Court of Appeal dismisses challenge to sentence brought by man convicted of abusing his younger sister

About this case:

• Judgment:
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Delivering the judgment, Mr Justice Edwards rejected the argument that the man was remorseful, given that he withheld admitting his guilt until after the jury convicted him – thereby causing his victim further harm in the course of the trial.

In all the circumstances, the three-judge Court was unanimous in finding that the imposition of the maximum sentence adequately reflected the seriousness of the crimes committed,

Background

In 2014, Mr Damien Kiely was convicted by a jury of 23 counts of sexual assault against his younger sister, which began when he was 14 and she was 10, and continued until he was 20 years old. Before the Court of Appeal, Mr Kiely (39) appealed against the severity of his sentence of five years’ imprisonment (with the last year suspended).

In a “powerful and moving victim impact statement”, Mr Kiely’s victim described to the sentencing court the effect Mr Kiely’s assaults had had on her; stating, inter alia, that “while growing up and trying to make sense of what was happening she lost track and sense of how real life was supposed to be like. Amongst other things her confidence and self-assurance was damaged. She felt ugly outside and inside. She had had no sex education, and when she made her disclosures she did not receive the support from her parents and other family members to which she was entitled”.

Grounds of Appeal

Counsel for Mr Kiely pleaded that the sentence was disproportionate and excessive and too severe in all the circumstances of the case:

In response, counsel for the DPP submitted that in so far as reliance was being placed on remorse –the procedural history of the proceedings tended to suggest that Mr Kiely’s apology and indications of remorse were not sincere.

Accordingly, it was submitted that the sentence was appropriately structured and was proportionate and appropriate in the circumstances of the case.

Analysis

Mr Justice Edwards stated that there could “be little doubt but that the sentence imposed by the sentencing judge was a severe one” – but that it within the range of the sentencing judge’s legitimate margin of discretion.

To succeed in challenging the sentence, Mr Kiely would have to “demonstrate the existence of a clear error of principle on the part of the sentencing judge” – e.g. prove that the sentence was outside of the trial judge’s margin of discretion.

Mr Justice Edwards was satisfied that the sentencing judge approached the sentencing process in the correct way – and that in the first instance, he had regard to the range of available penalties, which ranged from non-custodial options up to five years imprisonment.

In assessing the seriousness of the offending conduct, the Court must refer to “culpability and harm done” – in the circumstances of the case, Mr Justice Edwards was in agreement with the sentencing judge that “the offences committed were indeed serious” and that moreover, “there were a great many of them, ranging over a six year time span”.

Considering the specific complaint that the headline sentence was too high because the majority of the offences were committed when Mr Kiely was himself a minor, Justice Edwards stated that the Court rejected this, adding that “the offending began at age fourteen and straddled his majority continuing until he was aged twenty”.

Furthermore, “there was no evidence, e.g. from a psychologist, to suggest that by reason of immaturity, or any other of his personal circumstances, Mr Kiely would not have fully appreciated the inappropriateness of what he was doing or the harm that he was doing”.

Considering mitigation, the sentencing judge commented that “the most fruitful source of mitigation is an early plea of guilty coupled with genuine remorse”. Mr Kiely had contested his guilt and only admitted wrongdoing after forcing his victim to experience the trauma of a trial. Taking this into consideration, Justice Edwards stated that Mr Kiely’s remorse was questionable.

It was true that Mr Kiely was also entitled to have his previous good character taken into account, as well as his strong work record and relative youth. However

Justice Edwards was satisfied that the trial judge expressly took Mr Kiely’s previous good character, strong work record, and relative youth into account in suspending the final year of the sentence – which represented an effective discount of 20 per cent for mitigation.

In the circumstances, the three-judge Court was unanimous in finding no error in principle on the part of the sentencing judge, and therefore dismissed Mr Kiely’s appeal.