NEUTRAL CITATION  IECCC 1
THE HIGH COURT
CENTRAL CRIMINAL COURT
[2010 No. 0094 CCDP]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Mr. Justice Garrett Sheehan delivered on the 2nd March 2012
[1.1] The accused was charged with two offences arising out of the same incident; namely the offence of sexual assault against C.M. contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001 and the offence of rape contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. On the 15th November 2011, the jury in the trial before the Central Criminal Court acquitted the accused of the charge of rape but found him guilty of the sexual assault of C.M.
 Factual background
[2.1] The circumstances in which the offence took place can be described as follows. The events occurred on the 24th January 2010. C.M. is the sister of E.M. who, at the time of the assault, was living with R.T., their young child and E.M's two children from a previous relationship. On the 23rd January, C.M. went to her sister E.M's house, with her seven year old son and three year old daughter, intending to spend the night with her and staying over at her home as was common practice. During the course of the evening, the children went to bed. E.M. and C.M. had some wine and R.T. and E.M's eldest son, J.M., went out socialising.
[2.2] At approximately 3am on the morning of the 24th January, R.T., J.M. and another friend returned to the house. They were drinking alcohol and chatting and at approximately 4am, E.M. went to bed, followed by C.M. about 4.45am. The bedroom in which C.M. was staying was the only bedroom on the ground floor of the house. Her two children were already sleeping in the double bed. She described getting into bed alongside her daughter and she described herself as being "sleepy drunk" having drunk one and a half bottles of red wine at that stage. C.M. then recalled that she must have fallen asleep and the next thing she remembered was someone inserting their finger in her vagina. At first she thought it was her partner but when she saw that it was R.T. who was beside her, she shouted "Stop" and pushed him away.
[2.3] R.T. left the room and C.M. went to J.M's room in a state of distress. A certain amount of commotion ensued with a lot of shouting and R.T. apologising for what had happened. C.M. returned to her own home and R.T. left his home for some days following the assault. Later that day, he sent text messages to C.M. in which he expressed his deep sorrow for what had happened and for the pain he had caused. R.T. accepted that he had digitally penetrated C.M. but suggested in a police interview following his arrest over a week later that he believed C.M. had been consenting. He did not give evidence at trial.
 Facts arising from the sentencing hearing
[3.1] C.M. is thirty-six years of age and resides with her partner and two children. She declined, for reasons of privacy, to engage in the process of making a victim impact statement but counsel for the Director of Public Prosecutions told the Court that she had attended with a counsellor and that the family have been devastated and torn apart by the actions of R.T. Counsel for the accused acknowledged on behalf of R.T. that he had committed a gross violation of C.M. and that this had resulted in a great deal of suffering, primarily for her, but also, in consequence, for his wife and the family in general.
[3.2] The accused is forty-one years of age and a self employed businessman. He is married to E.M. and they have one young son. He has no previous convictions and his good character, with the exception of his conviction for this offence, was emphasised to the Court, not only by D.M., a character witness called on his behalf, but also in three further testimonials presented to the Court by people who knew him well and were aware of his conviction. It is clear from this evidence that the apology made by the accused is a real one. He is deeply remorseful and profoundly regrets his behaviour that night. Prior to the offence, he was very much involved in local community matters, having assisted a number of people in developing and setting up small businesses, as well as being involved in the establishment of a local football club and training young people. He has withdrawn from the social activities since this happened because of the deep shame that he feels and, indeed, he and his wife have sold their home, where this assault occurred, and moved elsewhere. As stated on his behalf, the offence has had a serious effect on his own family life and career and his remorse and awareness of the suffering that he has caused is ever present.
 Principles applicable in determining an appropriate sentence
[4.1] In considering the appropriate sentence in this case, the Court is guided by the decision of the Supreme Court in the Director of Public Prosecutions v. M  3 I.R. 306 in which Denham .J. pointed out that any sentence imposed must be proportionate to the circumstances of the case, having regard to the nature of the offence, its effect on the victim and the circumstances of the convicted person. In a similar vein, the Court of Criminal Appeal stated in the Director of Public Prosecutions v. McCormack  4 I.R. 356 at p.359 that: - "Each case must depend on its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused."
