THE COURT OF APPEAL Neutral Citation: [2026] IECA 61 Record Number: 339/2024 Burns J. O’Moore J. Owens J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT - AND - MM APPELLANT JUDGMENT of the Court delivered on the 16th day of March, 2026 by Ms. Justice Tara Burns. 1. This is an appeal against sentence. On 30 July 2024 the appellant pleaded guilty to one count of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 (Count 1) and one count of possession of child pornography contrary to s.6
(1)of the Child Trafficking and Pornography Act 1998 (Count 2).
- On 29 November 2024 the appellant was sentenced to 5 years’ imprisonment in respect of Count 1 and a consecutive term of 12 months’ imprisonment in respect of Count
- The final 6 months of the sentence imposed on Count 1 was suspended for a period of 2 years on certain terms and conditions. The sentence imposed on Count 2 was suspended in full for the same period. The effective sentence imposed on the appellant was 4 and a half years’ imprisonment. This sentence was backdated to 21 November 2024, the date the appellant entered into custody. Background
- On 19 June 2021 the victim was socialising with friends in the village where she lived. The appellant, who was an acquaintance of the victim, was one of the individuals in the group. After closing hours, the group returned to a home owned by one of their number to continue socialising. The victim ingested a cannabis jelly, which resulted in her feeling unwell and vomiting. The victim’s friend then brought her to a bedroom so that she could sleep.
- During the night the victim awoke to the appellant entering the bedroom. Thereupon the appellant subjected the victim to a series of sexual assaults. The appellant got into the victim’s bed dressed only in his underwear. He pulled the victim’s shorts and underwear down to her knees. The appellant then proceeded to digitally penetrate the victim. The appellant asked the victim to have sex but she pretended to be asleep.
- The appellant proceeded to remove his own underwear. He stood at the side of the bed and manipulated the victim’s hand to mastrubate him. The appellant climbed on top of the victim and began rubbing his naked penis against her naked vulval area. The victim also felt the appellant’s penis on her face. The victim described freezing throughout the entire incident.
- When the appellant heard a noise, he stopped and got out of bed but then returned and continued sexual assaulting the victim. This happened on a number of occasions.
- The victim informed a friend what had happened later that night and reported the incidents to An Garda Siochana the following day.
- The victim was 19 at the time of the offending and the appellant was
- The appellant’s house was searched on foot of a search warrant on 23 June
- He was arrested and his phones were seized.
- An analysis of the appellant’s phones revealed 6 videos and 20 images of child pornography, of which all bar 9 images were categorised as falling within category 1 child pornography. This material had been purchased by the appellant and stored on his phone.
- Nothing of evidential value arose from the appellant’s interviews when arrested. However, he had provided the pin numbers for his phones which was of assistance to the investigation.
- The appellant subsequently entered a guilty plea prior to a trial date being sought.
- A victim impact statement outlined the very serious effect the offending had on the victim. Personal Circumstances of the Appellant
- The appellant was 26 years of age at the time of the offending. At the time of sentencing, he was recently married. The appellant had a good work history. He had one previous conviction for drink driving in 2019 but otherwise was of previous good character. Sentencing Judge’s Determination
- On 29 November 2024 the sentencing judge pronounced sentence on the appellant in the following manner:- “Looking then at aggravating and mitigating factors. There are a number of aggravating factors in this case, in my opinion. Dealing firstly with the sexual assault, well, the impact of your actions on [the victim], which I have already detailed. Next the details of your offending behaviour which I've already described are also aggravating factors in this case involving, as they did, the repeated violation by you of [the victim]'s body and genital area. The use and manipulation by you of her hand for your own pleasure and arousal. The removal of her underwear and on one occasion your underwear, to repeat only some aspects of what I have already described. Next, the fact that your victim was the worse for wear, due to a combination of drugs and/or alcohol and the fact that you either thought or hoped she was asleep are further aggravating factors, in my opinion. You seized on the opportunity to take advantage of a person who was in a vulnerable condition and who might not have been in a position to resist your advances. Next, the breach of trust involved here, given that [the victim] was a person whom you had known for years and who lived relatively close by you. Regarding the child pornography offence, I regard the following as aggravating factors; firstly, the nature of the material involved, which I've already referred to. Next, the fact that you were prompted to purchase the material and did so rather than refuse it. We are not dealing here with something that occurred by accident, instead it was intentional. Next, the fact that having purchased this material out of a sense of curiosity and having viewed it, you then stored it. However, there are also mitigating factors; and, again, dealing with the offences in turn, in terms of the sexual assault, I regard the following as mitigating factors; your guilty plea is of