The Court of Appeal reduced a man’s sentence for sexual assault from three years to two, suspending the final six months subject to a bond to keep the peace and be of good behaviour for 12 months after his release. It also ordered one year of post-release supervision on the usual terms.
The ex tempore judgment was delivered on 9 December 2014 by Mr Justice Sheehan, with Birmingham and Edwards JJ. The appellant, identified as M.S., had been convicted after a three-day trial. The appeal concerned sentence, not the conviction.
The parties agreed that the appellant visited the injured party’s father at his home with two bottles of vodka. After the father collapsed, the appellant and the injured party helped him to bed. The injured party, who was 15 at the time, later went to bed beside her brother. The appellant got into the bed, held her, rubbed against her, kissed the back of her neck and touched her breast and groin over her clothing. She left the room, called her mother and returned to her mother’s home. The appellant denied the offence at trial; the jury convicted him.
The appellant argued that the three-year sentence was disproportionate and that the trial judge had not given proper weight to his circumstances and mitigating factors. The prosecution argued that the sentence was appropriate given the girl’s age, the breach of trust, the assault, alcohol and its psychological effect. The Court of Appeal noted that the trial judge had mistakenly treated the maximum sentence as 10 years, when it was 14.
The court said the appellant’s decision to go to trial meant he lost the significant mitigating factor of a guilty plea, though it did not disregard his late admission. After conviction, he accepted the verdict, said he had done wrong and apologised to the victim. The court identified an error of principle in setting three years as the appropriate sentence. It treated the offence’s short duration and the fact that the touching was over clothing as relevant to sentence, while stressing that sexual offences are serious.
The court set two years as the appropriate starting point and agreed with the trial judge’s recognition of mitigating factors. It suspended the final six months on the stated bond condition. It also ordered one year of post-release supervision, noting concern about the appellant’s insight because his admission came late.