The Court of Appeal increased the suspended portion of an 82-year-old man’s sentence for indecent assault, finding that the balance between custody and suspension did not adequately account for his age, poor health and frailty.
In a judgment delivered on 31 July 2017, the court varied a sentence imposed in the Circuit Court in Wicklow on 7 April 2017. The two-year sentence remained, but the final 15 months were suspended, up from the six months suspended by the sentencing judge.
The appeal concerned five counts of indecent assault said to have occurred between 1 September 1968 and 11 September 1969. The appellant had pleaded guilty to two counts on 19 December 2016; the other three counts were taken into consideration at sentencing.
The judgment said the complainant was eight when the offending began. She had grown up on a family farm in Wicklow. The appellant was a neighbour, worked on the farm and was a family friend who spent much time at the family home. The court described abuse in the home and outside it, and said it had a very serious, lifelong impact on the complainant. A victim impact report told the sentencing court that she had once attempted suicide and was hospitalised.
For the appellant, counsel argued that the sentence was too long given the time since the offending and the effective 18-month custodial term for an 82-year-old. The judgment noted that he had no previous convictions and was otherwise of good character. A general practitioner’s report described several health conditions, including chronic obstructive airways disease, heart problems, osteoporosis, anxiety and depression.
The Court of Appeal said the offending was serious and agreed that a custodial sentence was required. It did not disagree with the Circuit Court’s choice of a two-year headline sentence. It also addressed uncertainty about the maximum sentences available: the Director of Public Prosecutions had argued that the maximum for the second and later offences was five years, but accepted on appeal that the maximum was two years for all the offences. The Court of Appeal said any resulting error had limited practical significance because the sentencing judge imposed a two-year starting sentence on each count.
The court intervened only on the suspended portion, concluding that a greater part of the sentence should have been suspended in light of the appellant’s age, health and frailty. The Circuit Court sentence was varied accordingly.