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A DUBLIN MAN jailed for having sex with his mentally impaired cousin, has had his five year sentence reduced to an 18 month jail term on appeal.
The 53-year-old Dublin man, who cannot be identified for legal reasons, had pleaded not guilty at Dublin Circuit Criminal Court to eight counts of unlawful sexual intercourse with his mentally impaired female cousin at different locations between 1998 and 2003.
He was found guilty by a jury and sentenced to five years imprisonment on each count, to run concurrently, by Judge Patricia Ryan on 8 February 2013.
His trial court heard that he had admitted to being in a sexual relationship with his female cousin but claimed to have no knowledge that she was mentally impaired.
The married man and father-of-one had been granted bail in July 2013, pending his appeal against conviction, which was dismissed last month.
He then presented himself to gardaí on the southside of Dublin for the purpose of being returned to custody.
He successfully appealed his sentence today and was accordingly re-sentenced to three years imprisonment with the final 18 months suspended.
Giving judgment, Mr Justice Alan Mahon said the Court of Appeal had viewed video recordings of the injured party’s evidence including the “limited extent” to which she was cross examined.
Mr Justice Mahon said the injured party was “quite articulate”, was able to give clear and precise answers to questions, and had good recall and memory going back a number of years.
The injured party had cared for her parents in their elder years and was trusted by her siblings to do so, the judge said.
She was capable, to a degree, of independent living and was able to travel by bus and train on her own, the judge said.
She had also had a number of boyfriends in the past and had had one for about five years at the time of the trial.
Mr Justice Mahon said it struck the court that she was a person with “a mild mental impairment” but “of course” her circumstances were well known to her cousin.
He was not mistaken as to her mental capacity, the judge said, and the fact that he abused her made this case a serious one.
The court was satisfied that the judge had erred in treating her mental impairment as an aggravating factor, the judge said, as had been submitted his barrister, Patrick Gageby SC.
Mr Justice Mahon said mental impairment constituted an ingredient in the offence and it must, by definition, be present.
But the mere fact that she was mentally impaired could not be treated as an aggravating factor in itself, he said.
The fact that she was functioning at a relatively high level was something that was required to be taken into account in assessing the seriousness of the offence and it was “unclear” that it was taken into account by the trial judge.
The more mentally impaired, the more vulnerable a person is and the greater the culpability of the offender, Mr Justice Mahon said.
Likewise, the less mentally impaired, the less culpable the offender.
Furthermore, the judge did not locate a starting point for the offence on the scale of gravity and did not indicate what allowance was being made for mitigation.
If, having allowed for those mitigating factors, Mr Justice Mahon said, it must reasonably follow that the starting point determined by the judge was considerably higher than five years.
He said the court was also concerned that the judge did not attach significant weight to the manner in which the man participated in the trial.
Her account had not been challenged and her cross examination was conducted in a humane manner having regard to her vulnerability, the judge said.
These were matters which could have significantly reduced the stress of proceedings for the complainant and it “deserved special recognition in sentencing”, he said.
As well as the man himself, Mr Justice Mahon said barristers Caroline Biggs SC, for the DPP, and Remy Farrell SC, for the then accused man, ought to be “complimented in this regard”.
Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, resentenced the man to three years imprisonment with the final 18 months suspended.
The sentence was backdated eight months to take account of time served.
He was required to enter into his own bond of €100 to keep the peace and be of good behaviour for a period of three years. When asked if he undertook to be so bound, he said “I do”.
As obliged by law, Mr Justice Birmingham told the man that he was on the sex offenders register and failure to comply with certain obligations attached to that, he would be committing a further offence.
“I understand, thank you,” he said.
In his unsuccessful conviction appeal, his barrister, Patrick Gageby SC, submitted that the trial judge erred in allowing the victim to give evidence via video link.
Mr Gageby said this amounted to “pre-determination” and once the trial judge decided that she could not give evidence in court, it was a “foregone conclusion”.
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If 3 days is too much to wait before ending a pregnancy, I think we are entering a very sad state indeed collectively as a nation.
@Niall Murphy: speak about yourself. Don’t bother speaking about the nation. In the meantime, good work PBP.
Don’t expect any logic or reliable stats. here. Full steam ahead for the agenda.
@Pato: Which agenda is this now, and how does it tie into all the other agendas?
Genuinely curious about the “universally” point as to who they asked? Was it women who went through with the abortion or did it include those who decided against it after the initial consultation. Tried to get exact figures unsuccessfully as to how many women did not come back to the second consultation, and have heard various figures in the media, many of which were high which would suggest this measure actually works in giving people time to reflect on their choice.
@Longlin: Except that’s not what it indicates.
