D.P.P.-v- James Kennedy, [2008] IECCA 52 (2008)

Docket Number:70/08
Judge:Kearns J.

COURT OF CRIMINAL APPEALKearns J.Birmingham J.Edwards J.[C.C.A. No. 70 of 2008]BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTANDJAMES KENNEDYAPPLICANTJUDGMENT of the Court delivered on the 14th day of April, 2008 by Kearns J. On 26th November, 2007 the applicant pleaded guilty to two counts of indecent assault in the Central Criminal Court. The first offence occurred on a date unknown between January, 1972 and December, 1975 at an address in Dublin. On that occasion the applicant had entered the bedroom of his wife's niece where he undid his trousers and exposed himself to her. His niece was then only nine or ten years of age. The applicant himself was born on 14th June, 1922 and was thus in his fifties when this offence occurred.The second offence, also one of indecent assault, similarly occurred between the same dates when the applicant again entered the complainant's bedroom, put his hand under the bedclothes and fondled the complainant in and about the genital area.A statement of complaint was made in 1999. The applicant was interviewed in 2000 and charged in 2001. Relief by way of judicial review proceedings seeking prohibition was refused in October, 2006.In respect of the first of the said offences, the applicant was sentenced to six months imprisonment. In respect of the second offence, the applicant was sentenced to nine months imprisonment, such sentence to run concurrently with the six month sentence.The present appeal was given an early date for hearing by this Court by reason of the fact that the sentence might have expired before the appeal was heard, and also because of the applicant's advanced years and rapidly deteriorating state of health.In the course of the appeal various arguments on behalf of the applicant were advanced which may be summarised in the following manner:1. While the Central Criminal Court deals with grave cases, not all cases before that court are grave. On behalf of the applicant, Mr. Gageby S.C. argued that the present offences were nowhere near the higher end of the scale. He submitted that the first offence was just about on the cusp of criminality. The second offence could hardly be characterised as falling into the middle range of such offences, particularly having regard to the fact that the same occurred at a time when the law did not provide for intermediate offences such as is now provided for in sections 2 and 3 of the Criminal Law (Rape) (Amendment) Act, 1990. Mr. Gageby...

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