The Court of Appeal has quashed an 18-month sentence imposed for the sexual assault of an 11-year-old girl and substituted a three-year prison sentence, suspending the final year and allowing credit for time already served.
The judgment, delivered in Cork on 6 December 2019, followed an application by the Director of Public Prosecutions to review the sentence as unduly lenient. The original sentence was 18 months’ imprisonment, with the final 12 months suspended.
The court said the offence occurred on 15 May 2017, when the girl was walking home from school. It found that Gerard Fitzgerald gained her confidence by speaking about relatives he knew, led her away from her route and digitally penetrated her vagina twice. The appeal court said it had to approach the case on the basis that penetration occurred.
The court heard that the assault had a significant impact on the child. A statement read during the sentencing process described fear of walking to school alone, social isolation at school, flashbacks and episodes of crying. The appeal court said the sentencing judge’s description of her as having made an “excellent recovery” did not reflect the full picture.
The sentencing process involved hearings in December 2018, February 2019 and June 2019. The appeal court noted that the sentencing judge had recognised the seriousness of the matter and the complainant’s age, but concluded that the sentence imposed did not reflect the gravity of the offending.
The court considered a five-year sentence before mitigation justified. It cited the guilty plea, which spared the child from giving evidence, Fitzgerald’s health issues and the fact that he would be imprisoned for the first time as mitigating factors. It assessed a 40% reduction as appropriate, producing a three-year sentence.
The appeal court said Fitzgerald had served the original sentence in full and had recently been released. To account for that disappointment, it suspended the final year of the replacement sentence. It quashed the Circuit Court sentence and substituted three years’ imprisonment, with the final year suspended and credit for time spent in custody to date.