The Court of Appeal has refused a Director of Public Prosecutions application to review as unduly lenient two fully suspended sentences imposed on Steven McGinty for possessing and distributing child pornography.
The Circuit Court sentenced McGinty in March 2018 to 18 months’ imprisonment for possession and two and a half years for distribution. The terms were to run concurrently and were suspended in full for 18 months, subject to conditions including supervision by the Probation and Welfare Service. He had pleaded guilty at the first opportunity and was placed on the Sex Offenders Register.
The Court of Appeal heard that an investigation began after McGinty was identified as an online chat-room participant in October 2013. A search of his home found two laptops containing 260 images and four video files. Some images depicted children in sexual activity, including penetrative activity; the court said the material ranged across four of five seriousness categories used in earlier case law. The devices had shared material on multiple occasions over several years. The judgment also described sexual chats in which McGinty communicated with people presented as children and made sexual requests.
The DPP argued that the sentencing judge gave insufficient weight to aggravating factors, including the nature of the images and the period of offending, and that suspending both sentences entirely failed to reflect the need for general deterrence. McGinty’s side accepted that the images and distribution over time were aggravating, but argued that the quantity was relatively limited compared with some other cases and that there was no commercial activity.
The appeal court said general deterrence carries particular weight in these offences because they can be committed privately and may go undetected. It also noted the harm to real children represented in the material. The court said a custodial sentence was always likely and that its own members, if sentencing at first instance, would have been minded to impose one.
But it considered the cumulative mitigating circumstances: McGinty’s early admissions and cooperation, guilty plea, remorse, therapy, favourable assessment of his rehabilitation prospects, loss of his nursing career, family support and delay between detection and prosecution. The judgment noted that the laptop examination was delayed until 2015 because of Garda resource constraints, with the prosecution beginning in 2017.
The court described the fully suspended outcome as being at the very outer limit of the sentencing judge’s margin of appreciation. It nevertheless concluded that the decision had not fallen outside the range in which an appellate court could intervene. The DPP’s application was therefore refused. The court did not resentence McGinty or alter the Circuit Court orders.