DPP v Kenneally

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 22 February 2018
• Neutral Citation: [2018] IECA 274
• Docket Number: [72/2016]
• Court: Court of Appeal (Ireland)
• Date: 22 February 2018

[2018] IECA 274

Court of Appeal

Birmingham J.

Birmingham J.

Mahon J.

Edwards J.

[72/2016]

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Bill Kenneally

Appellant

Sentencing – Indecent assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Kenneally, appealed to the Court of Appeal against severity of sentence. The sentence under appeal was a cumulative sentence of 14 years and two months imprisonment imposed on 19th February, 2016. The cumulative sentence was made up of ten individual sentences of 17 months, each directed to run consecutive to the others. The sentences were in respect of counts of indecent assault committed against ten complainants and related to events that occurred between January, 1984 and December, 1987 at the time when the complainants were teenage boys, aged between 13 and 17 years. The appellant contended that the sentences imposed were grossly excessive and disproportionate, submitting that the trial judge manifestly failed to approach the question of sentencing and the need to impose sentences in accordance with the constitutional requirement of proportionality in an appropriate manner and in a manner which afforded adequate weight to the particular and unique circumstances of the prosecution and what it was contended were very significant mitigating factors which existed in respect of the appellant.

Held by the Court that the sentence imposed, while perhaps at the very outer limit in terms of severity, did not fall outside of the available range.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 22nd day of February 2018 by Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentence under appeal is a cumulative sentence of 14 years and two months imprisonment imposed on 19th February, 2016. The cumulative sentence was made up of ten individual sentences of 17 months, each directed to run consecutive to the others. The sentences were in respect of counts of indecent assault committed against ten complainants and related to events that occurred between January, 1984 and December, 1987 at the time when the complainants were teenage boys, aged between 13 and 17 years. The appellant contends that the sentences imposed were grossly excessive and disproportionate, submitting that the trial judge manifestly failed to approach the question of sentencing and the need to impose sentences in accordance with the constitutional requirement of proportionality in an appropriate manner and in a manner which afforded adequate weight to the particular and unique circumstances of the prosecution and what it is contended are very significant mitigating factors which existed in respect of the appellant.

2 It must be said that there are a number of unusual features of the prosecution and the current appeal. Those features relate to the scale and nature of the offending but also to the circumstances in which untoward activity on the part of the appellant came to light and what followed on from that.

3 The Director accepts that the sentence imposed in this case was indeed a very lengthy one but says that the offending involved was on an extraordinary scale. In those circumstances she says the sentence cannot be seen as unduly severe, if regard is had to the scale and seriousness of the offending involved, with particular reference to the large number of injured parties who were abused and the fact that the abuse was repeated, persistent and premeditated and that it has had a devastating impact on victims. She points to the fact that the abuse occurred in circumstances where the appellant was in a position of authority vis-à-vis the victims because of his involvement in their sporting activities, and that the offending involved extensive exploitation, grooming and predatory conduct leading up to the abuse. She says that the accused also engaged in a calculated strategy to manipulate and control the injured parties which not only rendered them powerless and in fear of him during the time of the abuse but also rendered many of them incapable of revealing the abuse for many years thereafter.

4 The appellant says that his reaction when indications of untoward conduct on his behalf first emerged, in admitting wrongdoing, seeking counselling and assistance, withdrawing from his sporting activities and cutting himself off from contact with children is very striking to the extent of being quite exceptional.

5 Having regard to the fact that there are aspects of the case which both sides say set it apart from other cases which the courts have dealt with, it is necessary to say something more about the factual background.

6 So far as the details of the offending are concerned, this occurred at a time when the appellant was in his mid-thirties. The Director points to the fact that in almost all cases the abuse of an injured party was repeated and in some instances involved frequent abuse persisting over the course of the three-year period 1984 – 1987. The Director says that while the pattern of abuse revealed included sexual touching and masturbation of a type which is not unusual in cases of this sort, that the abuse here went very much further than is usual. It did, it is accepted, fall short of anal penetration but included incidents of oral penetration, many incidents when an injured party was required to masturbate the appellant to the point of ejaculation, numerous incidents of the appellant requiring teenage boys to tie him up or handcuff him when he was naked and then to masturbate him and included repeated incidents of sexual humiliation of the boys themselves. In many instances they were restrained by handcuffs or ropes. In some cases the tying up took place in outdoor locations. It sometimes involved the accused taking photographs of the boys with a Polaroid camera and then using the instantly developed photographs to coerce or blackmail the boys into silence and into complying with further abuse. The Director points to the fact that the abuse was preceded by extensive and pre-meditated efforts at grooming. This involved the appellant deploying a range of inducements likely to be of interest to young teenage boys. He was a basketball coach in a club where some of the boys were involved and was also known to them as a coach or organiser of tennis and soccer. He utilised this to befriend, socialise with and access the boys. The appellant as an older person and car owner was in a position to supply transport for the boys to sporting and other outings. He frequented placed where young people hung out to drink. There and elsewhere he provided the boys with very considerable amounts of alcohol. He kept alcohol in the boot of his car for this very purpose. He himself did not consume alcohol. He provided the boys with cigarettes, he brought them on trips in the car, brought them fast food and showed some of them pornographic movies as a prelude to the abuse. He bought some of them soccer kits and also gave them sums of money as part of this exercise. The sums in question would have been seen as relatively large amounts for young people to have in the 1980s. It is appropriate to refer to what the Court was told about the abuse of each individual complainant.

7 The summary that follows is taken from the written submissions filed on behalf of the Director.

(i) Complainant no. 1 – A.B.

• Counts on indictment: 1 – 22 inclusive

• Period of offending: November, 1984 – December, 1986

• Age at time of abuse: 14 – 17 years

• Victim impact evidence given in Court

• The appellant began to socialise with A. and some friends. As a practical joke, at one stage, they smeared the appellant's car with Sudocream. The appellant decided to ‘punish’ them by initiating the abuse. He had them come to his house and to strip. He gave them soccer kits to wear. He blindfolded A. By tying wire from an exercise bar in the house to A.'s shorts and around A.'s legs the appellant imposed excruciating pain on A.'s genitals until A. took off his shorts. The appellant then took a photograph of A. and squeezed his testicles to make him smile in the photograph. The abuse later progressed to involving penile penetration of the injured party's mouth. The appellant also required A. to perform oral sex on him and to masturbate him. He assaulted A. in the car on occasions and that also included oral penetration. On one occasion, as part of the process of exercising control over the boy, the appellant abandoned A., who was then 14 years of age, in a dark wood on a winter's night having handcuffed him to a tree fully clothed. On another occasion, A. and other boys were required to handcuff the appellant to his bed and to masturbate him to ejaculation. The appellant would pay A. money. On occasion he would threaten A. with the photograph taken on the first day, waving it in his face, threatening him that if he told anyone that he had a picture available in order to show that A. had enjoyed it. The abuse proceeded on an almost weekly basis for three years.

In his victim impact evidence A. told of all the difficulties he had forming relationships in later life, how he felt dirty all the time and how he was constantly showering to remove stains of the abuse. He put on a happy outer surface but felt wholly inadequate. His studies suffered which caused great difficulties in his home. He felt very alone carrying the secret of the abuse. The abuse meant that A. lost control of his life. During the abuse he was always under the appellant's control. If he did not meet the regime put in place for him he would be threatened with unspecified punishment at some point in the future, leaving A. tortured about what would happen. Part of the exercise of controlling the boy meant that the appellant...