Court of Appeal quashes sentence for indecent assault on child and imposes new custodial term.

THE COURT OF APPEAL

Appeal No. 168/14

Birmingham J.

Sheehan J.

Mahon J.

The Director of Public Prosecutions

Respondent

- and -

Thomas Mooney

Appellant

Judgment (ex tempore) of the Court delivered on 17th December 2015 by Mr. Justice Mahon

Introduction

1. This is an appeal against severity of sentence, the appeal against conviction having previously been determined by this Court in its

judgment delivered on 16th July 2015.

2. The appellant was convicted in the Dublin Circuit Criminal Court on 2nd July 2014 of eight counts of indecent assault contrary to

Common Law following a five day trial. The appellant was sentenced on 25th July 2014 to concurrent four year sentences in respect

of three of the indecent assault counts (counts 1, 4 and 8) with the final two years thereof suspended, on conditions. The

convictions on the remaining counts (being counts 2, 3, 5, 6 and 7) were taken into consideration. The appellant was also placed on

the Sex Offenders Register in relation to counts 1, 4 and 8.

3. The victim of all these offences was, at the time they were committed, a child aged about fourteen years. His date of birth is 15th

November 1971. The offences took place on dates between 1st July 1983 and 30th June 1985 at 33, Gardiner Street, Dublin, which

was the appellant’s home. At the time the appellant occupied a basement flat at that address. The appellant is now seventy three

years old; he was in his late forties at the time the offences were committed. The indecent assaults took place in circumstances

where the victim was persuaded to go to the appellant’s flat and there perform sexual acts, including oral sex, in return for payment.

The activity ceased when the young victim was brought before the district court and sent to an industrial school in November 1985,

because of truancy from school. The victim initially made a complaint to the gardaí in 1998, as he also did in relation to other men

who had sexually abused him around the same time. Many of the allegations against the other men concerned sexual abuse having

taken place in the appellant’s corporation flat.

4. When first approached by the gardaí in 2010, in relation to the victim’s allegations, the appellant immediately acknowledged his

sexual abuse of the victim and expressed his immediate desire to clear up the matter. The appellant was first charged with these

offences in 2012, some two years after being first interviewed by the gardaí, and some four years after the victim’s first complaints

were made to the gardaí, and approximately twenty six years after the sexual assaults had taken place.

5. The appellant’s own background is one of dysfunction and difficulty. He is not just seventy four years old, and was in his late

forties, or early fifties, at the time of the commission of the offences. He himself had been abused as a child in much the same

circumstances as pertained in this case. He is a bachelor and has led what could be said to be a lonely and solitary life. He worked all

his life until retirement. He is a person of limited intellectual capacity, and has not previous convictions.

6. The victim himself was damaged by the appellant’s sexual assaults, and understandably so. The victim fairly accepts that he was

sexually abused by other men besides the appellant, and that therefore he cannot blame all his ills arising from such abusive behaviour

on the appellant.

7. In her sentencing judgement, the learned sentencing judge comprehensively identified the various mitigating factors in the case.

She placed the abuse “in the middle range and on the lower end of the middle range”, and this court entirely agrees with this

assessment.

8. The sentence imposed by the learned sentencing judge is, in effect, one of two years in custody. The appellant was released on

bail some seven days or so after commencing his sentence, pending the outcome of this appeal. It has since the Circuit Court

sentence was imposed transpired that the maximum sentence for those offences at the time of this conviction was two years, and

not ten years as understood by the learned sentencing judge, and indeed everyone else concerned with the case. On that basis, an

error of principle has obviously been established, and it is necessary now for the Court to sentence the appellant anew.

9. While the maximum sentence for this offence is in fact two years, and while the Court cannot clearly exceed that term in relation

to any individual count it is nonetheless open to it to impose consecutive sentences with the net result being approximately similar to

the sentence of the court below. Such an approach could not be said to be unreasonable having regard to the serious nature of the

offences, and the negative impact they have had on the victim.

10. In approaching the sentencing process afresh, as this Court must now do, it is necessary to consider not only the offences and

their undoubted seriousness, and their impact on the victim, but also the particular circumstances of the appellant as they now are.

As was stated by Walsh J. in People (Attorney General) v. O’Driscoll [1972] 1 FREWEN 351, (at p. 359) and approved by the Supreme

Court in People (DPP) v. M [1994] 2ILRM 541, (at p. 547/8):-

“It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the

particular circumstances of that case – not only in regard to the particular crime but in regard to the particular

criminal.”

11. It is clearly evident that the appellant’s health has deteriorated beyond that which might have been reasonably expected simply

by reference to his age. His personal circumstances could be said to be difficult and likely to become more difficult in the short to

medium term, and accordingly any further period spent in custody will not be easy for him.

12. Nonetheless, sex offending involving, in particular, children, almost always requires to be marked by a custodial sentence. It is not

necessarily the duration in custody that matters, but the fact that the offender serves some time in prison that matters. In the case

of DPP v. Doherty [Unreported CCA 29th April 2001], Hardiman J. said:-

“In dealing with a person without previous convictions and indeed of positive previous good character, if the court

considers as we do, that a custodial sentence is required in the public interest, such a sentence need not be unduly

prolonged because it is the fact of the sentence rather than its duration which has the principal effect.”

13. This Court takes the view in this case that it is appropriate that the appellant should serve some additional time in prison over and

above the short time already served. It does not believe this additional period need be lengthy because of the appellant’s age and

deterioration in his health and in his personal circumstances. The Court has noted that arrangements have been put in place to

safeguard the tenancy of the appellant’s home in the short term, in the event that he is returned to prison.

14. The sentence of the Court therefore will be, in substitution for the sentence imposed in the Circuit Criminal Court, fourteen

months concurrent on each count with the final eleven months suspended. The appellant is entitled to credit for the time already

spent in custody.