A man whose 18-month jail sentence for the repeated rape of his highly vulnerable foster brother and the sexual assault of another foster sibling was found to be too lenient will not be returned to prison, after the Court of Appeal found it would be "unjust" to do so.
In a judgement delivered on Monday by Ms Justice Tara Burns, the three-judge court said returning the man to prison following his release last December would be “an additional punishment”.
The 43-year-old man was jailed for 18 months after a trial at the Central Criminal Court, where he contested four counts of oral rape and 12 sexual assaults of the two boys on dates between May 1995 and December 1998.
The man, who was aged between 15 and 18 at the time of the offending, was convicted by a jury of four counts of oral rape and seven counts of sexual assault of one victim, who was then aged between 11 and 14.
He was also convicted of four sexual assaults of the victim’s older brother, who was aged between 12 and 13, on dates in 1995 and 1996.
The man had pleaded not guilty to all charges but accepted the verdict of a jury who found him guilty on all counts bar one sexual assault over which they disagreed.
Unduly lenient
The Court of Appeal quashed the original sentence for oral rape against the younger of the two boys and re-sentenced the man to four years for the same offences, suspending the remainder of the time to be served for a period of two-and-a-half years.
The judges noted the man has undertaken courses since his release from prison and is attempting to regain employment. Ms Justice Burns said six months have elapsed since his release from prison, and he is in the process of “attempting to reintegrate into society”.
“While the court is of the view that the original sentence was unduly lenient, it is also of the view that it would be unjust to return the respondent to prison at this stage,” she said.
The trial judge, Ms Justice Deirdre Murphy, had set the headline sentences at four years for the rapes and 18 months for the sexual assaults.
She then imposed a term of 18 months imprisonment on seven counts of sexual assault of the younger brother, four years imprisonment for four offences of oral rape against the same boy and 18 months imprisonment on four further counts of sexual assault against the first boy’s older brother.
All sentences were ordered to run concurrently with the final two years and six months of the term of imprisonment suspended for a period of two years and six months. The sentence was backdated to November 2021 when the man had entered custody.
Delivering judgement on Monday, Ms Justice Burns noted that the offending behaviour, particularly the oral rape offences, was of a “very serious kind” and that when it began the child was only 11, four years younger than the teenage perpetrator.
He also occupied a position of trust as an older foster brother within the family the victims had been placed with.
The three-judge court also noted that whilst he was a child at the commencement of and during a significant period of the offending, the defendant came of age and continued to offend against the younger brother for a period of nine months.
In addition, the offending behaviour came about and developed as a result of the boy being groomed by the man, the judgement said.
During the trial, the jury heard the two boys and their younger brother hand been placed in foster care with the man’s parents in 1995. The brothers were vulnerable children who had come from a difficult family background.
Truth or dare
The sexual offending against the younger of the two brothers started in the summer of 1995 when the man started playing a game of truth of dare with the boy, the “dare” being that the boy had to kiss his teenage foster brother.
Dares developed to intimate touching in future games, the court heard.
Wrestling games were also partaken in by the respondent and the younger brother which ended with kissing and mutual intimate touching. The offending behaviour progressed with the then teenager asking the young boy to perform oral sex on him.
This offending behaviour continued over a three and a half year period, ceasing when the child was removed from the foster care of the family in January 1999.
The offending against the older brother, which also involved wrestling games, began in 1995 and ceased in December 1996.
Trial judge Ms Justice Murphy said the court must sentence the man not as an adult, but as the 15- to 17-year-old who committed the offences. The judge said the fact of him being a juvenile at the time and his intellectual functioning being in the low range reduced his culpability.
In mitigation, the trial judge said the man's acknowledgement of guilt post-conviction had some weight, as “there could be no whispering” that the jury got it wrong.
The judge said the court considered there to be a further mitigating factor in the failure of the authorities to deal with the matter when a complaint was first made to the HSE by one of the victims in 2001.
She said it would have spared the victim distress which led to him feeling unable to go to gardaí until 2014.
Vulnerable
The State had argued that the sentences imposed constituted a substantial departure from the appropriate sentences and were unduly lenient, particularly in respect of the oral rape offences.
Eilis Brennan SC, for the Director of Public Prosecutions, said that an element of consent had been argued at the trial but that neither boy could have consented in law due to their young ages.
Counsel said it had been accepted by the accused that he groomed the younger brother who had been "very vulnerable and had a lot of difficulties".
Ms Brennan said the younger victim was "grappling with his sexuality in that he was the woman" and that the accused had discussed him transitioning. "There was a high level of grooming in view of this vulnerability," said Ms Brennan, who added that the victim was only 11 years old and coming into puberty.
She said the trial judge erred in not setting the pre-mitigation headline sentence between 10 and 15 years.
Counsel also said the two-and-a-half-year discount applied by the trial judge on the sentences, which were all run concurrently, was too high.
In Monday's judgement, the court said it was of the view that the headline sentence imposed by the sentencing judge on the rape offences was a “gross departure” from the appropriate headline sentence in the particular circumstances of the case.
The three-judge court said that having regard to his age and immaturity at the time of the offending whilst also acknowledging the fact that nine months of the offending behaviour occurred while the respondent was an adult, the appropriate headline sentence in this matter was one of six years.
The judges acknowledged the personal circumstances of the respondent to include his familial circumstances and his good work history as mitigating factors. They said the mitigating factors in the case merited a reduction in the headline sentence of two years.
“However, that is not the end of the matter,” Ms Burns said noting that the respondent was released from prison in December 2022. “The question that arises is should he be returned to prison after he has already served the term of imprisonment initially imposed.”
She said this was an “extremely difficult question” for the court.
The court noted it would have been “preferable” that this matter came on for hearing before the man’s release from prison and said expedited transcripts and an early hearing date should have been sought.
Ms Justice Burns said the court was of the view that it would be “an additional punishment and unjust” to return the man to prison.
Accordingly, the court imposed an 18-month term of imprisonment for the charges of sexual assault and imposed a four-year term of imprisonment for the charges of oral rape, suspending the remainder of the time to be served for a period of two and a half years.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help.