[4.2] In deciding the appropriate sentence in respect of the accused, this Court adopts the approach set out by Egan J. in the Director of Public Prosecutions v. M  3 I.R. 306. Egan J. noted at p. 315 that:- "It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular offence should lie. The mitigating circumstances should then be looked at and an appropriate reduction made."
[4.3] In considering what factors amount to mitigation or aggravation in the commission of this offence, this Court has considered the judgment of Charlton J. in the Director of Public Prosecutions v. Wayne Drought  I.E.H.C. 310. This judgment considered the range of sentences of imprisonment in the context of rape offences. It also, however, considered the potential mitigating and aggravating factors in the commission of crimes in general and by extension in sexual offences. It is also to be noted that a combination of strong mitigating factors may justify a non-custodial sentence in some sexual offence cases. However, those factors are unlikely to stem from the nature or circumstances of the offence itself.
[4.4] This Court must consider the range of sentences applicable to sexual assault by reference not to one individual case but to the range of cases governing sentences in such cases and then exercise its own discretion, having regard to all the circumstances of this particular case. This Court has considered the judgment in the Director of Public Prosecutions v. T W.C. (Unreported ex tempore, Court of Criminal Appeal, Finnegan J., 14th October 2010) which sets out the criteria which a sentencing judge in a sexual assault case should address in sentencing a convicted person. The Court has considered the judgment in the Director of Public Prosecutions v. Thomas Byrne (Unreported, Court of Criminal Appeal, 31st January 2000), in addition to the judgement of that Court in the Director of Public Prosecutions v. P.O 'C. (Unreported, Court of Criminal Appeal, Denham J., 5th November 2009) in which Denham J. set out the general principles to be considered in sentencing for sexual offences.
[4.5] The gravity and seriousness of the offence for which R.T. has been found guilty of by a jury is clear. The maximum sentence is one of ten years imprisonment. The Court also notes the decision of the Court of Criminal Appeal in the Director of Public Prosecutions v. G. D. (Unreported, Court of Criminal Appeal, McCracken J., 13th July 2004) which described the placing of a person on the Sex Offenders Register as a punishment in itself. This Act places a number of obligations concerning reporting to An Garda Siochana by a convicted person, including any absence from his permanent residence for a period of more than seven days and a duty to tell the gardai where he is going and what address he will be staying at when absent. Failure to comply with this obligation leaves a convicted person liable to further prosecution and, if convicted, to further imprisonment.
[5.1] This Court has considered the submissions of counsel for the defence and counsel for the prosecution, who told the Court it was the Director of Public Prosecution's view that this offence comes at the higher end of the scale for such offences. As C.M. has chosen not to put a victim impact statement before the Court, the Court is, in that regard, limited in determining the effect of the offence on her. In assessing the seriousness of this particular offence and determining where on the sentencing range it should be placed, this Court is of the view that it falls within the lower level of the middle range. The relevant factors taken into consideration include the nature of the assault, the circumstances in which it occurred, its duration, the absence of any gratuitous violence or indeed violence beyond that inherent in the crime itself, and the degree of distress caused to the victim, as well as the lasting impact on the victim. Taking all relevant circumstances into account in considering the range of appropriate sentences, the Court will impose a sentence of four years imprisonment. However, as noted by Professor O'Malley at p. 459 of his work, Sentencing Law and Practice (2nd Ed., Thomson Round Hall, Dublin, 2006), in exceptional circumstances a serious offence may result in a suspended sentence because of strong mitigating factors.
[5.2] It is the Court's view that this is one of those exceptional cases where the strong mitigating factors make it appropriate for the Court to impose a suspended sentence and, accordingly, the Court will impose a suspended sentence of four years imprisonment on the accused entering into a bond to keep the peace and be of good behaviour to all citizens of Ireland in his own bond of €5,000 for a period of four years. Even though the sentence is suspended, R.T. remains on the Sex Offenders Register and this Court will make an order that he remain on the Sex Offenders Register for a period of five years from the date of his conviction in this Court in accordance with s.8 (3) (d) of the Sex Offenders Act 2001.
[5.3] Section 28 of the Sex Offenders Act 2001 obliges the Court to consider whether to impose a sentence involving post-release supervision. In considering this matter, the Court has regard to a number of factors including the need for supervision of the offender, the need to protect the public from serious harm, the prevention of the commission of further offences and the need to rehabilitate or further rehabilitate the offender. None of these concerns are alive in this case and, for that reason, no such order will be made.