment for similar offences committed since 1991 is irrelevant. In all of the circumstances that I have outlined I am of the view that these are offences which fall within the upper range of gravity for indecent assault. In the unusual and perhaps artificial circumstances of how the maximum sentence came to be restricted to 2 years imprisonment and in view of the aggravating factors involved I believe that the maximum sentence of 2 years imprisonment is warranted on each count as the appropriate and proportionate pre mitigation starting point.

In this regard I have carefully studied the judgement of The Court of Appeal in J.M., where the accused, a man in his early 40s, the manager of an underage hurling team abused 2 boys in the early 1980s, in circumstances which had many similarities to the present cases, and received the maximum sentence of 2 years imprisonment. Mitigation I now turn to the mitigating factors in this case. Guilty Plea A guilty plea to any offence is a significant mitigating factor. In cases involving sexual or indecent offences a guilty plea is particularly worthy of a substantial discount, because it saves the complainants from the trauma of having to give evidence and the inevitable ordeal of being subjected to cross examination on matters that have caused worry and anguish to the complainant.

For each of the ten men this is significant as I have no doubt, that if they were forced to relive the ordeal and be subject to the full scrutiny of a criminal trial, the injurious effect of Mr. Kenneally’s offending would have been further exacerbated. The plea has also saved the State the time, cost and resources that jury trials would have entailed, Mr. Counihan S.C. suggested up to 3 trials. The guilty plea is a significant factor particularly as criminal trials are a risky business with always the risk of a case going off the rails. Mr Kinneally had indicated at an early stage that he would plead guilty and then he did so when arraigned on the 1st Dec last.

Mr Kinneally is entitled to substantial credit for his guilty plea and for not seeking to hide behind any legal process that might have been available to him. It was an unqualified plea. Mr Kinneally has been publicly shamed and is socially isolated and will be shunned by the local community. This loss of reputation and standing is something I am having regard to. I have been told that Mr Kinneally has a facial tic, has high blood pressure and is currently on anti-depressant medication. I have not heard or been shown any medical evidence on these assertions so cannot access the seriousness or otherwise of the conditions.

Certainly they do not seem to be debilitating to the extent that Mr Kenneally has had to give up work despite being in retirement. Personal Circumstances Bill Kinneally is a 65 years old single man working as an accountant. He recently sold his residence although no reason was given as to why he did so. His residence at the time of his arrest in 2012 was his parent’s home, where much of the abuse took place. Previous Good Record Mr Kenneally has no convictions prior to the current ones for which he is now being sentenced. He has not come under adverse Garda notice since his arrest in 2012 and indeed it would appear not since he had an informal interview in 1987 with Senior Gardai concerning an allegation made at that time by the W. family They did not wish to make a formal complaint and in these circumstances, the Gardai could not prosecute, but did at least obtain 1) a commitment that Mr Kenneally would not hence forth be involved with children and 2) that he would attend counselling.

It appears that Mr Kenneally complied with both requirements and did give up basketball coaching, and avoided the soccer and tennis clubs. He also attended a Dr. Kelleher, Consultant Psychiatrist, who is unfortunately now deceased, but a Garda note from that time, confirms this. His willingness in 1987 to make admissions and Mr Kenneally’s adherence to his commitments for the past 29 years demonstrates an acknowledgement of wrong doing and genuine remorse is also a significant mitigating factor. Apology An apology written by Mr Kenneally was read out on his behalf by Mr Counihan S.C..

In it he acknowledged the hurt that he has caused to his victims and expresses deep regret for his actions. I am aware that each of his victims who were present in court, did not wish to hear that apology and, as they were perfectly entitled to do, walked out of the courtroom en masse so as to avoid hearing it. That is their entitlement, and they may believe the apology is worthless coming as it does 3 decades too late for them, a whole generation late. However not all the victims were in court yesterday and an apology, being a very public acceptance of responsibility and of wrongdoing, may have some psychological or therapeutic benefit for those victims who were not present, and as such is another factor deserving mitigation.

I do not criticize their attitude as they may consider that in what has been described by Mr Counihan as the “circumstance of the 1987 admissions and the obtaining of professional psychiatric help” at that time of such rehabilitation did not include apologies. Complainant Delay It has been urged on me that Mr Kenneally has lived with a spectre of a black cloud hanging over his head in the almost 30 years since he made admissions to the Gardai in 1987. I have been referred to the cautioned interview which took place on the 13th Dec 2012, when the Gardai arrived to search his house.

His immediate response was; “I presume this is historical, 20-25 years ago?” and when he was asked what he was referring to he replied “25 years ago .... alleged molestation. I admitted a few things to the guards. Things were looked on differently then. I undertook not to be involved with children and go for counselling”. Asked if there were other children, he replied, “There are a few yeah” and asked how many, he replied “About 20”. This immediate recall and admission are compatible with the suggestion that Mr Kenneally was living in a certain jeopardy that his day of reckoning would come eventually.

The interview has significance for another reason, Mr Kenneally was asked did he ever photograph the children naked and when he replied that he had done so he was asked where were the photographs, he replied that he had burned them, 25 years ago. Those photographs were a constant threat to the boys, who lived in fear that they would be disclosed to shame and humiliate them, and for that 25 years those victims, were unaware that what they feared so much had apparently been destroyed. Mr Kenneally did nothing, for example, returning the photographs to the boys to bring closure to those victims during those 25 years.

