The Court of Appeal has reduced the prison sentence imposed on an anonymised man, D. O’D, for eight sexual offences involving his mentally impaired cousin.
D. O’D was convicted at Dublin Circuit Criminal Court in April 2012 of eight counts of sexual intercourse with a mentally impaired person contrary to section 5 of the Criminal Law (Sexual Offences) Act 1993. His appeal against conviction had already been dismissed in November 2015. This judgment dealt only with sentence.
The original sentence was five years’ imprisonment on each count. The Court of Appeal found that the sentencing judge had made an error by treating the mere fact of the complainant’s mental impairment as an aggravating factor.
Mental impairment was already an essential element of the offence, the court said, and could not therefore aggravate sentence simply by being present. Its degree could still matter. A greater impairment and vulnerability could increase an offender’s culpability, while a milder impairment could reduce it.
Having viewed the complainant’s evidence, the court found that she had a mild mental impairment and functioned at a relatively high level. She was articulate, had a good memory, had worked in sheltered employment, had cared for elderly parents and could travel independently.
The court nevertheless stressed that D. O’D knew her circumstances well because he was her cousin and had occupied a position of trust towards her.
The appeal court also found that the original sentencing exercise had not clearly identified the gravity of the offences before applying mitigation. It gave additional weight to D. O’D’s lack of previous convictions, admissions, remorse and particularly the considerate way the trial had been conducted, which reduced the stress placed on the complainant.
The court resentenced him to three years’ imprisonment with the final 18 months suspended for two years and directed that he receive credit for eight months already served.