The trial court heard that the man was 21 and living with his parents and grandmother when he abused the victim, who had come to stay in his home in the summer of 1978.
The victim gave evidence that the man would come into his room at night when everyone else was in bed. Initially he just spoke to the boy and brought him sweets, but later began to sexually abuse him.
The now 63-year-old man, who cannot be named for legal reasons, was charged with five counts of indecent assault between May 1st and August 31st 1978 at an address in Co Mayo. On October 4th, 2018 a Mayo Circuit Criminal Court jury found him guilty on all counts by majority verdict. The man, who had denied the charges, was sentenced to eight years and nine months, with the final one year and nine months suspended, by Judge Rory McCabe in February 2019.
Appeal against severity
The defendant successfully appealed against the severity of his sentence today and was re-sentenced to eight years and nine months, with the final two years and nine months suspended after the Court of Appeal found that the sentencing judge had erred in failing to make any reduction for mitigation.
The appellant moved to appeal the severity of his sentence before the Court of Appeal on grounds that the sentence imposed and in particular, the cumulative sentence imposed, was disproportionate, excessive and failed to take the personal circumstances of the accused into account.
Other grounds of appeal included that the sentencing judge had stated at the time that there was “no realistic scope for mitigating the headline sentence” and thus did not make any reduction “whatsoever” for mitigation.
In a remote hearing, counsel for the appellant, Ms Roisin Lacey SC, said her client was 21 years old at the time of the offences and 61 years old by the time his case came on for trial.
Ms Lacey submitted that the sentencing judge had placed the offending at the high end of the scale in relation to the indecent assaults and fixed a headline sentence of 21 months in respect of each count.
Counsel argued that the sentencing judge fell into error when calculating the sentence, including by categorising the offences at the high end of the scale. Ms Lacey submitted that the offending behaviour did not lie at the high end of the scale in the absence of any evidence of violence or degradation other than that inherent in the offending. Furthermore, the barrister said that the entire period of offending spanned a brief period of time, namely a number of weeks over the summer in 1978.
Ms Lacey submitted that the trial judge erred by holding that there was “no readily identifiable factor” in mitigation and had held that the defendant’s ill health, strong work history, age and lack of previous convictions did not amount to mitigating factors. There were no previous convictions “clocked up” by the appellant between the time of the offending and on the date he was sentenced and failing to accord any mitigation for this intermittent period of almost 40 years amounted to an error in principle, she outlined.
Delay in case
In addition, the lawyer said that the sentencing judge made no reference to the significant delay in the case when calculating the sentence.
“It is well established that in cases where a defendant has already suffered a very significant delay prior to charge that the fact of his good character and positive life subsequent to the offending are factors to be given substantial consideration at sentence,” she added.
Opposing the appeal, Mr Patrick Reynolds BL for the Director of Public Prosecutions submitted that the “very experienced” sentencing judge “carefully and meticulously crafted” a sentence that was appropriate and within the range available to him to reflect the gravity of the offence and the circumstances of the appellant.
Delivering judgment this afternoon, Mr Justice Patrick McCarthy said that consecutive sentencing had to persist in this case due to the nature of the offending.
The sentencing judge was not dealing with a single transaction in this instance, where it would be rare to impose consecutive sentences, said Mr Justice McCarthy, adding that Judge McCabe was perfectly entitled to exercise his discretion in the way he had done. “The complainant was in a strange place, in the company of persons not known to him, and he was groomed by the appellant,” said Mr Justice McCarthy.
However, Mr Justice McCarthy said the three-judge court had taken “a different position” with regard to the mitigating factors and did not find themselves in agreement with the sentencing judge that no mitigating factors were present in the case.
“The offending was committed by someone of 21 years of age, and he came before the court for sentence as someone who had not offended in 40 years and these factors had to be considered by way of mitigation,” he said.
Mr Justice McCarthy sitting with Court of Appeal President Mr Justice George Birmingham and Ms Justice Isobel Kennedy, resentenced the man to eight years and nine months, with the final two years and nine months suspended rather than one year and nine months.
Covid rates too high for schools to reopen, says top health official
Speaking on RTÉ’s Morning Ireland, Dr Colm Henry said he hoped there would be an approach which would give priority status to “certain elements of the education sector.”
It was “tragic” to be talking about schools remaining closed, he said. “We learned from the first surge about how much harm was done to children, especially early school children, particularly in special needs environments, when there was a pause in education.”
Nobody wanted to see the schools’ closure to be protracted because of what had happened “the first time.”