At the end of the interview Mr Kenneally was asked again how many children in total were involved, he stated; “I’d put an estimate of 20 in total” and asked if he wanted to name any of them he replied “for their sake I don’t really” His admissions in 2012 only confirmed the identity of 2 of the 10 victims in the book of evidence. I again emphasise I am only dealing with the 10 victims in the indictment and am not in any way influenced by Mr Kenneally’s estimate of how many boys were actually involved. To that extent his co-operation with Gardai was limited but nevertheless for that i am giving him some credit.

I have heard the evidence of Mr Nicholas Bankes, a Director of A.C.T. Psychological services and a Doctor of Psychotherapy. He is a specialist in treating sex offenders. I have also considered his report, which was tendered to the court. Dr Banks has had 100 weekly sessions with Mr Kinneally over a 2-year period from April 2013. He explored the deeper unconscious antecedents to the sexual offending, during which it emerged that Mr Kenneally had a very low self-esteem which had persisted into his adulthood. He was always very shy because he felt inadequate and awkward in the company of girls, he turned to boys of a similar age to himself or one or two years younger with whom he felt confident enough to engage in genital fondling.

This behaviour then became entrenched and as Mr Kenneally grew up, the sexual behaviour continued but the age of the boys whom he sexually abused remained the same i.e. 13-15 years. Dr Bankes stated that Mr Kenneally developed a range of distorted cognitions which he used to justify the continuance of his behaviour. Dr. Bankes found Mr Kinneally to engage with the therapy in an open and honest way, and that he has achieved insight into the harm which he caused and is very remorseful and shamed by his activities. Dr Bankes confirmed that he, Mr Kenneally, has overcome his fantasies and desires about boys and on a recent assessment of risk found him to be at a very low risk of reoffending.

There is no doubt that this has been a remarkable rehabilitation and another significant factor deserving mitigation. I have had due regard to all these matters in mitigation and to take account of the pleas of guilty and further with a view to acknowledging the progress that he has made towards rehabilitation. I am giving an allowance of 7 months off each two-year sentence to leave a net sentence of 17 months on each count. The next question to be determined is whether these 10 sentences of 17 months each should run concurrently or consecutively to each other.

The offences were perpetrated on young innocent victims over a protracted period in each case. They involved breach of trust by Mr Kenneally and abuse of his position as an adult with access to the boys and in authority as a training coach. The evidence that some of the victims gave to the court described the severe and lasting impact that the abuse has had on them throughout their lives. The pattern of grooming and repetition of the abuse over many years, the calculated exploitation and the fear generated, the use of restraining devices and techniques and the blackmailing effect of the Polaroid camera are all relevant factors.

I accept as a matter of law that consecutive sentencing should be sparingly used. In coming to a

decision on this point I am also regarding the mitigating features of the cases, notably the fact that Mr Kenneally pleaded guilty and spared the victims the anxiety, embarrassment and ordeal that they would have had to endure in a contested trial, together with the other factors which i have previously outlined.

Mr Counihan urges that as there is considerable overlap in the abuse of the 10 victims, I should look at the issue in a collective context. He states that nothing about this case suggests any major element of consecutive sentencing is warranted including his otherwise conviction free history and his proven rehabilitation. I have also had regard to the fact that each of the victims of Mr Kinneally is unique, each has to overcome his own demons to summon up the courage to make a complaint and put himself forward to give evidence should the need have arisen. Each of these 10 brave men deserves to see that their suffering at the hands of Mr Kinneally is now being recognised by the court. I do not want any of these 10 victims to leave this courthouse feeling that they have not been heard, or that their experiences are being ignored or devalued. This is a case, involving as it does very serious exploitation and sexual misconduct with numerous young teenage boys over an extended period of time, where it would be appropriate to impose consecutive sentences. To do otherwise would be to end up with an unduly lenient sentence, entirely disproportionate to the gravity of the offending and Mr Kinneally’s moral culpability over a number of years. I have considered the D.P.P. V Mc Cabe: in that case the defendant, a religious brother, working in a school, pleaded guilty to indecent assault of 3 young teenage boys when they were pupils in a school for the deaf, was given an effective sentence of 9 years imprisonment. In all of the circumstances, I am making

10 individual sentences of 17 months each, consecutive to each other, which will give a cumulative sentence of 170 months or 14 years and 2 months. I am not suspending the operation of any portion of this sentence, because I am urged by Mr Counihan to accept that he has been rehabilitated for almost 30 years and that he has remained free of his addiction since that time. Therefore, it does not seem necessary after that length of time to incentivise further rehabilitation. I have given due credit for the considerable rehabilitation that has occurred in the reduction from the headline sentence as part of the mitigating factors that I have outlined. 14 years and 2 months imprisonment is an appropriate and proportional sentence which in the particular circumstances of this case does not offend against the totality principle. I direct that Mr Kenneally be subject to the notification requirements of being placed on the Sex Offenders Register pursuant to part 2 of the 2001 Sex Offenders Act for indefinite duration or as it is colloquially described for life.

Eugene O’Kelly