The Court of Criminal Appeal reduced Bryan O’Byrne’s three-year prison sentence for possession of child pornography to two years, finding that the sentencing process did not give sufficient weight to mitigating factors. It also proposed a three-year post-release supervision order, but reserved the order’s final form for submissions from counsel because the issue had not been argued at the appeal hearing.
O’Byrne had pleaded guilty to the offence under section 6 of the Child Trafficking and Pornography Act 1998. He was sentenced on 23 May 2012. The offence occurred on 9 December 2008, when gardaí searched his flat at Newbridge Avenue, Sandymount, under warrant. A hard drive contained 15,000 images, including 3,200 images, films and video clips classified as child pornography. The court described the material as among the most serious on the scale used to assess it, and said software had been set up to obtain it over at least two years.
The appeal court accepted that the offence was at the upper end of the scale of seriousness. It said the material had been downloaded through peer-to-peer technology, but the case proceeded on the basis that O’Byrne did not make it available to others. The court noted there was no evidence of active circulation, showing the images to anyone else, or a connection with another sexual offence.
The court held that errors in the sentencing process required it to reconsider the sentence. It said the earlier process had not sufficiently addressed extensive reports about O’Byrne’s background and circumstances. Those reports described a troubled upbringing, medical and neurological difficulties, a history of alcohol and drug dependence, and treatment and counselling after his arrest. The appeal court also noted reports assessing his risk of reoffending as low if he maintained sobriety and support. O’Byrne had pleaded guilty at the earliest opportunity and had no previous convictions for sexual or related offences.
The court said the case still warranted immediate custody. It set aside the three-year sentence and substituted two years’ imprisonment. It proposed that, for three years after release, O’Byrne be supervised by a probation and welfare officer and follow directions concerning abstinence and therapy. The court did not make the supervision order’s final terms at that stage; it directed that it would hear counsel’s submissions on the appropriate form of that part of the order.