Friday 15 December 2017

Child minder's son sentenced to two years for sexually assaulting five-year-old boy has sentence increased

Brian Kavanagh

A child minder’s son sentenced to two years for sexually assaulting a five-year old boy who was in the care of his mother has had his sentence increased after a successful appeal by the Director of Public Prosecutions.

Mr Justice Nial Fennelly, presiding at the Court of Criminal Appeal, today (Monday) said the court had found the two-year sentence imposed on the now 22-year-old man “went beyond leniency” and met the required standard of having fell outside the discretion of the sentencing judge.

In January of this year the man, who cannot be named for legal reasons, was jailed for two years by Judge John O’Hagan after pleading guilty at Monaghan Circuit Criminal Court to four counts of sexual assault at his mother’s Monaghan home on various dates in 2011.

The court heard that then five-year-old boy was in the care of the respondent’s mother, who was a child minder, when the assaults took place. The victim would enter the man’s bedroom and be compelled to perform a sexual act on the man.

Counsel for the State, Mr Frank Martin BL, had submitted that the sentence imposed on the respondent was unduly lenient.

He said the court should note the victim was five years old at the time, while the sentencing judge himself had described the matter as being a “very serious case”.

Mr Martin submitted that the nature of the offending meant it fell on the “midpoint” of the scale of seriousness for sexual assault, which carries a maximum penalty of 14 years. He said Judge O’Hagan should have begun with a sentence of seven years before allowing for the mitigating circumstances and working backwards.

He said there was a great disparity of age between the victim and the offender, who abused a position of trust over a six-month time period. Mr Martin told the court that there was also an absence of post-release supervision guidelines, which the sentencing judge had refused to impose.

Counsel for the respondent, Mr Anthony Sammon SC, had argued that while the sentence was lenient it was not unduly so.

He said Judge O’Hagan had stated that the matter was a “very serious case”, which demonstrated that he was not underestimating the “quantum of wrongfulness” involved.

Mr Sammon asked the court to have regard to the “impressive” way in which the respondent met the case, including his total confession, his full expression of remorse, his plea of guilty and his cooperation with the investigation.

He said the respondent had referred to having been sexually abused himself as a child.

Mr Justice Fennelly said the court found there had been an error in principle and the two-year sentence imposed was unduly lenient.

He said the court had concluded that the matter was a “mid-range” offence and, having regard to the mitigating factors, regarded the appropriate sentence was one of five years imprisonment with two years suspended.

In lieu of a formal order of post-release supervision, Mr Justice Fennelly said the final two years would be suspended on condition that the man submits himself to the supervision of the probation services upon his release.

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