You can’t extrapolate that the reason they didn’t return wasn’t that they “changed their mind” unless you also have the data around multiple other issues.
Because it’s the other issues that cause all the problems.
Many places in Ireland don’t have easy access to a GP providing the service and if a person needs to travel that’s a burden. Then factor in travel costs, childcare, job commitments, family commitments, the possibility of being in a controlling, abusive relationship.
All of these factors (and more) can prevent the person attending the second appointment.
THAT’S the unwarranted burden being put on those trying to access abortion.
@Tricia G: Please share all the data that purportedly informed O’Shea’s campaign
When I voted in the referendum it wasn’t for these kind of changes. I do not agree with abortion but I voted yes for the women in crisis and not on demand but on the wording and legislation at the time. I do not want to see abortion on demand we were told it would be a small amount that would need abortions but we have has something in the region of 18,000 abortions that’s 18,000 citizens the future of our country. If we had another referendum in the morning I’d vote NO, as I do not want to see these changes introduce that these people are trying to push on the Country.
@silvery moon: What you mean is you want to take reproductive health care back out of the hands of the patient and their doctor because you’ve changed your mind now that you’re under no peer pressure. Just say that.
@silvery moon: well too late now, you can’t change the vote because you don’t like how it’s progressing. That’s life and abortion will have to keep progressing with the times.
@Joe Philips: Contradiction in terms: reproductive health care.
O’Shea says:
‘..amending the abortion act would not represent a “creep towards a more progressive termination of pregnancy regime”. Really? That’s exactly what it means. What people are complaining about is that abortion is available in only 11 out of 19 maternity hospitals (the irony of), also that there’s still a 3 day wait after consultation with a GP. Is this it? Ireland is a fairly small country and outside of the very rare occasions where there’s a medical emergency, surely waiting 3 days and maybe travelling to another county on this small island is not too much to ask. There are currently 500 GP in Ireland carrying out termination of pregnancy. People have a choice that they wanted, move on. There’s plenty more pressing issues to attend to. And yes, I do have a say in the matter, it was put to a vote to all citizens of the state, so it is my business.
@Nick Cahill: See this comment here, this comment is made from a place of ignorance because they’ve never once had to even consider the reality of what’s involved.
Not once has this person considered the many barriers people can have put in their way.
Many places in Ireland don’t have easy access to a GP providing the service and if a person needs to travel that’s a burden. Then factor in travel costs, childcare, job commitments, family commitments, the possibility of being in a controlling, abusive relationship (how do you hide two trips and the abortion from someone constantly checking up on you?).
All of these factors (and more) can prevent the person attending the second appointment. Not to mention what’s involved in the actual abortion.
Maybe you should accept that people that access abortion know what they want and stop infantilising them!
@Tricia G: People of all backrounds have proven over and over again that they make infantile decisions i.e. your decision to label everyone who wants sensible abortion access as wanting “forced birth policies and only white babies”.
If one baby is saved due to a cool off period its worth having. You have 14 days to reconsider who purchase electricity from! Next stop is 3rd trimester abortions or do you support that already?
@Simo: “Next stop is 3rd trimester abortions or do you support that already?” – Do you even know what a 3rd trimester abortion is and when they come about? Or are you just fearmongering?
@Tricia G: you can never answer a simple question. You always have to go round and round and round and back to your narrative. Some people don’t believe in abortion ( I’m one of them) and some people (like yourself) will do anything to make sure they can have one no matter the cost. Both sides will always buttheads but we voted and abortion became legal and I’ve accepted that and it’s what the people wanted but you want to even get rid of a period to reflect that maybe after a few days they might change their mind. If it was up to you you would make sure a woman could walk in anytime before the birth and get an abortion.
@anthony hilton: “If it was up to you you would make sure a woman could walk in anytime before the birth and get an abortion.” – Did I say that? No
But any decision should be made in conjunction with their doctor, not someone without any understanding of situation leading to an abortion happening post viability.
@Tricia G: absolutely, we need trained professionals in this field to support the ladies who want to have one. I can’t imagine what it’s like for any lady to be in the position to want an abortion. There needs to be more help to convince them that maybe this isn’t the answer but I understand sometimes there is no choice. I will always stand my ground on this and I completely understand when people say I shouldn’t have an opinion on it because it’s a woman’s decision.
@Tricia G: Believe me, I’m far from i gnorant, you know nothing about me, my background, nor why I make my comment. You make assumptions based on your own prejudices which I find abhorrent. Again, as I said, a monumental decision such as choosing to terminate a pregnancy makes everything else insignificant. My comment is not to patronise people but to be factual. Your comment by contrast, aims to do the former.
