A youth who orally raped his cousin when he was 13 and she was seven has lost an appeal against the severity of his one-year detention.
The Court of Appeal commented that it was "unfortunate" that the youth, having turned 18 shortly after he was sentenced last February, will be moved to an adult prison to serve a short portion of his sentence.
However, the court found that the one-year sentence imposed was the "irreducible minimum" the sentencing judge could have imposed and to further reduce it to prevent the transfer to an adult prison would not have been a legitimate exercise of the judge's discretion.
The youth's lawyers had raised a concern that the defendant would be housed in the sex-offenders wing of an adult prison when he is transferred.
Delivering the judgment of the three-judge court on Thursday, Mr Justice John Edwards said: "Where a sentence is to be served is a matter for the executive. The judge's function was to impose the appropriate sentence for the crime as committed by the particular offender."
Mr Justice Edwards said he is satisfied that the judge "properly and faithfully" carried out her role and could not be legitimately criticised "notwithstanding that as a consequence of her order the appellant may well have to spend 31 days in an adult prison before being released".
The offending came to light in 2019 when the then seven-year-old girl told her mother what had happened and later detailed the assaults to a specialist garda interviewer.
The boy was charged and pleaded guilty to four counts of sexual assault contrary to the Criminal Law (Rape) Act 1990 on unknown dates between October 1st and December 31st, 2018.
He denied one count of oral rape contrary to section 4 of the Act but a jury convicted him of that charge following a two-day trial at the Central Criminal Court in October last year.
Besides the charge of oral rape, the offences included the digital penetration of the girl's vagina on four occasions.
'Defective' sentencing
At a previous bail hearing in the Court of Appeal the boy's barrister, Lorcan Staines SC, argued that existing legislation regarding the sentencing of children was "defective".
Mr Staines said the trial judge, Ms Justice Karen O'Connor, had "insufficient tools" at her disposal to avoid an immediate custodial sentence for the boy once he was found guilty.
Counsel submitted that the judge had no provision for deferring, partially suspending, or fully suspending a period of detention when it came to cases involving minors convicted of serious crimes.
In April, the Government introduced the Criminal Justice (Juvenile Offenders) Bill to allow judges to impose suspended sentences on juveniles.
At Thursday's hearing, the court rejected seven grounds of appeal, including one on the basis that the trial judge had erred in finding that an immediate custodial sentence was required because she did not have the power to suspend or part-suspend the sentence.
Mr Justice Edwards said that there was no error in finding that a custodial sentence was required. The offences were "very serious", he said, involving oral rape and multiple penetrative sexual assaults.
There was evidence that the defendant took steps to ensure what he was doing remained a secret, including by putting a chair against a door to prevent anyone entering while the abuse took place.
The victim said her cousin also warned her that if she told anyone, he would lie about it. Mr Justice Edwards said this was an example of "coercive pressure" by the defendant, and his actions showed that he understood that what he was doing was wrong.
While his immaturity reduced his culpability, Mr Justice Edwards found that the threshold for a custodial sentence was "unquestionably exceeded".
Mr Justice Edwards also found that the trial judge had correctly identified an eight-year headline sentence as being appropriate on the rape count for an adult who had committed the same crime.
As this offender was 13 at the time, the judge took into account his immaturity and reduced the headline to four years. Having further considered mitigating factors, Ms Justice O'Connor reduced the sentence to one year.
Mr Justice Edwards said the judge had gone to "the absolute limits in our view of her legitimate discretion in showing leniency".
Dismissing all grounds of appeal, the judge said Ms Justice O'Connor had approached the matter of sentencing "with scrupulous care and the appropriate level of awareness and sensitivity to the appellant's youth and immaturity at the time of committing these very serious and violatory offences while at the same time recognising the effects on the victim and the significant impact the appellant's offending has had on her".
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.
