Man who engaged in a sexual act with a child under the age of 17 loses appeal
A Tipperary man jailed for having sex with a 13-year-old babysitter when he was 15 has lost an appeal against his three-and-a-half year prison sentence.
The 21-year-old Tipperary man, who cannot be named for legal reasons, pleaded guilty at Clonmel Circuit Criminal Court to engaging in a sexual act with a child under the age of 17 on March 28 2009.
He was sentenced to three-and-a-half years imprisonment by judge Seán Ó Donnabháin on June 12 2013.
Dismissing the man's appeal against sentence today, Mr Justice George Birmingham said the victim had been babysitting at a location in Tipperary on the date in question when a number of youths entered the premises.
She attempted to remove them without success, the judge said. Two youths, including the appelant, had gone upstairs and the girl followed them.
Upstairs the two youths proceeded to sexually assault her. They removed her tracksuit bottoms and underwear and proceeded to have sexual intercourse, he said.
The co-accused produced a knife and threatened her telling her she would be killed. He had also produced a knife before the sexual activity took place, the judge said. It was accepted by gardaí that the co-accused was the prime instigator.
By any standard this was a very serious case, Mr Justice Birmingham said.
The two accused must count themselves very fortunate that the case was not tried in the Central Criminal Court. If they were a full age, he said, they could have expected to receive a sentence possibly in double figures.
The appeal was focused on the disparity between the sentences imposed on the appelant and his co-accused.
Mr Justice Birmingham said it was “striking” that no part of of the appelant's sentence was suspended while the sentence imposed on his co-accused was entirely suspended.
However, their post 2009 behaviour went a very long way to explain the difference in approach to sentences which were imposed by different judges four-and-a-half years after the offence.
The co accused had not reoffended over a lengthy period but the appelant had, Mr Justice Birmingham said. He had 31 previous convictions at the time of sentencing.
Although the co-accused's treatment may seem excessively lenient, that did not provide a basis for an intervention by the Court of Appeal, he said.
Mr Justice Birmingham said the judge had not erred in imposing the sentence that he did for this crime and on this offender.
In those circumstances, Mr Justice Birmingham, who sat with Mr Justice John Edwards and Mr Justice Alan Mahon, dismissed the appeal