The Court of Appeal quashed a 16-month prison sentence imposed on J.S. for indecent assault and resentenced him to 13 months, backdated to 15 February 2017.
In its judgment delivered on 4 December 2017, the court found that the sentencing judge had made an error of principle by setting a 20-month headline sentence. The Court of Appeal said that sentence was too severe given the two-year maximum available under the law at the time of the offence and the range of offending that limit had to cover.
The offence occurred on St Stephen’s night in either 1980 or 1981, at a family gathering in a Dublin suburb. The complainant, J.S.’s niece, was nine or at most 10. The Court of Appeal’s account of the evidence at the sentencing hearing said she awoke to find J.S. touching her under her underwear. After she cried and told him to stop, he left and returned about 20 minutes later, masturbating at the doorway of the room where children were sleeping.
The complainant told her mother when she was 18 and reported the matter to gardaí in 2014. The court recounted her evidence that the assault affected her relationships, trust and family life, and that she experienced flashbacks. J.S. denied the offence when interviewed, but accepted that he had stayed in the house that night. A jury convicted him.
The sentencing judge treated the complainant’s age and vulnerability, the family relationship and breach of trust, the presence of other children, the duration of the assault and the accused’s conduct afterwards as aggravating factors. The judge also noted that the offence took place on one night and was not part of systematic abuse over a prolonged period.
The Court of Appeal said an offence in the upper end of the mid-range, which it described as eight to 16 months within the available 24-month range, should have received a headline sentence between 12 and 16 months, not 20 months. It set the headline sentence at 16 months and deducted three months for mitigation, leaving a 13-month sentence.
The court rejected the appellant’s separate claim that the sentencing judge had allowed too little for mitigation. It said the original sentence had adequately accounted for the mitigating factors. The resentencing order was that the 13-month term run from 15 February 2017.