[2026] IECA 93

THE COURT OF APPEAL Neutral Citation: [2026] IECA 93 Record Number: 335/2024 Kennedy J. Butler J. Burns J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT - AND - TQ APPELLANT JUDGMENT of the Court delivered on the 24th day of April 2026 by Ms. Justice Tara Burns. 1. This is an appeal against sentence. Following a three week trial before the Central Criminal Court, the appellant was found guilty of 17 counts of sexual assault against a single victim contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990. Four counts related to specific occasions where the victim was sexually assaulted by the appellant, which occurred on unknown dates between May 2009 and September 2014. The remaining 13 counts, which the appellant was found guilty of, were charged on a sample count basis and covered the period between April 2010 to June 2013 (except for the period between September to December 2010) and between April 2014 and June 2014. 2. On 14 October 2024, the appellant was sentenced to an 11 year term of imprisonment, with the final 12 months suspended on condition that he engage with the probation service for that period, following his release from prison. Background 3. The victim is the first cousin of the appellant. Due to difficult family circumstances, the victim, along with her siblings, moved into the appellant’s family home, having previously lived in temporary care arrangements. The victim was between 8 and a half to 13 years old at the time of the offending. The appellant was 19 and a half years old when the offending commenced. The appellant began to perpetrate sexual assaults on the victim shortly after she moved into the appellant’s home. The offending ceased when the victim complained to her aunt about the sexual abuse when she was 13 years old. However, her aunt later denied that the offending was reported to her when she was called to give evidence at trial. After the reporting of the abuse to her aunt, the appellant apologised to the victim, having been confronted by his mother, and the abuse stopped. This confrontation and apology were denied by her aunt and the appellant in the course of the trial. 4. The offending generally comprised of the victim being required by the appellant to undress, with the appellant undressing himself. She was then required to lie down on a bed, whereupon the appellant lay on top of her and rubbed his naked penis against her naked vulva. The offending took place in her aunt’s bedroom (which offered a view to the entrance of the driveway) on occasions when the victim and the appellant were alone in the house. The offending occurred whenever the opportunity arose but generally took place two to three times a month. With respect to the four separate incidents, two of these involved a similar type of behaviour to that already outlined. The other two incidents involved sexual assaults of a different nature, with one involving very painful digital penetration which occurred later on the same day the victim had already been subjected to a sexual assault. 5. The appellant was arrested and detained for questioning; however, he denied any allegation of sexual wrongdoing. The appellant also gave evidence at trial denying the victim’s allegations and her assertion that he had apologised to her. 6. The victim provided a victim impact statement which outlined the significant effect the offending had on her. Personal Circumstances of the Appellant 7. The appellant was 34 years old at the time of sentencing. He was married with one young child. He has no previous convictions and had a good work history. At the sentence hearing, the appellant accepted the jury verdict and offered an apology to the victim. However, in discussions with a psychologist who was tasked with preparing a psychological report on behalf of the appellant for the purpose of the sentence hearing, the appellant had continued to maintain his innocence for a period after the jury verdict. When he came to accept the jury verdict, he indicated to the psychologist that he had fought his trial as he did not think that there was enough evidence to convict him. The psychological report found that the appellant was on the borderline range of intellectual functioning, he was at “a level II Below Average risk” for future sexual re-offending and lacked insight into his offending behaviour. Sentencing Judge’s determination 8. The sentencing judge identified the aggravating and mitigation factors as follows: “In my view the following are the aggravating factors in this case; firstly, the type of offending; the vast majority of the offences involved the accused getting the complainant to undress then undressing himself and rubbing his penis, his erect penis up and down over her vaginal area, in what would appear to have been some form of simulation of sexual intercourse. Secondly, the furtive and planned nature of the offending, this generally happened when they were alone and in his parent's bedroom where he could keep an eye out and could hear and see if a car was crossing the gravel in the front, which would alert him to the presence of others. The length of time over which this offending occurred. It occurred for almost four years in time with intermittent gaps as, for example, when he was in Tralee for a period of time doing a course on, I think it was carpentry. The age disparity between the accused and the complainant, she was a very