The Court of Criminal Appeal has dismissed Ian Cullen’s appeal against a six-year sentence for three sexual assaults committed when he was 16. The court held that suspending half the sentence was within the sentencing judge’s discretion and that neither the sentence nor ancillary orders were excessive or disproportionate.
Cullen had pleaded guilty in the Central Criminal Court to three counts of sexual assault under section 2 of the Criminal Law (Rape) Amendment Act 1990. The offences occurred on various dates in September 2003, when the complainant, his five-year-old niece, was in his bedroom. The judgment described the assaults as involving Cullen blindfolding the child and putting his penis in her mouth.
On 19 March 2013, the trial judge imposed six years’ imprisonment, with the final three years suspended on conditions. Cullen argued that the judge had structured the sentence incorrectly and had failed to give adequate weight to mitigation, particularly the delay in bringing the case. His counsel said the delay was not caused by Cullen and that an earlier prosecution might have allowed him to be dealt with under the Children Act 2001.
The appeal court rejected the argument about sentence structure. It said a sentencing judge need not separately reduce a notional sentence for mitigation and then consider suspension: suspending all or part of a sentence can itself be a way of mitigating it. The basis for the sentence must be apparent and consistent with sentencing principles, but each step need not be set out in a rigid form.
The court acknowledged the mitigation put forward for Cullen, including his age when the offences occurred, early engagement with therapy, admissions and apology, guilty plea, lack of further offending, engineering degree, employment and low assessed risk of reoffending. It also considered that the first complaint to gardaí was made in 2009, more than six years after the offences, and that Cullen was charged in April 2012. The court said he had not specifically caused the delay, but the complainant’s very young age and the circumstances of the offences contributed to it. Delay was relevant, but not a major determining factor in this case.
The court said the offences were grave and involved a very young, trusting child. It concluded that the trial judge had properly balanced the circumstances and acted within his discretion in suspending half, rather than a greater proportion, of the six-year term. It also upheld the ancillary orders, including those concerning the sex offenders register. The court noted material indicating that Cullen should continue therapy and assumed the prison service would provide it.
The appeal was dismissed.