DPP v J.M.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Ní Raifeartaigh
Judgment Date19 Oct 2020
Neutral Citation[2020] IECA 285
Docket Number[237/19]

[2020] IECA 285

THE COURT OF APPEAL

Edwards J.

Kennedy J.

Ní Raifeartaigh J.

[237/19]

BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECTIONS
PLAINTIFF/RESPONDENT
AND
J.M.
DEFENDANT/APPELLANT
JUDGMENT of the Court delivered on the 19 th day of October, 2020 by Ms. Justice Ní Raifeartaigh
Introduction
1

This is an appeal against severity of sentence. The appellant was sentenced on the 18 th October 2019, having pleaded guilty to a number of sample counts on the indictment on a “full facts” basis. On the three counts of “s.4 rape” (counts 16, 20 and 25: Rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990) he received a sentence of 10 years imprisonment on each count (to run concurrently) with the final two years suspended on conditions. The sentence was backdated to the 23 July 2019. The conditions were that he undergo an assessment while in prison for the Better Lives Programme; engage with the prison-based psychology service upon release; be under the supervision of the Probation Service for a period of two years upon his release; complete victim-focused work as directed by the Probation Service; and address all aspects of his offending behaviour as directed by the Probation Service.

2

The remaining counts were “taken into account” by the sentencing judge (counts 1, 2 and 3: Indecent assault contrary to Common Law and as provided for by s.62 of the Offences Against the Person Act 1861; counts 10, 15, 26, 30, 36 and 44: Sexual Assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990.)

Factual Background
3

The appellant is the older brother of the injured party by almost 4 years. He carried out the offences over a period of 10 years, from 1988 to 1997. The appellant was almost 14 years old when he started sexually assaulting his younger brother, and almost 24 when he stopped. The injured party was almost 10 years of age when the abuse started and almost 20 years of age when it ended.

4

The injured party made a statement of complaint to Gardai in which he described the sexual abuse as having taken place between 1988 and 1993. The offending behaviour took place at the family home in Cork City, in the sitting room or the shared bedroom of the appellant and the injured party. He said that there was rubbing of the genitals and that he was subjected to performing oral sex on the appellant and vice versa. He said that on a few occasions the appellant attempted to anally penetrate him but was unsuccessful. He said that it was very frequent over the period; “It would have been happening a few times a week sometimes, but I can say it was regular and consistent over a number of years… I think it happened a lot. I know it did. It went on too long, whenever he got a chance. When people were in bed, it happened a lot. It didn't matter whether it was day or night.”

5

He also said that on one occasion the appellant performed oral sex on him at his uncle's bar (sometime between July 1990 and January 1991).

6

The appellant was interviewed on a voluntary basis at Mayfield garda station on the 5 th August 2017 where he made full admissions, and again on the 28 th January 2018 on a voluntary basis, when he made further admissions. His admissions covered incidents of abuse disclosed by him during an interview in the context of a Tusla investigation (the interview being conducted by Mentor Forensics), which amounted to admissions that he had continued to abuse his brother by masturbating him while he was asleep during the period 1993-7. His brother, the complainant, had only been aware of the abuse during the period 1988-1993.

7

Having fully co-operated with the Garda investigation and, as noted, having brought to light certain offences which were not previously known even to the injured party, the accused entered an early plea of guilty.

Victim Impact Statement

8

The evidence established that the effect of the offending behaviour on the injured party was profound. A victim impact statement was read aloud by the injured party detailing the very severe effect the abuse had on him. At the time of the proceeding, the injured party was 41 years old and recently married. He stated that the abuse by his brother was “a long, horrendous and sometimes surreal journey” which he had been on for the last 30 years of his life. He said that when he was a toddler his brother was his hero, but then he became the “biggest villain” who had used him as a sexual object. He told the Court that his life went on a “rapid downhill spiral”. He said that the offending behaviour made him feel sick and that he turned first to drugs and then to self-harm as well as alcohol. He hated and blamed himself for what his brother was doing. He began to pull away from family and friends and had a horrible secret that he could not tell anyone and felt very alone. He was violent to his mother and in the family home and was screaming out for help in the wrong ways. He said that he had felt like his head was full of thoughts and voices and disgusting flashbacks and confusion and he imagined drilling a hole into his head to release the pressure. He also said that he wanted to die and had suicidal thoughts. He had scars on his wrist from suicide attempts which were constant reminders of the bad times

9

The injured party then explained that when his son was born, it was the happiest and proudest time of his life but that his happiness did not last long because he was afraid to touch his son, to bathe him or to give him a kiss. The sexual abuse by his brother had distorted his thinking. The injured party said that he had to overcome addictions but was now clean and sober for fourteen years and had support from counsellors, friends and members of the family. He said that the love from all these people and his wife and his son had kept him going and brought him to a new place in his life.

The Respondent's Personal Circumstances
10

The appellant was in his forties at the time of the guilty pleas, his date of birth being the 6 January 1974. He is a separated father of two children and works as a mechanic. He has no previous convictions but had another case of sexual abuse pending at time of sentence, relating to matters occurring in 1988. He had pleaded guilty to eight counts of indecent assault at Cork Circuit Criminal Court in the May sessions of 2019 and was awaiting sentence at the time of the present case. Those offences were in relation to a five-year-old boy who lived in the same estate as they did, and the offences came to light around the same time as this case.

11

As a result of his disclosures, he was removed from the family home and his wife subsequently separated from him.

12

A report was put before the court from a forensic psychologist. This report indicated that the appellant had only in recent times acknowledged to himself that he was homosexual in his sexual orientation. It noted that he attributed his abuse of his brother (and the other boy) to his confusion or difficulties around his sexuality. He had engaged in a number of heterosexual relationships in his life and indeed had married but was now separated from his wife. He was aware of his sexual orientation or tendencies at a very young age but was ashamed to acknowledge them. The psychologist said that his current coping method was ineffective, and he was susceptible to being overwhelmed and at risk of emotional collapse. His level of intellectual function falls within the borderline range and his overall thinking and reasoning abilities are exceeded by 75% of his peers. The risk assessment placed him at average risk for future sexual offending for reasons including his failure to appreciate the power differential between himself and his younger brother at the time of...

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