young child and she was almost 11 years younger than him when this abuse commenced. She was only eight and a half and he was just short of 20 when this abuse began. The breach of trust by the accused. He was her older cousin in a situation where he clearly exercised some degree of dominion or control over her. The particular vulnerability of the complainant, a fact well-known to the accused man. She and her siblings had come to live with the accused and his parents after being in foster care and not properly looked after by their own parents. The mitigation in this case is the following: the accused has no previous convictions. He has a reasonable work record and is well regarded by neighbours, as attested to by references …. He has the support of family and a very late admission of guilt after being convicted …and after he had initially told the psychologist that he had not committed these offences.” 9. The sentencing judge determined: “In my view, this is a case where the offending must put the sentence close to the top end of the scale available for sexual assaults of a child. Although there was no added violence of intimidation, this was a gross breach of trust by an older man on a particularly vulnerable young child over a period of time and a child in relation to whom he had certain dominion. It continued on a frequent basis over long periods of time, usually when they were left alone in the house.” 10. The sentencing judge identified a headline sentence of 12 years’ imprisonment which he reduced to 11 years to reflect mitigatory factors. In addition, to assist the appellant’s rehabilitation, he further suspended 12 months of the term of imprisonment on the condition that the appellant engage with the probation service. Grounds of Appeal 11. By notice of appeal dated the 13th of December 2024, the appellant indicated his desire to appeal the severity of his sentence on the following grounds: “1. The Trial judge erred in principle and in law in imposing a headline sentence of 11 years with one suspended resulting in a 10 year custodial sentence in respect of all counts as such was unduly harsh and not proportionate in the circumstance;

1. a)That the learned trial judge erred in principle and in law in determining that the offences specified were in the highest culpable category;
2. b)That the learned trial judge erred in principle and in law in failing to properly assess the mitigating factors specified below in coming to a proportionate sentence; (
3. i)The positive psychological report; (
4. ii)The genuine expression of remorse; (iii) That the accused had been found not guilty by the jury on all the more serious charges of attempted rape; (
5. iv)The acceptance of the jury verdict and the indication that there would be no appeal against conviction thereby putting the victim's mind at ease; (
6. v)The peculiar circumstances of the accused applying at the time of the commission of these offences, the age of the accused at the time of the offences, and the fact that he had mental health issues and diminished intellectual capacity; (
7. vi)That the accused is married, has one son. (vii) That the accused had a good working history and in gainful employment; (viii) That the accused had no prior history of offending before or after these offences; (
8. ix)The references offered up to the court. (
9. c)That the learned trial judge erred in principle and in law in failing to give adequate regard to the accused circumstances and his relatively young age at the time of the commission of the offences and the accused mental health problems and his diminished intellectual capacity.” The Parties’ Submissions 12. The appellant submitted that the identification of a headline sentence of 12 years’ imprisonment was too high and reflected an error in principle. It was argued that as there was no intimidation, grooming, or threats made to the victim, the offending did not fall within the highest range of seriousness. It was also submitted that the sentencing judge failed to have regard to all of the mitigatory factors present in the case and only gave credit for the late admission of guilt. In particular, the sentencing judge failed to have regard to the appellant’s age at the time of the offending, his low level of intellectual functioning, his low risk of re-offending, and the interruption that a long prison sentence would bring to his family life, particularly having regard to him having a young child. In addition, it was argued that the suspension of only one year from the sentence was not sufficient to facilitate rehabilitation on the part of the appellant. 13. The respondent submitted that the identification of a headline sentence of 12 years’ imprisonment was not an error in principle having regard to the nature of the offending, the age and circumstances of the victim, the frequency and duration of the offending over a period spanning more than four years, the breach of trust by the appellant, the age disparity between the victim and the appellant, and the significant impact the offending had on the victim. The respondent also submitted that the sentencing judge did have regard to the mitigatory factors present in the case and the reduction of one year from the headline sentence identified was within the sentencing judge’s discretion. In addition, the suspension of 12 months adequately addressed rehabilitation, having regard to the evidence before the Court. Discussion and Determination Headline Sentence 14. The sentence imposed in this matter was pronounced prior to the delivery by this Court of the guideline judgment relating to sexual assault offending, namely DPP v. GN [2025] IECA 254. Having regard to GN, sexual assault offending which falls into the upper range of seriousness attracts a headline sentence of 7 to 10 years’ imprisonment in respect of adult victims, and 9 to 14 years’ imprisonment where the offending relates to a child under 17. Relevant factors which place sexual assault offending into the upper range of seriousness were addressed by Charleton J. at paras. 