@Simo: do you think any woman takes this decision lightly? If she has made the decision to go through the abortion, she is entitled as a grown woman to be allowed go through with it at her earliest convenience. People do not change their minds about these things, if you’ve made the appointment, you’ve accepted the fact that this is the best thing to do in an awful situation. You aren’t saving babies, you’re just prolonging the woman’s suffering. Stop mansplaining.
@HAC: How can you possibly say that people “do not change their minds about these things”? You have no idea if people change their minds, or how many might change their minds. I’d bet my house that at lease some people have and do change their minds on this.
@Dancey McDonagh: I know a lot of women who have had abortions. None of them regret their decision or changed their minds. They all have said they wished it hadn’t happened but they do not regret the decision they made at that time. So yes I’m pretty sure if a woman has made the decision to go through with it, she is pretty firm in her decision.
@HAC: So because you know some women etc. etc., this means all women are 100% decided on their course of action when they first visit for abortion services?
Sound logic.
@Dancey McDonagh: and how many do you know who have had one? Or have changed their mind about having one? I’ll wait with bated breath for your answer?
@HAC: Jesus, that’s quite juvenile to argue your point on how many women who have had abortions either of us may or may not anecdotally know. You should maybe cop yourself on.
@HAC: how do they live their lives after aborting a baby it has to effect them & some i know regreted it but to late
@Sheila McNulty: yes and that’s on you. I’m sorry you regret yours but my friends and people I know who had them, didn’t. Everyone is different. Just because you felt that way don’t expect everyone too.
@Dancey McDonagh: yup, knew you were typical mansplaining to us all when you clearly know nothing about the subject and don’t even bother to educate yourself by asking WOMEN, the only ones who have to go through it and deal with the aftermath. But don’t worry keep bleating on as if you know something on the subject but can’t even answer a simple question.
@HAC: anyone who uses the term ‘mansplaining’ without sarcasm is in the same category of irrational bullies who say things like ‘stay in your lane’ or ‘check your privilege’ or accuse people of ‘cultural appropriation’ and can be dismissed just as handily.
Nobody actually voted for this. The vote was about legalisation of abortion and after a waiting period. They cannot change this and claim it’s what the public want or asked for.
Il be watching very closely. Be on notice
@Barry Donnelly: What you actually voted for in the 36th amendment was to change Article 40.3.3 of the Constitution to read “Provision may be made by law for the regulation of termination of pregnancy.”
@Joe Phillips. It is my contention that way too much of our recent and currently proposed legislation is agenda or interest group driven. This is not an appropriate forum for detailed debate but in support of my position I point to the legislation to put alcohol behind swinging doors. Worse than useless in my opinion.
In respect to the discussion on the review of abortion legislation I am reacting to Chorus from the usual suspects to abolish the three day period. I personally don’t care one way or the other but I detect a sustained campaign to achieve this – hence this is the agenda.
@Pato: Yeah, it’s an Agenda. An Agenda to lessen the burden on those that wish to access abortion.
By your definition anyone pushing for a change in anything is an Agenda.
“Agenda” isn’t a bad word.
@ Joe Phillips on here and others on other platforms please explain how you equate abortion with reproductive health. I do not see the connection.
Name one other elective, life changing, medical procedure that is always carried out on the day it is requested. Just one …
Personally not against removing the 3 day wait but if I had been a no voter then I would feel betrayed. Will anyone on the unfashionable side ever compromise again if this happens?
@Dan Dare: Speaking as a ‘No’ voter I don’t feel betrayed. I expected this to happen, even if I’m not happy.
However if I was one of the so-called ‘reluctant Yes’ voters then I would feel betrayed.
@Ross Nolan: Yes. Well .put.
I may be the only person in the country to think that the present law is exactly right. I would rather leave it as it is.
There a squirmy old bunch in government who have no interest in dealing with anything controversial. They would agree if asked by the EU to do so. Best boys in class.
Pagans Before Prophets
@Thomas Sheridan: Drunk?
Courage? They need to do the job they are over-paid to do. If they can’t then call an election. The people decided on this matter already.
Good.
I see certain people are very angry about this. That is also good.
Abortion should be increased to 48 months.
The government should make it mandatory for new parents to pass an comprehensive parental test to see if they are fit to be parents and have the means to support them. Otherwise mandatory abortions.
@Smithweiser: mandatory abortions up to 6 months post natal! We need it now!
While I respect the rights of women, I don’t agree with this abolishment if the mandatory three day wait. In those three days, it may give some…just some second thoughts. That one can join/purchase something and be given a months cooling off period if one wishes to change their mind. But noooo…..
have your say