Student spared extra jail time for sexually assaulting sleeping woman in videos found on phone involved in fatal car crash
A business student who said he was ‘going in for the kill’ while sexually assaulting a sleeping 20-year-old woman, will not face any extra jail time despite an appeal by prosecutors.
Frank Kelly (24), with an address on Convent Road, Wicklow Town, Co Wicklow, had pleaded guilty to three counts of sexually assaulting a 20-year-old woman while she was in a moment of “particular vulnerability”. She was not aware she had been abused until video clips of the assaults were found on the mobile phone of a man involved in a fatal car crash.
Kelly was sentenced at Bray Circuit Criminal Court to five years imprisonment with the final two-and-a-half years suspended by Judge Michael O’Shea on April 7, 2017.
The Director of Public Prosecutions sought a review of Kelly’s sentence today on grounds that it was “unduly lenient”. However, the Court of Appeal declined to intervene, and Kelly was spared any extra jail time. His release date is February 2019.
Giving judgment in the three-judge court, President of the Court of Appeal Mr Justice George Birmingham said the background to the offence was a rather unusual one.
A man had been involved in a fatal car crash on his way back to Bray from Dublin. His mobile phone was accessed as part of the investigation into the crash and on the phone was found three video clips lasting eight minutes in duration.
In the first clip, Kelly was seen licking the vagina of the injured party and pulling at her clothes.
The second clip showed an act of digital penetration and Kelly remarking that he was going ‘in for the kill’ and ‘going to ruin her’. The victim appeared to stir from her slumber and the clip showed Kelly telling her to go back to sleep.
The third clip showed an act of anal penetration, the judge said.
Mr Justice Birmingham said the victim was not aware of the fact she had been assaulted until the matter was brought to her attention. She found the experience of being asked to view the clips, as part of the investigation, as being “very distressing”.
Kelly, who was 20 at the time of the offences, had no previous convictions and was half way through a business degree studying applied entrepreneurship at the time of sentence.
Counsel for the Director of Public Prosecutions, Lorcan Staines BL, submitted that the two-and-a-half-year suspension of Kelly’s sentence was excessive and that it involved an element of double counting the mitigating circumstances.
Mr Justice Birmingham said these were “very serious offences”. The fact that each of the three assaults took a very different form was an added dimension of seriousness as was the fact that the activity targeted a young woman in a moment of “particular vulnerability”.
While the first clip did not appear to have been recorded by Kelly himself, the second and third clip appeared to have been. This was a further dimension of seriousness which emerged from the very eloquent victim impact report prepared by the injured party, the judge said.
In mitigation was Kelly’s guilty plea (his intention not to contest the case was communicated at an early stage), expressions of remorse conveyed on his behalf, the absence of previous convictions, his youth at the time and his efforts to address his offending behaviour.
Mr Justice Birmingham said the Court of Appeal was “absolutely clear” the offences were “so serious” they had to be met with a “significant custodial sentence”. It didn’t disagree with the starting point of five years and agreed there was scope for some suspension.
He said the suspension of two-and-a-half years of the sentence was “generous”, perhaps “very generous”, and the custodial sentence had to be seen as lenient.
However, he said nothing but a substantial departure from what would be regarded as an appropriate sentence could justify a finding of undue leniency and the Court of Appeal’s intervention.
He said it would have been open to the sentencing judge to “strike a different balance”. Had he suspended 12, 15 or 18 months, it was unlikely Kelly would have successfully appealed.
Mr Justice Birmingham said the court had concluded that the sentence required to be served in prison was not so lenient as to require intervention.
While the two-and-a-half-year jail term was “perhaps on the outer end of the lenient range”, it did not fall outside the range of sentence available to the Circuit Court judge.
In the circumstances, Mr Justice Birmingham, who sat with Mr Justice John Edwards and Mr Justice John Hedigan, said the court was not prepared to intervene as requested and the DPP’s application was refused.
The court heard that Kelly has a release date in February 2019.