The Supreme Court ruled that indecent assaults on a male committed between 1981 and 1990 could carry a maximum sentence of 10 years’ imprisonment, matching the statutory maximum then available for equivalent assaults on a female.
The appeal concerned James Maher, who pleaded guilty in 2012 to five counts of indecent assault against one boy during 1984 and 14 counts against another boy between 1982 and 1984. The Circuit Court imposed two years’ imprisonment on all counts, to run concurrently, after the prosecution had advised that the maximum was two years per count.
The Director of Public Prosecutions sought a review under section 2 of the Criminal Justice Act 1993, arguing that the sentences were unduly lenient. In 2015, the Court of Appeal held that the two-year maximum had been applied correctly but found the overall sentence unduly lenient. It added one year consecutive to the concurrent terms, bringing the total to three years. Maher had already served the original sentence and later served the additional year.
The DPP appealed to the Supreme Court on the legal maximum and on whether the three-year sentence remained unduly lenient. The Court considered the effect of an earlier High Court ruling, S(M) v Ireland & Ors (No. 2), which had held that constitutional equality limited sentences for indecent assault on a male to the maximum available for the equivalent offence against a female at the time.
The Supreme Court held that this limit changed when legislation raised the maximum for indecent assault on a female to 10 years in 1981. It reversed the Court of Appeal’s ruling that the maximum remained two years for the offences at issue. The judgment addressed the legal ceiling; it did not impose a new sentence.
On the DPP’s separate challenge to the three-year term, the Court declined to decide whether it was unduly lenient. It said neither the sentencing court nor the Court of Appeal had assessed the case on the basis that the legal maximum was 10 years, and it would not be useful to set a sentence itself given the unusual procedural history. The Court dismissed that part of the appeal without endorsing or criticising the sentence imposed by the Court of Appeal.