The fully suspended sentence handed down to a 40-year-old man who cut off an au pair’s underwear and sexually assaulted her while she slept was too lenient, the Court of Appeal (CoA) found on Tuesday as it sent him to jail for two and a half years.
Brian Haig (40), of Roscrea, Co Tipperary, pleaded guilty to a single count of sexual assault at an address in the county on March 10th, 2019.
Judge Cormac Quinn imposed an 18-month suspended sentence at Tipperary Circuit Court on January 12th, 2023.
However, the three-judge Court of Appeal on Tuesday quashed the original sentence after the Director of Public Prosecutions (DPP) argued that the headline sentence of two and a half years set by the judge was too low.
Dermot Collins SC, for the DPP, told the three-judge court that the “starkest aggravating factor” in the case was the fact that the woman’s clothing had been cut and removed while she was asleep before she woke to find Haig naked on top of her.
After hearing submissions in the case, the court rose for a short period before they returned and quashed the original sentence. The court re-sentenced Haig to three and a half years in prison with the final 12 months suspended.
The facts of the case were outlined in submission documents provided to the court on Tuesday.
The DPP submission noted that the victim was an au pair in her 20s, visiting Ireland to mind children for local families.
The injured party had been out socialising in local pubs and had met Haig and his partner during the course of the night before.
The three visited several pubs where they all consumed alcohol before returning to the house Haig shared with his partner, where further alcohol was consumed.
The woman was invited to stay in the house for the night and was provided with a blanket and pillow to facilitate her sleeping on the couch.
Detective Garda Oliver Hennelly told Haig’s sentencing hearing that the woman fell asleep and woke at 6am to find Haig, fully naked, lying on top of her. Her clothing had been removed, the court heard.
She screamed at him to stop and went to dress before fleeing the house. While attempting to get dressed, she discovered that her underwear and tights had been cut off her by Haig.
Subsequent forensic analysis confirmed the victim’s clothing had been cut with a sharp blade, possibly a knife or scissors.
Haig was arrested and, during the course of interviews, initially indicated his belief was that he had performed consensual oral sex on the injured party.
This was completely at odds with the evidence of the injured party, who said that she was asleep at all times until she woke naked to find Haig on top of her, Det Gda Hennelly said.
Haig subsequently pleaded guilty to one count of sexual assault.
Sentencing Judge Cormac Quinn nominated a headline sentence of two and a half years, which he reduced to 18 months. Thereafter, he fully suspended the sentence for a period of two years.
Unduly lenient
The DPP appealed the sentence, arguing that it was unduly lenient in all the circumstances of the case.
Mr Collins, for the State, said the sentencing judge had erred in principle in nominating a headline sentence of two and a half years, given the aggravating factors in the case.
He submitted that the offending in this case came within the middle range and not the lowest range for a sexual assault offence.
He said the sentencing judge had failed to have regard for the aggravating factors in the case, including the fact that the offence was perpetrated while the victim was asleep, that the woman was a guest of Haig and his partner and that a knife or other object was used to cut off her clothing and underwear so as to gain access to her private parts.
He said what happened was a “serious sexual assault”, there had been no consent and this had been a “deep breach of trust”.
There was “double mitigation” given in terms of the full suspension of the sentence imposed, counsel said, adding the custody threshold “ought to have been crossed” but wasn’t.
Kenneth Kearns SC, for the appellant, said Haig’s plea of guilty was of significance in the case.
He said the respondent had penned a letter of apology to the injured which had been read into the record. Counsel noted a Probation Report was available to the sentencing judge which showed Haig had “a very difficult background”.
“It may be considered charitable to say that a two and half year sentence is a significant departure, but I would respectfully submit that it isn’t,” he added.
In delivering the judgement of the three-judge court on Tuesday afternoon, Ms Justice Isobel Kennedy, sitting with Mr Justice Patrick McCarthy and Mr Justice George Birmingham, said the court’s view was that the sentence imposed was unduly lenient.
She said the court was satisfied that the offending fell within the mid-range in terms of gravity, with the most significant factor the cutting of the undergarments while the woman was asleep.
She said it was the court’s view that this showed “an element of premeditation”. She said the fact that the injured party was asleep at the time “elevates the gravity of the offence”.
The court proceeded to quash the original sentence and set a fresh headline sentence of five years.
Reducing this to three and a half years after taking mitigation into consideration, Ms Justice Kennedy said the court would suspend the final 12 months for a period of two 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.
