The Court of Appeal has refused a Director of Public Prosecutions application to review as unduly lenient the sentence imposed on Frank Kelly for three sexual assaults.
Kelly received five years’ imprisonment at Wicklow Circuit Court on 7 April 2017, with the final two and a half years suspended and two years of post-release supervision. The DPP did not challenge the five-year sentence before suspension, but argued that too much of it had been suspended.
The Court of Appeal, in an ex tempore judgment delivered on 28 June 2018, described the offences as very serious. It said the three assaults took different forms and targeted a young woman when she was particularly vulnerable. The assaults were recorded on three clips found on the mobile phone of a man who died in a fatal car crash. The court said the second and third clips appeared to have been recorded by Kelly.
The woman had not been aware of the assaults until Gardaí brought them to her attention. The judgment said viewing the clips had been very distressing for her. The Court of Appeal declined to view them, citing the detailed descriptions already available and her privacy rights. It said viewing the material would be unnecessary, particularly because the appeal concerned the extent of the suspended sentence.
The court accepted that a significant custodial sentence was required and agreed with the five-year sentence after mitigation. It also agreed that some suspension was appropriate. It described the two-and-a-half-year suspension as generous, possibly very generous, and said the time Kelly was required to serve was lenient.
But the court said a lenient sentence alone was not enough to justify intervention. In a review under section 2 of the Criminal Justice Act 1993, the DPP had to show a substantial departure from the appropriate sentence amounting to undue leniency. The court said a Circuit Court judge could have suspended a shorter period, such as 12, 15 or 18 months, without prompting appellate intervention; that did not decide whether this sentence crossed the required threshold.
In refusing the application, the Court of Appeal weighed the seriousness of the offences against mitigation including Kelly’s guilty plea, communicated intention to plead at an early stage, remorse, lack of previous convictions, age of 20 at the time, counselling, and support from his father, girlfriend and employer. It concluded that the time he was required to serve was at the outer end of the lenient range but remained within the range of sentences available. The court did not alter the sentence.