The Court of Appeal has dismissed C.S.’s appeals against his conviction for sexual assault and his 18-month sentence, including the suspension of its final three months.
The court, in a judgment delivered by Ms Justice Donnelly on 1 December 2022, said the jury had been entitled to find C.S. guilty. It also held that the trial judge had acted within her discretion in setting a headline sentence of 30 months and imposing the sentence ultimately selected.
C.S. had been tried on two counts. The jury acquitted him of a separate serious offence and convicted him of sexual assault. The appeal against conviction argued that the verdict was perverse or against the weight of the evidence.
The complainant told the trial that, after consensual sexual contact, she fell asleep and woke to C.S. on top of her, touching her breasts. She said she did not consent and asked him to stop and get off her; he did. In a statement to gardaí, C.S. said he had got on top of her to resume sexual activity and wake her, and stopped when she asked. He disputed that he had groped her breasts.
At the appeal hearing, C.S.’s counsel raised a new argument: that earlier consensual activity could imply consent to later sexual touching while the complainant was asleep. The court refused to hear it as a new ground. It had not been raised at trial or included in the appeal notice, and no explanation was offered for the delay. The court said it did not need to decide whether the argument had merit.
On the original appeal ground, the court found evidence that the complainant was asleep when the sexual contact began. The jury had been directed to consider whether C.S. honestly believed she was consenting and was entitled to reach its verdict. The conviction appeal was dismissed.
The sentence appeal challenged the headline term, the handling of victim impact evidence and the amount of the sentence suspended. The court said the trial judge had confined her consideration of that evidence to the convicted offence, despite the acquittal on the other count. It also rejected the argument that prior consensual sexual contact reduced the gravity of touching someone while they were asleep: the earlier sexual history could not reduce the seriousness of the offence.
The trial judge had identified the offending as being in the lower range of sexual assault, but treated the 30-month headline term as appropriate. She imposed 18 months, suspending the final three months for 12 months subject to conditions including probation supervision and participation in recommended assessment and treatment. The appeal court found the custodial term and limited suspension were within the trial judge’s margin of appreciation. It dismissed the sentence appeal.