Court of Appeal dismisses appeal against severe sentence for repeated indecent assault on a younger sister.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

25/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

K.C.

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 6th day of October, 2016 by Mr. Justice Birmingham

1. This is an appeal against severity of sentence. The sentence under appeal is one of nine years imprisonment that was imposed in

respect of a count of indecent assault with some fifteen other counts of indecent assault taken into consideration. The sentence in

question was imposed on the 12th January, 2015, in the Dublin Circuit Court after the appellant had been convicted of the offences in

question following a contested trial.

2. The appellant then appealed conviction and sentence to this Court and an appeal against conviction was dismissed on the 30th

May, 2016. In the course of court’s judgment at that stage the background facts are referred to in some detail and it is not proposed

to repeat that exercise at this stage. For today’s purposes it is sufficient to recall that the convictions related to offences that were

committed during the period between 1983 and 1987 when the complainant was aged between seven and eleven years of age, and

the appellant was at that time between the ages of 21 years and 25 years.

3. The appellant and complainant were brother and sister. Around the time of the complainant’s first communion in 1983, she was

indecently assaulted by the appellant in a bedroom of the house where they lived. That became a regular, indeed constant

occurrence over the following years, occurring approximately four or five times a week. The abuse initially consisted of oral sex

performed on the complainant and then it would also involve the appellant lying on the complainant with his trousers unbuttoned and

rubbing his penis against her vagina area. The abuse continued until she was eleven years of age at which stage the complainant

attended sex education classes in her school and then realising the significance of the abuse told the appellant that it was wrong and

the abuse ended. It is to be noted that the abuse was interrupted by two periods of absence from the family home on the part of the

appellant.

4. At the sentence hearing there was victim impact evidence which demonstrated that the complainant had been severely affected.

While at some stages she sought to block out the abuse memories resurfaced. She suffered from depression, felt suicidal at times and

self harmed. She sought to deal with her situation with alcohol and prescription drugs.

5. So far as the appellant’s background and circumstances are concerned, he was 52 years of age and he had a number of previous

convictions, mainly for road traffic and public order offences, but none that were directly relevant. He had a good work history

including having spent some 25 years working for a particular window company. The court heard that he had a young family, his wife

having given birth to a little girl who was some two and a half years old at the time of sentencing. The appellant also had an older

daughter, an eighteen year old daughter from a previous relationship and he had a good relationship with this daughter at the time of

the sentencing hearing.

The judge’s sentencing remarks.

6. In the course of his sentencing remarks the judge commented as follows:-

“You have been found guilty by a jury of your peers of the sexual assault on your sister, between a certain period of time

or during a certain period of time in the 1980s. Now, the sexual assaults as described in themselves are not the most

serious sexual assaults, but what is incredibly serious is the number of times you assaulted your sister. Obviously, and I

must accept is as well, that you assaulted your sister in excess of a couple of hundred times. This is incredibly serious.

You were an adult at the time, she was a child. You were 21 to 25 at the time, she was 7 to 11 so you must have known

that what you were doing was wrong and you still continued to do it, so I have to sentence you on that basis.”

7. The judge then referred to factors in favour of the accused such as his record as a hardworking man and to the fact that there

was a number of individuals dependant upon him in an economic way as well as in an emotional way. The judge then continued:-

“But the overriding consideration I must take into account is the seriousness of what you did. “

8. The appellant takes issue with this last observation. On behalf of the appellant it has been submitted that the sentence imposed

was unduly and disproportionally severe, and that is so having regard in particular to the personal circumstances of the appellant and

the effects of the conviction on him including the inevitable consequences of a significant period of imprisonment as well as the fact

of being registered as a sex offender.

9. The approach taken by the judge in the Circuit Court to the sentencing process is criticised. In particular issue is taken with the

sentence “now the sexual assaults is described in themselves are not the most serious sexual assaults, but what is incredibly serious

is the number of times you assaulted your sister”. It says that that sentence reveals and contains an error in principle.

10. This Court has said again and again, that sex crimes against children are always serious. In this case there are factors present

which aggravate the seriousness. The relationship of older brother and younger sister, the duration of the abuse spanning as it did

such a significant par of the injured party’s childhood and the frequency of the acts of abuse to mention some, but not all of those

factors.

11. While there were undoubtedly factors that were present in the case, that were in favour of the accused, as the judge

acknowledged and which he specifically stated he was having regard to, it is the situation that in the absence of a plea which had it

been forthcoming would always have been regarded as highly significant, there was limited scope present for mitigation.

12. The judge’s approach of imposing a substantial sentence on one offence and taking others into consideration, while not the only

approach that was available to him, was not an impermissible one. The focus of this Court to day is on the sentence actually

imposed. That sentence was a significant one. Indeed it could fairly be described as severe and must be regarded as falling at the

upper end of the available range. However, while at the upper end of the range, in the court’s view it does not fall outside and in

those circumstances the court is unable to identify an error in principle and must dismiss the appeal.