Elderly child molester jailed following sentence appeal
A 66-year-old man spared jail for sexually assaulting his niece who lived next door, has been sent to jail following an appeal by prosecutors.
The man, who cannot be identified for legal reasons, had pleaded guilty to three counts of sexual assault committed against his niece when she was aged five, six and eight on three occasions between 2003 and 2006.
He was given a wholly suspended five year sentence at Clonmel Circuit Criminal Court by Judge Thomas Teehan on December 17, 2015.
The Director of Public Prosecutions successfully sought a review of the man's sentence today, through her counsel, David Humphries BL, and he was accordingly resentenced to five years imprisonment with the final four years suspended.
Giving judgment, Mr Justice George Birmingham said the assaults were carried out on the niece of the man's wife whose family lived next door.
The offences involved rubbing the victim's private parts inside her underwear when she was five years old in the first incident to forced masturbation in the second incident when she was six years old. The third incident, when the victim was eight years old, involved digital penetration.
Mr Justice Birmingham said the injured party had made a “powerful” victim impact report which he recited. It gave a real indication of how the abuse had affected not just her, but how it sundered the family, the judge said.
'My head has been fried constantly thinking about what happened and worrying if it could happen to others,' she had stated.
'I was so scared to tell my parents as I thought they had enough on their plates. They day they found out I felt a weight off my shoulders but they felt a weight on theirs for not protecting me.'
'He had been a normal person in front of them but a weirdo to me,' she had stated.
'The one thing I hate every day is the fact that he is next door. I see him pass my house every morning and evening and it makes me feel sick.'
'Her daughter started sending me text messages blaming me for her mother's cancer,' she had stated.
'It's always playing on my mind over and over, first thing in the morning and last thing at night.'
'I will not let some ignorant coward keep me down,' the victim had stated.
Mr Justice Birmingham said the man was a father who had been married 22 years.
The man's wife, who had been diagnosed with cancer, asked to give evidence in the Circuit Court that he was a kind man who had looked after her so well.
She had asked the sentencing judge to give him a suspended sentence out of the kindness of his heart because he was her only carer.
Mr Justice Birmingham said the court recognised the substantial mitigating factors present. These were his early plea, his background, the fact that he had been a good provider and devoted carer, his poor health, remorse and the anguish he was experiencing.
He made admissions to gardaí and followed these up with signed pleas of guilty in the District Court which was welcome, the judge said, and deserving of particular credit.
The court observed that early admissions were always very welcome but their value was diluted somewhat by the fact that members of the man's family weren't told that there had been admissions followed up by signed pleas of guilty.
Had the man's family been told, they would have realised his victim's complaints were valid, the judge said.
Substantial as the mitigating factors were, the Court of Appeal was of the view that it was a case where custody could not be avoided. This was serious abuse over a prolonged period culminating in digital penetration directed at a very young child, Mr Justice Birmingham said.
While there was scope for suspending a significant part of the sentence, a custodial element was required.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said two years would have been appropriate in the Circuit Court but the court was required to sentence as of today's date.
The court was conscious that having to face a sentence review must be particularly stressful. It was necessary to state that the man had not just been somebody without previous convictions but somebody who had made a positive contribution to society as a dedicated carer.
He recited the sentencing principle that where a court is dealing with a person with previous good character, it was often the fact of the sentence rather than the duration that was the principle affect.
The man was resentenced to five years imprisonment with the final four years suspended.
The court was told that he still lives next to the inured party. He had put the house on the market, a purchaser had been found but there were difficulties with the title.
He was required to enter into a good behaviour bond and to not be in the sole custody of any person under the age of 18 for the suspended period. He undertook to be so bound before being lead away to begin serving his sentence.