Man jailed for 18 months over sexual assault of girl, 14

A Wexford man, who was threatened he would be knee-capped unless he pleaded guilty to rape, has been jailed for 18 months by Mr Justice Paul Carney for sexually assaulting a 14-year-old baby-sitter.

Nicholas Barry (aged 31), of Corach Avenue, Wellingtonbridge was convicted in May by a jury at the Central Criminal Court of sexually assaulting her but not guilty of raping her on November 25, 2006.

She agreed with defence counsel, Mr John O'Kelly SC (with Mr Colman Cody BL), at the trial, that she was aware Barry had been beaten up by her father and another of her relatives as a result of her allegation.

She also agreed she knew he received threats that he would be "knee-capped" unless he pleaded guilty to raping her but she denied she knew who was making what counsel called "silent phone-calls" to him.

Mr O'Kelly revealed at the trial that, contrary to what the victim and another witness claimed under oath, phone records showed that no phone-call was received by her or made by the witness during the offending.

The jury's verdicts were delivered following about two hours deliberation on day-four of the trial. Barry had pleaded not guilty to both charges and told gardaí that "all that happened was that I 'shifted' her", but admitted he knew she was only 14 years old at the time.

"Yes, it was a big mistake and I'm sorry I did it. I'm sorry it happened. It was a spur-of-the-moment thing."

Prosecuting counsel, Mr Sean Gillane BL, said that in the view of the Director of Public Prosecutions, the physical activity involved in the offence was at the "lower end of the scale" but that the victim's age was an "aggravating factor".

Mr Justice Carney said he found "this a most difficult case to resolve" because sentencing was about proportionality and this case involved, on one hand, "an illicit kiss, albeit a most passionate one" while on the other hand the courts had "to protect a 14-year-old female from sexual exploitation".

Mr Justice Carney said Barry had admitted consuming 14 pints of beer as well as cannabis beforehand. "It has been the experience of this court that that sort of lifestyle leads people of good background who leave home with no evil intentions into actions which can bring them before this court, even for homicide."

He added that in such cases the appellate and higher courts showed no mercy. Mr Justice Carney said that if anyone was displeased with his sentence in this case, their quarrel should be with the DPP and not with him. The DPP had indicated that this case was considered to be at the lower end of the scale for sentence.

He said he took into account the aggravating factors such as the disparity in ages of Barry and the victim and the breach of trust, as well as the effect on the victim. Barry had gone ahead with his actions even though he adverted to her age.

Mr Justice Carney said he also accepted Barry's "genuine remorse" and that he was successful in his trial on the rape charge. The sentence dates from now.

The victim earlier said in her impact statement evidence: "Why did he have to do it to me? Why didn't he just cop on?"

She told Mr Justice Carney that she had constant flashbacks, had difficulty sleeping and was afraid to go out in case she saw Barry or members of his family who she claimed "give me evil looks".

Mr O'Kelly said Barry was in a stable relationship and was dealing with his alcohol problem. He submitted that he was at low risk of reoffending and was embarrassed and ashamed of the "one-off incident".

Garda Patrick Frayne told prosecuting counsel, Mr Thomas Creed SC (with Mr Gillane), that the girl baby-sat previously in the same house a number of times. The children were in bed when she arrived at about 8.30pm and after their parents left she was watching television.

Barry arrived at about 10pm and asked her what age she was. When she told him she was 14, he said that they could both "have a bit of fun".

She told Mr Creed she replied "No" but he began kissing her and fondling her body outside her tracksuit as well as putting his hand down the front of her trousers.

He went outside to smoke when her phone rang but returned shortly afterwards, knelt down in front of her and tried to pull down her trousers. She said she tried to stop him but he put his fingers into her vagina.

She told Mr Creed he then pulled down his trousers and exposed his erect penis before he fondled her again and bit her breasts. "He then raped me," she claimed in her evidence.

She said she pushed him off her and dressed herself and that when he was leaving he said: "This is between the two of us. You're not going to tell anyone."

The girl told Mr Creed she said nothing to her mother about it when she came to collect her, but told her best friend at school on Monday and on her advice revealed what happened to her mother. Her father went to the gardaí to tell them about it.

Mr O'Kelly revealed in her cross-examination that phone records showed she wasn't called by the person she named as having phoned her during the man's presence in the house.

Mr O'Kelly also suggested to her that his client had kissed her but did nothing else and that after he asked her to let him out of the house he returned to apologise to her because he was ashamed of his actions.

She denied that her claims about being raped amounted "to sexual fantasy" and that having made what Mr O'Kelly called "exaggerated claims" she couldn't pull back because her family "was at high-doh".

A local woman who had claimed on oath that she telephoned the complainant about 10pm said she didn't want to see the phone records for their phones when Mr O'Kelly told her that they showed she hadn't in fact called the teenager that night.

Mr O'Kelly told her he was going to show her the records notwithstanding her declaration and then brought her through all her calls for that day. She agreed they didn't show any call to the complainant.

A school friend of the complainant said she was crying and appeared very upset on Monday and told her she had been raped on Saturday night. She advised her to tell her mother about it.