significant value and you are entitled to credit for it. The very nature of this offending involves the word of one party against another, and in this case when you take the issue of alcohol and drugs into account, which can create a degree of vagueness, it may have been proven difficult for the prosecution to bring home their case in terms of satisfying a jury of your guilt beyond reasonable doubt, a fact which has been acknowledged by the prosecution and for which you are therefore entitled to credit. Next, by pleading guilty you have also avoided the retraumatisation of your victim, for which you are entitled to credit, and you are also entitled to credit for the saving of court time and expense. Next, you have also expressed your deep shame, regret and remorse for your actions and for the effect which they had on [the victim], a fact which is evidenced in your actions by the entry of your guilty plea, as well as in your words, both in your letter of apology and in consultation with [the forensic psychologist]. The fact that you have no previous offending behaviour of a similar nature, such that I am viewing this as your first offence is another mitigating factor. Next, the fact that you were fully cooperative from the outset, handing over two telephones and providing the PINS for same at a time when the gardaí were investigating the possibility that you had taken some photographs of [the victim]. Next, the content of the various documents handed into court, including [the forensic psychologist]’s assessment of you as being at low risk of reoffending, albeit that you are not at the very lowest risk level, according to whatever matrix she uses in that regard. Next, the fact that you are in all other respects pro-social, having a good work history and being now a married man in a stable relationship, albeit a fairly recent relationship and marriage. Next, the fact that you haven't hidden your offending behaviour from your family, who continue to support you to this day. Looking at mitigating factors in terms of the child pornography offence; your guilty plea is of course a factor for which you are entitled and do in fact receive credit. Next, there's no mention or suggestion of you sharing or distributing the material in question which you had downloaded. Next, I take into account the relatively small number of videos and images when viewed in the context of what occasionally comes before the courts, and in the overall context of the 60,000 or so other pornographic images on your telephones. Next, the fact that you've no previous offending of a similar nature, such that this is, is what I view as a first offence. Again, the fact that you were fully cooperative from the outset, handing over two telephones and providing the PINS for same to the gardaí. Indeed, the gardaí were not investigating any such offence when they took possession of your phones and there is no suggestion that you tried to hide material from them. Somewhat ironically, one might suggest, it was your cooperation in that regard which led to the detection of this offence. Once again, the content of the various documents handed into Court, including [the forensic psychologist]’s assessment of you as being at low risk of reoffending, albeit, as I say, you're not at the very lowest risk level, according to whatever matrix she uses in that regard. And, again, the fact that you're in all other respects pro-social, having a good work history and being now a married man in a stable relationship, albeit a fairly recent relationship and marriage. And, finally, the fact that you have not hidden your offending behaviour from your family, who continue to support you. So, when I take all of these factors into consideration and consider them all carefully, I then turn to the issue of sentence. In respect of Count 1, being the account of sexual assault; I believe the appropriate pre-mitigation headline sentence in respect of this matter is one of seven years imprisonment. However, taking into account the various mitigating factors, to which I have already referred, I believe the appropriate sentence is in fact one of five years imprisonment. In respect of Count 2, being the count of possession of child pornography, I believe the appropriate pre-mitigation headline sentence in respect of this matter is one and a half years imprisonment. However, considering the various mitigating factors, to which I've already referred, I believe the appropriate sentence is in fact one of 12 months imprisonment, the said sentence to run consecutive to the sentence imposed in respect of Count
- Thereafter, in an effort to encourage rehabilitation and in acknowledgement of the steps already taken by you in that regard, in terms of attending with a counsellor, and also having regard to the principles of totality, I am going to suspend the last six months of the sentence imposed on Count 1 and I am going to suspend in full the sentence imposed on Count 2 on [conditions] Grounds of Appeal
- The appellant indicated his desire to appeal against his sentence by Notice of Appeal dated 19 December
- While a number of grounds of appeal were formulated by the appellant, the sole focus for the purpose of the appeal hearing was the headline sentence of 7 years identified by the sentencing judge in respect of the sexual assault offence. The Parties’ Submissions
- The appellant submitted that the sentencing judge erred in identifying a headline sentence of 7 years for the sexual offending which placed it in the upper range of the scale of seriousness. It was submitted that a sentence in the mid-range bracket was more appropriate for the offending behaviour. It was submitted that the offending related to a single incident and was not pre-planned.
