Man serves just three days in jail for indecently assaulting his niece
A Dublin man who spent three days in jail for indecently assaulting his niece 36 years earlier, has had a two year sentence suspended following a successful appeal.
The 58-year-old, who cannot be identified for legal reasons, had pleaded guilty at Dublin Circuit Criminal Court to four counts of indecently assaulting his 11-year-old girl niece in 1977.
He was sentenced to two years imprisonment with the final 12 months suspended by Judge Patricia Ryan on July 29 2013. On July 31, 2013, he was granted bail pending an appeal.
The man successfully appealed his sentence today on a combination of factors including time lapse, his youth at the time and the manner in which he responded to the allegations. Accordingly, the Court of Appeal left unchanged his two year sentence but suspended it.
Giving judgment, Mr Justice George Birmingham said the man was the injured party's uncle and the offending occurred in her grandparent's home, his family home, when she was 10 going on 11 and he was 17 going on 18.
The injured party was close to her grandparents and would stay over from time to time, Mr Justice Birmingham said.
He would make his way into the bedroom where she was sleeping, get under the covers and would have her hold his erect penis. It's not clear, the judge said, whether there was actual masturbation.
She was told that if she told her parents they wouldn't believe her, the judge said.
They did believe her “immediately and unequivocally” when she told them some years later, he said.
Sometime between 1991 and 1993, the complainant reported to the gardaí what had occurred but the contact stopped short of a formal complaint, the judge said.
Then, in 2000, she confronted her uncle in a public park. He accepted his wrongdoing and apologised, making it clear that he would “never deny the abuse”, Mr Justice Birmingham said.
As she was leaving that meeting with him, she said 'keep looking over your shoulder this might not be the end of the matter'.
Some 12 years later and 35 years after the abuse had occurred, she made a formal complaint to the gardaí.
The gardaí made contact with the man and he attended by arrangement a local garda station where he made full admissions and followed this up with an early plea of guilty.
Mr Justice Birmingham said this was “clearly a difficult case” for the sentencing judge and “this court too finds it difficult”.
The offending was “very serious” involving the targeting of a young girl of 10 or 11 years of age and her abuser was a relative. She was profoundly affected by the abuse and that impact has continued, the judge said.
On the other hand there were significant mitigating factors present. The fact the offending was committed by a juvenile, as he was then 17 going on 18, distinguished this case from those were the offender was a mature adult, Mr Justice Birmingham said.
It occurred in 1977 and the period that had elapsed “has to be a highly relevant consideration”.
Nothing that he can do will undo what he did, Mr Justice Birmingham said, but the manner in which he has responded was “very much to his credit”.
In 2000 he made admissions, offered an apology and expressed remorse. He went on to tell his wife and each of his children when they reached maturity. He went to a garda station and made full admissions.
Mr Justice Birmingham said the combination of all the factors meant the case should have been disposed of without the imposition of a custodial sentence.
Most specifically was the fact that he had been young and immature and the court was sentencing a 56 year-old man in respect of his actions as a 17, 18-year-old, Mr Justice Birmingham said.
Furthermore, “this has hung over his head” between 2000 and 2012 and was taken seriously by him as evidenced by his disclosures to his wife and child.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would leave unchanged the two year sentence “but will proceed to suspend it”.
The man was told that his conviction carried implications with respect to the sex offenders register and failure to comply with certain obligations would mean he would be committing a further offence and may be brought back to court.
He was required to enter into his own bond of €100 to keep the peace and be of good behaviour for two years.