Limerick man who abused cousin at family home fails in bid to have prison sentence reduced

A LIMERICK man convicted of sexually assaulting his 10-year-old cousin over a two year period while their mothers thought they were in his bedroom playing Xbox has failed in a bid to have his four-year jail sentence reduced.

The now 33-year-old man had pleaded guilty to four counts of sexual assault on dates unknown between January 1, 2010 and December 31, 2011 when he was aged between 19 and 21.

The male victim in the case was aged between 10 and 11.

The appellant was sentenced to four and a half years' imprisonment with the final six months suspended in November 2022 by Judge Catherine Staines at Limerick Circuit Court on count number one, with the other three counts taken into consideration.

The man had appealed his conviction, arguing that the headline sentence of six years was too severe and that the sentencing judge had not given enough credit to the mitigating factors in the case.

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At the Court of Appeal, Mr Justice Seamus Woulfe, in dismissing the appeal, said the three-judge court found there was no error in principle and that the headline sentence was within the range available to the judge. He said the court was also satisfied that the sentencing judge took all of the mitigating factors into account.

The court heard that each of the offences occurred at the family home of the appellant when the victim was in his bedroom while their mothers, who were sisters, socialised in another room believing that the cousins were in the bedroom playing Xbox.

Garda Denis McCarthy told the sentencing hearing the victim said the man would sit him down on the bed and would use a coaxing voice asking the boy if he could warm up his penis with his hand by rubbing it up and down and squeezing it. He would then place the boy’s hand inside his pants and onto his penis.

The victim said that this would go on for about three or four minutes before he would stop and go into the kitchen. He estimated that these incidents occurred four times.

Jack Nicholas BL, for the appellant, said it was his submission that the headline sentence set by the judge was too high. He said the sentencing judge had placed the offending at the lower end of the mid-range and when compared to other cases which have come before the courts, the offending in those matters “appears to be worse”.

He said the court also did not take enough account of the mitigating factors in this case, the principle one being the plea of guilty which was entered about a month before the trial date. He said the man had written a letter of apology to the victim and “continues to emphasise his apology to the boy”.

Mr Nicholas submitted that the offending before the court was in the lower range of gravity and that offences at the upper end of the scale are often accompanied by a level of violence or aggression which are not present in this matter.

He also contended that the sentencing judge failed to give due weight to the long interval that had elapsed between the time the offending behaviour occurred and the time of sentence and the fact that in the interim the man had led a law-abiding life.

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Keith Branagan BL, for the State, said the sentencing judge was “perfectly accurate” in placing the matter at the lower mid-range when all factors were taken into consideration including the victim’s youth at the time, the fact that the abuse was perpetrated by a family member and that it had occurred over a period of two years.

In relation to the argument that insufficient weight was given to the mitigating factors, Mr Branagan said the judge had explicitly referenced the relevant factors in this case. He said after the headline had been set she then proceeded to give a discount of 25%. The highest discount that can be given is 33%.

He said the plea of guilty was the most significant factor and said the judge was right to give a 25% discount in this case because a time period of approximately one year had elapsed before the guilty plea was entered. He said the court did give consideration to factors such as rehabilitation and proportionality and said ultimately, the discount given was appropriate.

Mr Justice Woulfe, sitting with Ms Justice Úna Ní Raifeartaigh and Mr Justice Michael MacGrath, said the court was of the view that there was no error in principle by the judge in nominating a headline sentence of six years.

He said the offence involved a serious breach of trust in circumstances where the victim was only 10 years old at the time.