The Court of Appeal has allowed a Director of Public Prosecutions appeal against sentences imposed on a care assistant who pleaded guilty to sexually assaulting two women with profound intellectual disabilities in a care facility.
The court quashed the original concurrent 18-month sentences, which had been suspended in full, and resentenced the man to 18 months on each count, to run concurrently. It suspended the final six months of each sentence, subject to the conditions imposed by the Circuit Criminal Court.
The judgment, delivered by Mr Justice Hedigan on 17 May 2018, said the assaults involved an “egregious breach of trust”. The women were patients in the facility where the respondent worked. One was 71 and had advanced dementia. The other, who was 65 when she died, had lived at the facility from 2013.
In the first incident, between 24 and 25 June 2016, the man lifted the first woman’s nightdress and touched her exposed breasts. He recorded the assault on a mobile phone. The video was mistakenly posted to Facebook and investigated. In the second incident, on an unidentified date between February 2013 and January 2016, he groped the second woman’s breast through her T-shirt for about five seconds. That assault was also electronically recorded.
The DPP argued that the sentencing judge had underestimated the seriousness of the offending and placed excessive reliance on a psychological report. The respondent argued that the sentence was within the judge’s discretion, given the circumstances of the offences and his personal circumstances.
The Court of Appeal said the sentencing judge had approached the task carefully, but found that treating the assaults as minor offences that might have been dealt with in the District Court was a clear error of principle. It said the women were profoundly vulnerable and their families had been badly affected. The court also said it was unknowable what the women had understood about the assaults.
The court placed the offending at the upper end of the lower range of seriousness, below the middle range. It said this would normally attract a custodial sentence of up to three years. Taking account of mitigating factors, including counselling and voluntary work reported to the court, it assessed two years as appropriate before applying its usual reduction in undue-leniency appeals where no custody had originally been imposed. It imposed concurrent 18-month terms and suspended the final six months to incentivise rehabilitation.