Court of Appeal: Man given 8 year custodial sentence for abusing nephews has appeal dismissed

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court, Mr Justice Mahon said that the abuse suffered by the man’s victims was associated with particular degradation, and had long-term negative effects on their lives – as such, even taking into consideration the mitigating factors associated with the case, the punishment fitted the crime and there was no error of principle with which the Court would intervene.

Background

In Dublin Circuit Criminal Court in 2017, the appellant, JM, was convicted of having sexually abusing his nephews throughout the early 80’s, when his victims were between 8 and 12. Justice Mahon emphasised that some of the acts committed against the victims were “associated with particular degradation”.

JM, now aged 64, pleaded guilty at an early stage. Prior to sentencing, the victims provided powerful impact statements outlining the effects of the abuse, describing how they had been treated like animals and robbed of their childhood; leading to lives of distrust, crime, anger, drugs, alcohol, depression, and loneliness.

Having been convicted of 6 counts of indecent assault, JM was sentenced to a consecutive total of 9 years imprisonment, with the final 12 months suspended on conditions.

Grounds of Appeal

In the Court of Appeal, JM contended that the sentencing was excessive, and that the judge erred in law in:

Aggravating and mitigating factors

Considering JM’s grounds of appeal, Justice Mahon set out the aggravating and mitigating factors as considered by the sentencing judge. The sentencing judge stated that the aggravating factors included the very serious nature of the trial, the long period of offending, the violence and physical pain, psychological and emotional pain, and the vulnerability and age of the victims. Justice Mahon emphasised that JM was in a position of authority being the uncle of his victims, and said that the Court took into account that the victims were groomed for planned and pre-meditated offences.

The mitigating factors were his early guilty plea and admissions to Gardaí, that he had no previous convictions, had not come to the attention of the Gardaí since, had shown remorse, had a good employment record, and the antiquity of the offences.

Justice Mahon was satisfied that the sentencing judgment was considered and comprehensive, and therefore there was no question in the instant case of a significant departure from best practice which would warrant the Court’s intervention (DPP v Reilly IECA 43 considered). As such, Justice Mahon rejected the contention that the sentencing judge had erred in her approach to sentencing in that he failed to identify a headline sentencing before reducing that term in recognition of the relevant mitigating factors.

Justice Mahon said that the appellant’s criticism was not without justification, but said that it was ultimately the final sentence imposed which should determine whether an appeal court should intervene.

Punishment should fit the crime

Justice Mahon accepted that consecutive sentencing was “the exception rather than the rule”, but emphasised that it was within the discretion of the sentencing judge. Justice Mahon said that consecutive sentences were not uncommon in sexual abuse cases with multiple victims, and when the sentencing ranges were low. Justice Mahon said that the present case, both of these features were present.

Accepting that the relatively lengthy prison sentence would be difficult for a 64-year-old man without any previous convictions, Justice Mahon emphasised that the offending was particularly serious, and that some of it was “especially reprehensible and shocking”.

The very detrimental and long term consequences for the victims placed the offending at a high level, and Justice Mahon said that it was important “that the punishment should fit the crime”.

Finding that the case lay within the region of 6 and 9 years, Justice Mahon said that the court would not intervene as it did not represent an error of principle.