23 to 25 and para. 28 of his judgment: “23. 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. 24. Regrettably, the courts have seen many instances of sexual assault in this most grievous of general but, nonetheless, indicative categories. These have involved multiple and repeated targeting of the same, or a series of, victims and where those subject to the abuse were psychologically vulnerable, or did not fully understand the situation, or were bullied into silence. 25. Such circumstances will bring the headline sentence imposed into the upper range of around seven years to ten years, unless the person on whom the assault was committed against is a child aged 16 or younger, wherein a higher penalty applies if that offence was charged. With a child, ’a person under 17 years of age', being the definition in s. 2 of the 1990 Act as amended by s. 37 of the 2001 Act. There the upper range is appropriately 9 to 14 years imprisonment. … 28. 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.” 15. The offending in this matter displays very many of these features: the victim was a young child aged between 8 and a half and 13 when the offending took place; she was subjected to persistent offending, occurring generally two to three times a month over a four year period; the nature of the offending was of a very serious kind involving a naked penis being rubbed against her naked vulva; she was a very vulnerable child who had only just commenced living in the appellant’s family home when the offending commenced; the offending occurred in her new home where she was supposed to have found refuge; the offending involved a significant violation of trust; and the harm done to the victim is very significant, given that it is still ongoing. While intimidation, grooming and threats did not feature in the offending, GN establishes that it is not necessary for such matters to be established for offending to fall within the upper range of seriousness. 16. While counsel for the appellant initially sought to argue that the appellant’s moral culpability was reduced in light of his age and his low-level intellectual functioning, it was accepted in the course of the hearing that there was not an evidential basis for this argument to be made in light of the psychological report, and that these matters were more appropriately to be considered under the heading of mitigation. 17. Accordingly, having regard to GN, we are of the opinion that the sentencing judge did not err in placing the offending in the upper range of seriousness and the identification of a 12-year term of imprisonment fell within his margin of discretion. Mitigation 18. The appellant also submitted that the sentencing judge did not have appropriate regard to the mitigatory factors present in the case. 19. The sentencing judge reduced the headline sentence by one year and then suspended the final year of the sentence to encourage rehabilitation. In so doing, he considered the appellant’s lack of previous convictions; the impressive references which he provided to the Court; his work history; and the fact that he now accepted his guilt. The significant reduction which the appellant could have availed of had there been an acceptance of his guilt before the trial had commenced was not available to the appellant. It is also apparent that the sentencing judge had regard to the psychological report when considering the sentence to be imposed. 20. In light of the limited mitigation which was available to the appellant, it cannot be said that the sentencing judge erred in principle in failing to give the appellant any further reduction from the headline sentence. 21. While the appellant sought to rely on his age at the time of the offending and his limited intellectual capacity as outlined in the psychologist’s report, the fact of the matter is that the appellant was an adult when these offences were committed and had a realisation that this activity was wrong in light of the furtive manner in which the offending was conducted. 22. The Court is of the opinion that the reduction from the headline sentence of one year to reflect the limited mitigatory factors in the case fell within the sentencing judge’s discretion and does not reflect an error in principle. 23. Furthermore, the Court is of the view that the suspension of 12 months from the term of imprisonment imposed, rather than a greater period of suspension, was also within the sentencing judge’s discretion and does not reflect an error in principle in light of the limited evidence with respect to rehabilitation before the sentencing court. Conclusion 24. Accordingly, in circumstances where none of the grounds of appeal have been upheld, the Court will dismiss the appeal against sentence. Approved No Redaction Needed