Sunday 22 September 2019

High Court sets aside custodial sentence handed down to man who took 12,000 pictures of his female neighbour

Stock picture
Stock picture

Aodhan O Faolain and Ray Managh

The High Court has set aside the nine-month custodial sentence imposed by a lower court on a man who admitted to taking 12,000 pictures of a female neighbour without her knowledge or consent.

The orders were imposed on Mark Mooney of Corish Park, Wexford Town, who in 2018 was convicted before the District Court after he admitted harassing a neighbour, contrary to Section 10 of the 1997 Non-Fatal Offences Against the Person Act.

The District Court judge hearing the case imposed a nine-month custodial sentence on Mooney but suspended the final seven months on condition he does not reside within a distance of 8km of the injured party. 

The District Court also made a separate permanent order that the man does not reside within 8km of the woman.

Mooney brought a High Court challenge against the orders.

In his judgement on Friday, Mr Justice Garrett Simons agreed that the sentence was disproportionate and should be set aside, and will rule at a later date if the matter is to be remitted back to the District Court. 

The court heard that Mooney, who is aged in his 50's, had taken thousands of photos of the woman over an eight-year period while she was in the garden of her house.

The woman was unaware that she was being photographed. Garda recovered the photographs from the hard drive of Mooney's computer.

Mooney,represented by Dylan Redmond Bl, instructed by solicitor Edward King, brought High Court judicial review proceedings seeking to have the sentence set aside.

The action was brought on grounds including that it was unreasonable, disproportionate and adversely affected his constitutional rights.

It was also submitted that the District Court orders were made in excess of jurisdiction.

He claimed that the order would prohibit Mooney from residing in the town where he has always lived.

The proceedings were against the Director of Public Prosecutions.

The DPP had opposed the action and had argued that Mooney's complaints should be dealt with by way of an appeal of the District Court's orders to the Circuit Court. 

In his decision, Mr Justice Simons said that he was satisfied to set aside the sentence imposed by the District Court on Mooney in its entirety.

He said that the District Court orders against Mooney were made in excess of that court's jurisdiction.

The restriction imposed on Mooney, he said was "disproportionate in that it involves an unjustified and excessive interference with the applicants right to liberty and his right to free movement within the State."

He said that this was "one of the exceptional cases where judicial review was a more appropriate remedy than an appeal."

The Judge then adjourned the matter to October when he said he would consider submissions from counsel in the case whether the matter should be remitted back to the District Court.

Mooney was not present in court for Friday's ruling.

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