The Court of Criminal Appeal allowed an appeal by James Kennedy and suspended in full the sentences imposed for two indecent assaults, subject to his undertaking to keep the peace and be of good behaviour.
The judgment, delivered by Kearns J on 14 April 2008, said Kennedy had pleaded guilty in the Central Criminal Court on 26 November 2007. The offences occurred at an address in Dublin on dates between January 1972 and December 1975. The complainant, his wife’s niece, was nine or ten at the time. The judgment described two incidents in her bedroom, including one in which Kennedy exposed himself and another in which he touched her under the bedclothes.
He received six months’ imprisonment for the first offence and nine months for the second, to run concurrently. The appeal was listed early because the sentences might have expired before it was heard and because of Kennedy’s advanced age and deteriorating health.
For Kennedy, counsel argued that the offences were at the lower end of seriousness and that the sentencing judge had not adequately considered whether they might have been dealt with summarily. Counsel also relied on medical reports describing significant illness and disability, and argued that the judge had not given sufficient weight to the effect imprisonment would have on Kennedy’s remaining health. The appeal submissions further cited his lack of previous convictions and remorse.
The Director of Public Prosecutions accepted that the case was exceptional. The respondent said Kennedy’s age and health would have permitted a fully suspended sentence and that it would not have sought a review for excessive leniency if the sentencing judge had imposed one.
The appeal court said the sentencing judge had set out reasons for imposing prison terms. It found an error of principle only to the extent that insufficient weight had been given to Kennedy’s illnesses and declining health. The court said this did not diminish the gravity of the offences or the hurt and distress caused to the complainant.
The court therefore allowed the appeal and suspended both sentences in their entirety, on Kennedy’s undertaking in court to keep the peace and be of good behaviour.