Saturday 20 January 2018

DPP wins Supreme Court appeal to ensure ten-year maximum sentence is available for any offence of indecent assault on men between 1981-1990

Four Courts
Four Courts

Tim Healy

THE DPP has won a Supreme Court appeal to ensure a ten year maximum sentence - rather than two years - is available for any offence of indecent assault on males which occurred between 1981-1990.

A six-judge court today unanimously overturned a decision of the Court of Appeal the maximum sentence is two years.

While the judgment has implications for persons charged with such offences between those dates, it does not alter a three year sentence

imposed on a hurling coach, now aged in his seventies,  in whose case the maximum sentence issue was raised.

Giving the court's judgment, Mr Justice Donal O'Donnell noted, for more than 100 years, sentencing provisions in Ireland distinguished

between indecent assaults on males and females until the law was changed to make such offences, since renamed sexual assault offences, "gender neutral".

An 1861 law, he noted, provided for a maximum ten year sentence for such offences on males while a 1935 law provided a maximum two years for such offences on females.

A "perhaps inevitable" challenge on grounds of equality succeeded in the High Court in 2007 when Ms Justice Mary Laffoy ruled different penalties for indecent assault on males and females breached the constitutional guarantee of equality.

The 2007 decision was accepted as meaning that, until 1981 when the maximum sentence for sexual assault on a female rose to ten years, the maximum sentence that could be imposed upon a male victim of sexual assault was two years imprisonment.

The Supreme Court had to decide the consequence of the 2007 decision for sentences for indecent assault offences between 1981 and 1990, a different law applied a maximum five year sentence was introduced for the now renamed offence of sexual assault.

If the Court of Apeal decision on a maximum two year penalty was upheld, that could mean anyone convicted of sexual assault on a female between 1981 and 1991 could also only be sentenced for a maximum two years, Judge O'Donnell said.

There was no reason why the Constitution "must be deployed as a bludgeon when it is capable of being used as a scalpel".

The effect of the 2007 High Court decision was not to limit the maximum penalty for indecent assault on a male to two years but rather to limit the penalty to the maximum then available for sexual assault on a female at the relevant time, he ruled.

That meant, for such assaults between when the Constitution came in (1937) and 1981, the maximum penalty was two years. After 1981, it was ten years.

While allowing the DPP's appeal on the maximum sentence issue, the court refused to alter the three year sentence imposed on the hurling coach who had admitted 19 offences of indecent assault on two boys - five against one boy on dates in 1984 and 14 against the second boy on dates between 1982-84.

The offences had a profound and lasting adverse impact on both victims and the coach had expressed remorse and offered an "unreserved apology" to them, the court heard.

After the DPP appealed that sentence as unduly lenient, the Court of  Appeal found a maximum two year sentence applied to indecent assault offences between 1981 and 1990 but imposed an additional one year term on the man after directing a reduced sentence of one year on one of the counts be served consecutively.

The Supreme Court found, in all the circumstances, including the man was freed after two years but later re-imprisoned to serve a third year, the three year sentence was not unduly lenient.

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