The Court of Appeal left BM’s seven-year sentence for sexual assault in place but suspended its final two years, rather than the final year suspended by the Circuit Court. It also ordered 12 months of post-release supervision under the direction of the Probation Service.
The appeal concerned the severity of the sentence imposed in Cork Circuit Court on 7 July 2016. The Court of Appeal delivered judgment on 9 May 2017. It said the offence was at the upper end of the scale of gravity and that a significant custodial term remained necessary.
The case concerned an incident on 29 April 2014. The complainant, identified in the judgment as Ms EC, was 16 and BM was 19. The court recounted that she had arranged to meet BM, her former boyfriend, and was later left unconscious and not fully dressed on a footpath. Members of the public found her in a hysterical state. BM later admitted being with her and attempting to have sex, but said it was consensual. He had pleaded guilty to one count of sexual assault.
BM appealed on several grounds, including that the sentencing judge had not resolved conflicts in the account of how alcohol was provided and who first raised the subject of sex. The Court of Appeal considered those points but did not regard them as substantial. It said the alcohol issue had not been described by the sentencing judge as involving coercion, and that any material factual dispute should have been stated directly to the judge at sentencing.
The appeal also challenged the sentencing judge’s reference to touching and digital penetration, which the Court of Appeal said was unsupported by evidence. It nevertheless found the reference did not materially affect the sentence, as it described conduct less serious than the repeated attempts at intercourse that were alleged and established.
The court’s concern focused on compensation. The sentencing judge had identified a ten-year term as appropriate before mitigation, reduced it by three years for the guilty plea, then imposed seven years with the final year suspended. Although the sentencing hearing had addressed compensation, the judge’s remarks did not explain what weight, if any, he gave the substantial sum offered and accepted as a token of remorse.
The Court of Appeal said the payment was significant, particularly given the family’s limited means. It altered the balance between time to be served and time suspended, while retaining the seven-year sentence and the original suspension conditions. The final two years are suspended for two years, subject to good behaviour, remaining drug and alcohol free, and engaging with the Probation and Welfare Service. The order also requires 12 months of post-release supervision.