The Court of Appeal has dismissed Thomas McKenna’s appeal against the severity of a two-year prison sentence for sexual assault, finding no error of principle in the Circuit Court’s approach to sentencing or its decision not to suspend any part of the term.
The appeal concerned a sentence imposed at the Circuit Court in Mayo on 12 October 2018. The Court of Appeal judgment was delivered by Ms Justice Baker on 29 April 2019. The court said the question was whether the two-year sentence was wrong in principle; it did not conduct a full sentence appeal.
The court said the offence followed a charity event on 25 July 2015 at a hotel apartment complex in Castlebar. McKenna and the injured party were among a group staying there. After the injured party went to bed, her husband found McKenna in bed with her, with his trousers and underpants pulled down and his penis visible. The injured party’s trial evidence was that she had been asleep and was woken by McKenna.
The trial began on 6 February 2018. After the injured party had given evidence, McKenna asked to be re-arraigned and entered a guilty plea on 13 February, when the trial process had almost completed. The court noted that he continued to say in a probation report that the behaviour was consensual.
The sentencing judge set a four-year headline sentence and reduced it by half, citing mitigating factors including a first offence, previous good character, family and work circumstances, the late guilty plea, some expression of remorse or regret, and no risk of reoffending. Factors weighing against a reduction included the plea’s lateness, the offence’s seriousness and the injured party’s impact statement.
On appeal, McKenna argued that the mitigating factors deserved more weight and that the judge had erred by not suspending part of the sentence. The Court of Appeal said the 50% reduction was appropriate and perhaps generous in light of the factors on both sides. It also found that the sentencing judge was entitled to reflect the offence’s gravity through an unsuspended custodial term. The court noted that imprisonment was not mandatory for sexual assault, but found no error of principle in imposing custody.
The court also said the impact of imprisonment on McKenna’s family, including the loss of his company and income, was not by itself a reason to suspend the sentence. It therefore dismissed the appeal.