Tipp man who raped and sexually assaulted special needs daughter has second appeal dismissed

A Tipperary man sentenced to 11 years in prison for raping and sexually assaulting his special needs daughter in their family home has had his second appeal dismissed by the Court of Appeal.

The 59-year-old man, who cannot be named to protect the identity of his now 30-year-old daughter, was convicted of five offences by a Central Criminal Court jury and sentenced in February 2020.

The court heard that the man twice raped his daughter in her bedroom when she was 22-years-old after he asked her if she loved him or her mother more. He sexually assaulted her on that same occasion.

He also sexually assaulted her and forced her to perform oral sex on him when she was aged between 13 and 14 years old.

Today at the Court of Appeal, Colman Cody SC, for the appellant, said that his client had been sentenced in the higher category for the five offences, resulting in a 12-year sentence with the final year suspended.

Mr Cody said the sentence was "excessive" and that it did not have features common to the more serious cases in the higher category for sentencing.

Mr Cody said there was no "more than usual degradation" in the offences and that there was no use of violence used beyond that associated with the offences.

Mr Cody said the sentence was "unduly severe" and that there were not multiple victims as would be "more typical" the profile of offending common to the more serious category.

Fiona Murphy SC, for the State, said that some of the offences happened in the family home and one sexual assault offence took place when a childhood friend was in the bed with the victim.

She said that there had been coercive efforts made in the case for the victim to withdraw the charges. Ms Murphy said the sentence was a correct one and one "carefully constructed" by the sentencing judge.

In giving the court's judgement today, Ms Justice Isobel Kennedy said the court was dismissing the appeal and said the woman should have been protected in her own home but was abused. She noted as an aggravating factor the victim's "acute intellectual disability" and the heightened betrayal of trust committed by her father.

Ms Justice Kennedy said that while the sentencing judge elected a headline sentence on the "outer" scale of 14 years it was still within her "discretion to do so".

She said that the male had already received a "very generous deduction" in his sentence and dismissed the appeal.

In her victim impact statement, the woman said she felt “weird, upset and angry all the time”.  

“I used to feel safe in my home but then I didn't feel safe anymore,” she said, adding that the rapes affected her emotionally and physically and that she felt anxious, depressed and suicidal.  

“I had nobody to talk to. I felt so alone growing up. I was too afraid and couldn't talk to anyone. I always had to lie and say I was fine. It made me angry that nobody saw what he was doing to me,” she said.  

Following her complaint to gardaí, the HSE instigated an investigation but the woman told a psychologist during this process that she had made up the allegations because she was cross with her father after he had taken her phone away.

The woman told the jury during the trial that she had said this to the psychologist because her father told her to say it and she was concerned her younger siblings would be taken away because of the rape claims.

It is the man's second failed appeal in relation to his case. Last July, he appealed the conviction on the grounds the jury were not properly warned about the dangers of using uncorroborated evidence to convict a defendant.

His lawyers argued that trial judge Ms Justice Eileen Creedon had failed to give a corroboration warning to the jury regarding evidence given by the complainant’s mother, who said that the defendant had admitted sexually assaulting their daughter.  

A corroboration warning can be given by a judge to a jury to highlight the dangers of convicting a defendant on the basis of uncorroborated evidence. 

Ms Justice Creedon noted that the man claimed his daughter's motivation to make up false allegations was “revenge and jealousy”.

In dismissing the man's appeal against his conviction, Ms Justice Kennedy – sitting with Court President Mr Justice George Birmingham and Mr Justice Patrick McCarthy – said the trial transcript showed “that the judge did not direct the jury that the evidence was in fact corroborative, simply that it had the potential to be so”.

“We are not all persuaded that the judge erred in finding that the evidence was potentially corroborative or that the charge was inadequate in how she approached the evidence of [the complainant’s mother],” Ms Justice Kennedy added.

The man had initially pleaded not guilty to 32 counts of various sexual offences. Following legal submissions during the trial the judge directed the jury to find the man not guilty on 17 counts. The jury acquitted him on a further ten counts following deliberations.

He was convicted on five charges, including rape, oral rape and sexual assaults on dates between January 2003 and December 2004 and on a separate occasion in January 2011. He had denied all charges.

Sentencing judge Ms Justice Creedon said the man “steadfastly” denied the allegations and the fact that he has not accepted the jury's verdict means that he has never acknowledged the hurt he caused his daughter.

The sentencing judge said the man could not benefit from mitigation that may have been afforded to him had he accepted the jury's verdict. She said a probation report said he was not interested in addressing his sexual offending.