A man who sexually assaulted his neighbour while her eight-year-old son lay in bed beside her has had his two-year suspended sentence increased following a successful appeal by the Director of Public Prosecutions.
However the 43-year-old man, who cannot be named in order to protect the identity of the victim, will not spend any time in jail as his new four-year sentence was also suspended in full by the Court of Appeal today.
In July 2013, the man was sentenced to two years suspended by Judge Martin Nolan, having pleaded guilty at Dublin Circuit Criminal Court to sexual assault in a Dublin suburb on July 15, 2012.
The court heard evidence that the man had attended a street party with a number of neighbours, including the victim, earlier that day.
There was evidence the man had been drinking alcohol and he later told gardaí that he had no idea how he ended up in the woman’s bed and said he thought the victim was his partner when he began touching her and pulling down her leggings and underwear.
The court heard that the boy woke up a few minutes into the assault to find the man in the bed touching the then 34-year-old victim, and had tried to stop the man.
There was evidence the man had the woman pinned to the bed having wrapped his leg around her. He whispered into her ear “ssshhh just stay still, relax, I am nearly done”.
Under his mother’s instructions, the child then ran off to get help from another neighbour. The neighbour arrived into the bedroom minutes later and the man left the house.
Counsel for the DPP, Mr Kerida Naidoo BL, today said the sentencing court had taken the view that the case lay on the lower end of the spectrum of seriousness, whereas it was submitted that the case was more properly placed on the mid range, given the circumstances of the offence.
Mr Naidoo told the Court of Appeal that the offence took place in the victim’s home while she was asleep. He said that insufficient weight was placed on the aggravating factors in the case, such as the fact the offence was committed while the victim’s child was in the bed with her.
He submitted that the trial judge may also have placed undue weight on the remorse displayed by the man, in circumstances where he had maintained the position that he thought he was in bed at home with his own partner.
Mr Damien Colgan BL, for the respondent, said the man had been assessed as being at a low risk of reoffending, had not come to garda attention since and had moved away from the area.
Returning judgement, Ms Justice Mary Irvine said the appeal court had “very carefully” considered the approach taken by a “very experienced trial judge” to what was “quite a complicated” case.
She said the circumstances of the offence were “very serious” indeed, as it took place in the victim’s home in the presence of her son and it had a significant effect on her. Ms Justice Irvine said the court found the sentence overall was unduly lenient in all the circumstances.
She said the court found that it was an error in principle to place the offence on the low end of the spectrum, as this “miscategorised” the gravity of the offence.
Returning sentence, Ms Justice Irvine said the court found the appropriate position to place the offence was on the mid range on the spectrum, and that prior to considering the mitigating factors a sentence of four years would be appropriate.
She said it was the court’s view that there are fairly exceptional mitigating circumstances in the case as of today’s date, and at the time of the original sentence there was already significant mitigation such as the plea of guilty, cooperation with gardaí and remorse shown by the man, albeit there was some limitation to the remorse.
The judge said the man had only one prior conviction for larceny dating back to 1993 and shown himself capable of rehabilitation. She said the man had moved himself and his family away from the area, which had imposed significant hardship, and the court believed the victim “likely got some benefit” from the fact the man had moved.
Having regard to all matters the judge said the court found it “only just and proper” that the sentence of four years be suspended in full and backdated to July 4, 2013.
At the close of sentencing the victim’s father addressed the court and said he believed it was “a terrible thing” that the man was “walking out of court”.
Presiding judge Mr Justice Mary Finlay-Geoghegan said the court understood that the matter was very upsetting for the father, but the court had considered the matter and found it to be a very serious offence. She said the court had wider obligations in sentencing.
The victim’s father said his child and grandchild could not get counselling because of cutbacks.