- The respondent submitted that the identification of a headline sentence of 7 years’ imprisonment properly reflected the serious nature of the offending at issue together with the severe impact the offending had on the victim. While the offending occurred in the context of alcohol and drug use, the appellant acted in a deliberate manner having regard to his continued sexual engagement with the victim although, on occasion, being disturbed in the course of carrying out the sexual assaults. Discussion and Determination
- The sexual offending in this matter was of a very serious nature, involving digital penetration; penile contact in the victim’s vulval area with the appellant on top of the victim pushing his naked penis against the victim’s naked vagina; forced masturbation; and putting his penis around the victim’s face. To effect these assaults, the victim’s lower clothes were removed. This was in circumstances where the victim was in a vulnerable state and was in bed because of being unwell. In addition, a breach of trust arose in circumstances where the appellant, who was older than the victim by some years, was known to her. Furthermore, the appellant continued his sexual assault of the victim over a period of time despite on occasion being concerned about being discovered.
- The recent guideline decision of this Court in DPP v. GN [2025] IECA 254 sets out sentencing guidelines in relation to sexual assaults and the considerations which apply when determining the level of seriousness of the sexual offending behaviour. Charleton J, addressing the upper range of serious offending for sexual assaults which attract a headline sentence of 7-10 years, stated at paras 23 and 28 of his judgment:- “
- Offending in the upper range of gravity tends to involve persistent violations of trust, as with people acting in a parental capacity, or as guardians; where the offences form a series; where children or the vulnerable are targeted; or where the intrusions are of a gross and particularly damaging kind. These will be offences where the victim is subjected to the kind of treatment in the most grave category, but, in addition, the harm done is psychologically damaging. Such offences may involve abduction or imprisonment, the application or threat of violence, repetition of the crimes, or long duration in the offences themselves, or in the series of crimes they make up. The waylaying of a victim or intrusion into a person’s home through deception or force is also especially grievous. Here, and in what follows, grievousness references the culpability of the conduct together with the harm meted out on the victim or victims. …
- Therefore, cases which fall into this most grave category of sexual assault are generally, but not limited to, those that display particularly aggressive, degrading, or intimidating conduct, even if occurring on one single incident, or those that involve a breach of trust, a vulnerable and or young victim, or a pattern of multiple and repeated instances of sexual assault of a grave nature.”
- Whilst the offending in the instant matter related to a single incident, the nature of it was of a particularly intrusive and gross character involving several different sexual assaults, including one of the utmost gravity; it continued over a period; it was perpetrated on a very vulnerable young woman who was unwell and incapable of defending herself; and it also involved a significant breach of trust. Furthermore, the sexual offending had a most profound effect on the victim in terms of her feeling the need to leave her homeplace after the offending and the mental anguish which the offending caused her.
- Accordingly, the sentencing judge did not err in finding that the sexual assault offending fell into the most serious category of offending. His identification of a 7 year headline sentence, having regard to all of these factors, does not reflect an error in principle. Conclusion
- As the appellant, correctly does not take issue with the reduction afforded to him in respect of mitigatory factors, resulting in an effective sentence of 4 and a half years’ imprisonment, we are of the opinion that the sentence imposed does not reflect an error in principle and dismiss the appellant’s appeal against sentence. APPROVED NO REDACTION NEEDED