A man who sexually assaulted a woman in her hotel room, having claimed he entered her room out of concern for her well being, has had his jail term cut on appeal.
The 25-year-old man, who cannot be identified for legal reasons, had pleaded not guilty at Wexford Circuit Criminal Court to sexual assault and burglary at a Wexford hotel on October 11, 2008.
He was found guilty by a 10-2 jury verdict and sentenced to two years imprisonment on July 5, 2016.
The man had his jail term cut today/yesterday with the Court of Appeal holding that his sentence ought to have been structured differently given his youth at the time of the offence – he was 17 – and his progress post offence.
He was resentenced to two years imprisonment with the final nine months suspended. However, the court directed that by May 30, any unserved portion of the sentence be suspended to afford him an opportunity to resit exam papers he had not passed.
The prosecution case was that the man entered, without permission, the hotel bedroom of the complainant and proceeded to sexually assault her by touching her breasts and penetrating her vagina digitally.
The complainant gave evidence of having travelled to Wexford on the night of October 8, 2008, of booking into the hotel, having dinner and then going to a nightclub with her sister. They returned to the hotel and she went to her bedroom while the sister remained downstairs.
The complainant gave evidence of having fallen asleep on the bed and awaking to feel that her top was being lifted and that she was being digitally penetrated.
She awoke, felt pain and saw a male who was unknown to her standing in the room with no trousers on. The man appeared to initially move to leave the room but then attempted to get into bed, the judge said.
The complainant shouted at the man to leave and he eventually did.
During cross examination it was suggested to her that she had consumed an amount of alcohol, had returned to her room and had fallen asleep face down on the bed leaving the door open.
It was put to her that what happened was that the man looked into her room while on his way to his own room which was close by and became concerned for her well being.
On his account, he entered the room and tried to shake her awake. However he did not succeed and returned to his room where he took off his trousers.
Still concerned for her well being, he decided to return when on this occasion she awoke, got a fright and believed that the man had been molesting her when it was claimed nothing of the sort happened.
In dismissing an appeal against conviction earlier this month, Mr Justice George Birmingham said the court of appeal was not satisfied that the man's trial was unfair or unsatisfactory.
Giving judgment on the man's sentence appeal today, Mr Justice Birmingham said there had been no guilty plea and no acknowledgement of wrongdoing. As a result he was denied the most valuable mitigation that arises when it comes to sentencing sex offenders.
But there were factors in his favour as submitted by his barrister, Orla Crowe SC.
Mr Justice Birmingham said it was a first offence committed by a juvenile, a school student who had no previous convictions or subsequent convictions eight years later. That strongly suggested that this incident was out of character.
Mr Justice George Birmingham said the sentence imposed was not a harsh one. However, it did not address the question of post-release supervision.
Given his youth and the progress he had made post offending, Mr Justice Birmingham said the sentence should have been structured differently.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would confirm the two year sentence but would suspended the final nine months on a number of conditions.
He was required to enter into a good behaviour bond to subject himself to 15 months post release supervision, participate in a sex offenders programme and work with the probation services on alcohol awareness.
Mr Justice Birmingham said the man had completed three years of third level studies but had not passed some papers and had to resit them.
The court directed that as of May 30, any unserved portion of the sentence would be suspended so that the man would have an opportunity to undertake to complete the exam papers. Mr Justice Birmingham said the court picked that date because "the repeats" were in mid August.
Mr Justice Birmingham told him that he would be required to do what the probation services tell him to do and that failure to cooperate would bring him further trouble.