Judge denies elderly man's appeal to shorten sex abuse jail sentence 'because he'll die before sentence expires'
The Court of Appeal has upheld a 73-year-old man's four year jail term for abusing his granddaughter despite a contention from his lawyers that he could “expire before the sentence expires”.
The frail man with multiple medical difficulties, whose details cannot be published to protect the victim's identity, had pleaded not guilty at Cork Circuit Criminal Court to four counts of sexually assaulting his granddaughter on dates between July and October 2013.
He was sentenced to seven years imprisonment with the final three suspended by Judge Seán O'Donnabháin on April 21, 2016.
The three-judge Court of Appeal upheld the man's sentence today despite an appeal by the Director of Public Prosecutions that it was too lenient and a “cross appeal” by him that it was too severe.
The DPP submitted that the man's medical difficulties did not justify the sentence while the man's lawyers claimed their client could expire before his sentence does.
Giving judgment, Mr Justice George Birmingham said the man's wife had died one month before the first offence. The victim was sent to spend time with him because he was seen as lonely.
The offences involved a game of strip poker and ejaculation, acting out a pornographic scene and ejaculation and digital penetration which was interrupted by the phone ringing.
Mr Justice Birmingham said the trial was fully contested and the “child complainant” was cross examined on the basis that this was a “scam to obtain money” from her grandfather.
The man had a background in maritime activities and was a “major figure” in a national charity at his local level. He had cared for his dying wife, had made a positive contribution to society and had never come to adverse garda attention.
Counsel for the DPP, Siobhán Lankford BL, submitted that the actual term to be served of four years did not meet the gravity of the offence and that the medical difficulties provided no justification for such a lenient sentence.
In his appeal against sentence, the man's barrister, Patrick Gageby SC, submitted that the sentencing judge erred in taking the view that the man's medical difficulties would be dealt with as effectively in prison as they would in the community.
His GP stated that he was a “sick old man” who required access to an oncologist, dermatologist, cardiologist and may need to be referred to a respiratory physician. She stated that the imposition of a prolonged custodial sentence was equal to a death sentence.
Mr Gageby said there was a real risk the man “will expire before the sentence expires” while Ms Lankford urged the court to focus more on the various consultants who did not provide “alarming prognoses”.
The court heard that the man had been advised to stop smoking. However, e-cigarettes “apparently can't be sent into prison”. It was a “procurement problem”, the court was told.
Mr Gageby added that the point about his client not being able to get e-cigarettes in prison was not his best argument.
Mr Justice Birmingham said this was a difficult case. The offending was particularly serious and, unlike other abuse cases, had been committed in the recent past. The case was contested and there had been “no remorse”.
On the other hand, the combination of the man's age, frailty and the multiple medical issues required and demanded the sentence had to be significantly less than would have been imposed on a person younger in age and in good health, the judge said.
Mr Justice Birmingham said it was clear that the sentencing judge engaged in a difficult balancing exercise. In the Court of Appeal's view, the sentence fell “well within” the margin of appreciation afforded to sentencing judges.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would refuse the application to review the man's sentence, would dismiss the man's appeal against sentence, and uphold the sentence imposed in the Circuit Court.
The man did not attend court for the hearing.