A Corkman who sexually assaulted his sleeping younger sister years after raping her when he himself was a child has failed in his appeal against the severity of his sentence.
The man, who is now aged 40 and cannot be named to protect the identity of his victim, was jailed for four years in June 2021 by Mr Justice Michael White at the Central Criminal Court for the rape and sexual assault of the child in the family home.
The man had denied the rape of his younger sister, who was aged between five and nine years old at the time, while he was aged between 12 and 14 years old. Years later, the man was 21-years-old when his then 16-year-old sister woke up on a couch to find him removing her clothes and sexually assaulting her.
He was convicted following a trial in April 2021 of a single count of rape in the family home in Co. Cork on an unknown date between November 25, 1995, and January 17, 1998.
He was also convicted of sexual assault at the same address between March 19, 2004, and November 23, 2004. The man had pleaded not guilty to both offences and had no previous convictions at the time of his sentencing.
At the Court of Appeal on Monday, Colman Cody SC, for the appellant, submitted that the amount of time between his client's sentencing from when he committed the offences should have been given more weight in mitigation. Mr Cody said his client was married with a young family and had an otherwise flawless record.
Mr Cody said that if the sentencing judge had considered each offence on their separate merits due to the amount of time that had also passed between them being committed then there would have been no reason to elevate the sexual assault when it came to sentencing.
Mr Cody said that the sentence for the sexual assault had been "disproportionate", even though the rape conviction had been taken into account. Counsel noted that no part of the sentence had been suspended.
Mr Justice John Edwards, presiding at the three-judge court, said the circumstances around the sexual assault were that the victim woke up on a couch to find the defendant taking down her clothes, which forced her to prepare for another rape. Mr Justice Edwards said it was "not just curiosity" but "something much more sinister" that motivated the man.
Ms Justice Isobel Kennedy said the victim had turned 16 and had to fight off her brother in "a serious incident", which "significantly aggravated" matters for the accused. Mr Justice Patrick McCarthy said he was "not impressed" by the appeal and that the appellant had done "very, very well" in mitigation after a seven-year headline sentence had been identified.
Jane Hyland SC, for the State, said the proper headline sentence had been correctly fixed by the trial judge, noting that the girl's older sister had to intervene regarding the rape. Ms Hyland said that the sentence imposed was a "proper and just", taking into account the man's age at the time of the sexual assault.
In dismissing the appeal, Ms Justice Kennedy said the headline sentence of seven years could have been "more serious" for the man "given what had previously occurred".
Ms Justice Kennedy said the rape and sexual assault occurred in the family home and that there could not be any doubt the man knew what he was doing was wrong due to the reaction of their older sister who intervened. When fighting off her brother as he sexually assaulted her years later, Ms Justice Kennedy said the victim's fear of what might happen was "well held".
Ms Justice Kennedy noted the victim spoke of her feelings of "shame and worthlessness" in her statement, which the woman read to the sentencing court.
She said the appellant had not pleaded guilty, which lessened any mitigation on offer to him. She said the court did not view it proper or just to interfere with the sentence and therefore dismissed the appeal.
At the sentence hearing, Mr Justice White said the most seriously aggravating factors were the breach of trust and that the victim was a young child. He said the victim was of the view that if she had not woken up during the assault, the crime would have been more serious.
Mr Justice White said there had been no acknowledgement of guilt by the accused man and that the most significant mitigating factor was the man's age.
The judge said if the court had been dealing with the offence of rape alone, committed when the accused was a juvenile, it was likely that a non-custodial sentence would have been applied. He said if he had been dealing with just the sexual assault, then a short custodial sentence would have been imposed.
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