Transmission levels at the moment are frankly too high, he said. They need to be reduced “to much lower levels” before any additional risk of “mixing crowds or a mixing of people in school settings.”
It was his hope that “certain elements” of education, especially special needs, could return because of the impact such closures had previously.
The Department of Education is understood to be exploring whether to allow individual special schools to reopen if enough staff are willing to return on a voluntary basis.
However, sources told The Irish Times that there are concerns that such a move would be divisive and antagonise school staff unions.
Most stakeholders feel the fastest pathway towards reopening special education rests on building confidence among staff over the safety measures and seeing a decline in virus transmission rates in the community.
The Irish National Teachers’ Organisation (INTO) and Fórsa, the union which represents special needs assistants, resumed talks on Thursday with the Department of Education over reopening schools.
Dr Henry’s comments come as the HSE chief executive confirmed that two-thirds of all patients in intensive care are being treated for Covid-19.
Two-thirds of intensive care patients have Covid,…
In a tweet posted on Friday morning, Paul Reid said the health service had never seen such a number of people being treated “for the same illness”.
Some 211 Covid patients (66 per cent) are in intensive care units, Mr Reid said.
He also said there are 300 patients outside of intensive care receiving respiratory support.
“We’re battling hard to sustain safe levels of care but it’s getting harder,” Mr Reid said.
Northern Ireland protocol problems ‘foreseeable’, says Foster
Hauliers have faced difficulties transporting stock to Northern Ireland from Great Britain and pet owners have to organise veterinary procedures for rabies if they want to bring their animals across the Irish Sea.
Northern Ireland is continuing to follow some of the EU’s rules to prevent the establishment of a hard border on the island of Ireland.
The DUP leader told the BBC’s Radio 4: “It is most definitely a structural problem in the Northern Ireland protocol.
“We warned about that last year when people voted to bring in the protocol, that there would be difficulties moving between Great Britain and Northern Ireland.”
Many people are struggling with mental health issues at present.
If you are feeling like you cant cope – please seek help. There are services and facilities there to assist. pic.twitter.com/eMp7qpNgr2
— Arlene Foster #WeWillMeetAgain (@DUPleader) January 21, 2021
The protocol is designed to allow Northern Ireland to follow the EU’s customs rules and has caused delays at the ports because of new declarations and checks.
The DUP has been vociferous in opposition to the protocol’s operation.
Ms Foster said: “The prime minister promised us that there would not be any difficulties, but given the protocol and all the difficulties we have seen on the ground it was very clear that this was going to happen – it was all foreseen.”
She accepted that there would be opportunities for businesses in Northern Ireland to trade freely with the EU and the rest of the UK due to its special status.
She said she was committed to making the best of the current arrangements.
Brexit: Protocol gives North ‘significant market a…
Goods are flowing effectively between Great Britain and Northern Ireland, the UK government has said.
The end of the Brexit transition period has produced deep-seated structural problems which will not be quick to resolve, the Road Haulage Association (RHA) warned earlier this week.
The UK government must intervene with extra cash before jobs are lost at freight companies, the industry said.
Belmullet GP working remotely while sick with Covid due to lack of cover
Dr Fergal Ruane told RTÉ’s Morning Ireland that the Co Mayo town was shell-shocked with the high levels of Covid-19 in their community. There were 700 cases in the last two weeks with deaths “in the double digits”.
While the rise in cases had been inevitable, the high numbers had been a shock. The community was living in fear, he said. The town was a Covid enclave, in a remote area with a small population. “We’re a remote community on its own.”
Belmullet has the highest incidence of Covid-19 in Ireland. New figures released on Thursday night show the disease spreading in the remote area at a rate more than four times higher than the national average.
Some 700 people from the population of 12,600 had tested positive for the virus in the last fortnight, giving an incidence rate of 5,555. The national incidence rate currently stands at 1,334 cases per 100,000 people.
Covid had devastated the area, Dr Ruane said. The elderly were dying and people in their 50s were ending up very sick, with many in intensive care facing a slow recovery.
Mayo village rocked by death of nurse from Covid-1…
The community was under severe strain, one of the two local paramedics was in hospital and a local pharmacy had to open with only three staff, he added.
“I have Covid myself, I can’t get a locum, so I am working on the phone.” He said he had no choice but to work as there was no cover available. The first few days of his illness “were not pleasant”, he said.
Dr Ruane said that in the week after Christmas “from 9am to 8pm the phone did not stop ringing.”
The community was rallying together, as they always did in difficult times, but people from outside the area were not welcome in Belmullet at the moment, he said.