A MAN jailed for offering a 13-year-old boy €50 for sex on a busy street has had his five year prison sentence cut to 12 months on appeal.
Thomas Folliard (64), of Church Road, Aughamore, Ballyhaunis, Co Mayo, had pleaded not guilty at Castlebar Circuit Criminal Court to sexual exploitation of a child in a Mayo town in January 2016.
He was unanimously found guilty by a jury after over an hour of deliberations and sentenced to five years imprisonment by Judge Rory McCabe last October.
Folliard lost an appeal against his conviction today, with the Court of Appeal holding that his trial was satisfactory and the verdict safe. However, he had his sentence cut to 12 months following a successful sentence appeal.
Giving background, Mr Justice George Birmingham said the boy had gone to a local Tesco shopping centre on the day in question on his way home from school. Before going into the Tesco store, he went into the toilets and noticed a male who was a stranger to him. The boy then went into the store and the male followed him.
The boy then left the shop and walked along a number of streets in the town conscious that the male he had observed in Tesco was following him.
When the man caught up with the boy, he asked whether he would like to earn some money to which the boy said no. The man then asked the boy whether he would have sex with him in return for €50 to which the boy also said no. The man then left the scene.
When the boy’s mother returned home, she was surprised to find her son in the house because normally he would be at GAA training. She noticed all was not well.
CCTV footage was available from Tesco and from a public building in the town which showed the boy walking along the street and “very shortly afterwards” a person who, it is accepted was Folliard, is shown going in the same direction.
“He was moving quickly, in effect jogging, such that if he maintained that pace he would very quickly catch up with” the boy or overtake him, Mr Justice Birmingham said.
This same individual was visible earlier in the shopping centre, in the mall, going out of view, coming back into view, entering the store, leaving the store area and leaving, it seems without making any purchase, shortly after the boy had left, the judge said.
The boy had described the person who propositioned him as being white, 5’7”, as having dark hair, a slightly grey, receding hairline, a moustache and wearing a red top.
Folliard was arrested in April and appeared to be wearing he same clothes as he had on January 13, 2016.
There was no identification parade and the focus of Folliard’s argument was that the boy’s description referred to a red cardigan and moustache whereas the person shown in the Tesco footage was wearing a blue jacket.
Counsel for Folliard, Lorcan Staines BL, said gardaí selectively chose clips of CCTV footage from the shopping centre and asked the complainant to identify himself on the footage as well as the person he believed propositioned him. However, there was only one adult in the selected clips and essentially, only one person to pick out.
Mr Staines said the request to pick out the person he believed propositioned him was a leading, “self-answering” question. For example, the boy wasn't asked to identify the person who propositioned him “if” he appeared in the footage.
It was important to remember, Mr Staines said, that the boy was 13-years-old and the gardaí already had a suspect in mind “well in advance of showing the footage”. He said the boy resiled from his identification evidence under cross examination.
Mr Justice Birmingham said this was “very far” from a classic identification case. He said the available CCTV footage provided what was effectively a continuum.
Most significantly, he said, the footage from the public building clearly showed “someone wearing the same clothes that Mr Folliard was wearing minutes before in Tesco running after the injured party and then returning in the direction” he came from.
Mr Justice Birmingham said the three-judge court had viewed the footage from the shopping centre and public building and were in “no doubt about its significance”.
It wasn’t clear that an identification parade would have added or subtracted very much to the case. If the boy had picked the wrong person on an identification parade, there would still be the “real evidence” recorded by cameras of what occurred in the shopping centre and on the road.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court had not been persuaded that the trial was unfair or unsatisfactory and the appeal was dismissed.
A further ground in relation to the cross examination and reexamination of the complainant was also rejected.
Turning to the sentence appeal, Mr Justice Birmingham said it was far from a trivial case but that the offence was on the low end of the spectrum. He said the contact was brief, in daylight hours, on a busy street near a garda station, which might have served to make the contact less threatening, and confined to uttering three sentences.
He said Folliard had no previous convictions and a positive good character. Folliard was said to have been very helpful to elderly neighbours - those in their 80s and 90s - and he was "very active" in his church community. He also had health issues owing to a brain haemorrhage he suffered aged 37.
The court substituted a sentence of 12 months imprisonment for his original term of five years.