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Appeal against six years imprisonment for sexual assault dismissed

By: Bakshi Mohit BL

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Court of Appeal dismisses appeal against severity of a six-year sentence for sexual assault, on the grounds that: (a) there was an evidential basis upon which the judge was entitled to take the view that there was little reality in the concept of rehabilitation; and (b) there was no error in principle.

McCarthy J: Criminal Law – appeal against severity of sentence – single count of sexual assault – six years imprisonment backdated to one month prior – appellant then aged 21 – assault on complainant in a public house and guesthouse – complainant then aged 16 years old – complainant described herself as familiar with the appellant – appellant offered her alcohol numerous but was complainant declined – at 4am complainant realised the time and left to walk home – appellant followed her out onto the street and encouraged her to come back in, which she did – they went to the bar and then upstairs where party continued – people were mixing in different bedrooms – complaint states she was sober at this point and spent most of her time in one of the rooms with one of the appellant’s friends from Dublin – sometime in the early hours of the morning, whilst the complainant was chatting to one of the appellant’s friends, the appellant entered the room and told them that a fight was taking place downstairs – the friend of the appellant left the complainant on her own with the appellant and he used the opportunity to assault her – appellant closed the door of the room and when complainant tried to leave, he took her phone from her – complainant was distressed as to what was happening – appellant placed his two hands on her shoulders and pushed her backwards towards and across a double bed in the room – he then tried to kiss her – appellant began to digitally penetrate the complainant’s vagina with his hand and with his other hand he zipped down the complainant’s jumper and placed his hands underneath her bra onto her breast – complainant screamed and demanded he stopped – she struggled and he eventually just got up and left – she noticed she was bleeding and informed her mother about what had happened – complainant was examined as part of the criminal investigation and damage to the wall of the victim’s vagina was found – there was further evidence of damage to the zip of the complainant’s jeans – complainant provided victim impact statement which was read out at sentencing – appellant had 52 previous convictions – even if the previous convictions cannot be deemed as aggravating, they mean the appellant did not come before the trial court as a person of good character – they gave rise to a progressive loss of mitigation – victim being a child was clearly an aggravating factor – account was also taken by the trial judge as to the significant impact of the assault on the victim’s life – trial judge considered that absence of guilty plea removed the appellant’s opportunity for any mitigation – whether the headline sentence was excessive in all the circumstances of the case – whether the actual, or effective, sentence imposed was excessive in all the circumstances of the case – whether the sentencing judge erred in determining that there was little mitigation in the case and what mitigation there was, was insufficient to reduce the headline sentence – there was an evidential basis upon which the judge was entitled to take the view that there was little reality in the concept of rehabilitation – it does not follow from the fact that this was the first conviction on indictment that a portion of the sentence ought to have been suspended – there wasn’t any error in principle – appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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