The Court of Appeal dismissed Damien Kiely’s appeal against the severity of a five-year prison sentence imposed after his conviction on 23 counts of sexual assault against his younger sister.
The judgment, delivered on 13 December 2016, concerned sentence only. Kiely had initially appealed both his conviction and sentence but proceeded only with the sentence appeal. The Court of Appeal did not reconsider the convictions.
The offences began when the injured party was aged 10 and continued until she was 16. The judgment said Kiely was aged 14 when the abuse began and continued offending until he was 20. The assaults included inappropriate touching, sometimes involving digital penetration, and took place in the family home. The court described the offending as serious and spanning six years.
Kiely had faced trial on a 42-count indictment. A jury convicted him of 23 counts on 24 July 2014 and acquitted him of the remaining counts. The sentencing judge imposed five years’ imprisonment on each count, to run concurrently from 21 July 2014, and suspended the final year subject to a €1,000 bond requiring Kiely to keep away from his sister in perpetuity, except with her consent.
On appeal, counsel argued that the five-year headline sentence was excessive, particularly because most of the offending occurred while Kiely was a minor. The defence also relied on his lack of previous convictions, steady employment, remorse and the passage of time since the offences ended. The Director of Public Prosecutions disputed the sincerity of the expressions of remorse and argued that the sentence was proportionate.
The Court of Appeal said a severe sentence could be altered only if the sentencing judge had made a clear error of principle or acted outside the proper margin of discretion. It found the judge had correctly assessed the available sentencing range, the seriousness of the offences and the circumstances in mitigation. The court rejected the argument based on Kiely’s age, noting there was no evidence that immaturity prevented him from appreciating the wrongfulness or harm of his actions.
The court accepted that Kiely’s previous good character, work record and relative youth were relevant, and found these had been reflected in suspending one year of the sentence. It concluded there was no error of principle in either the assessment of seriousness or the allowance for mitigation, and dismissed the appeal.