There is a risk that sex offenders who use pornography could claim that they are vulnerable and a victim of a “societal problem”, a barrister for the Director of Public Prosecutions (DPP) has told the Court of Appeal.
The submission was made on Thursday in the State’s appeal against the wholly suspended sentence handed down to a man who admitted raping his eight-year-old niece when he was 14 after he had viewed pornography. The DPP argues that the sentence was unduly lenient and should be replaced with a lengthy custodial term.
The man - who is now 21 but cannot be named to protect the identity of the victim - had pleaded guilty to sample counts of rape and sexual assault at various dates and locations in the south of the country between May 2016 and April 2019.
At the Central Criminal Court last April, he also pleaded guilty to a single count of using technology to facilitate the sexual exploitation of a child.
The man later claimed he had been acting out scenes from pornographic material he had viewed when he carried out the attacks. He also said he had been watching pornography since he was nine years old.
Imposing a non-custodial term, Ms Justice Deirdre Murphy said the case had highlighted the dangers posed to society of children accessing explicit adult material.
Lenient
The DPP, however, has appealed Ms Justice Murphy’s sentence on the grounds that it was unduly lenient.
On Thursday at the Court of Appeal, John Fitzgerald SC, for the DPP, said “matters came to light” after the complainant’s mother discovered explicit messages to her daughter which had been sent by the respondent via a gaming app.
The court was also told the man had threatened his victim with similar assaults against her younger sister if she told anyone about the attacks.
Mr Fitzgerald said it was “the wholly suspended aspect of the matter that the Director has a concern with”.
He said it was “impossible to reconcile” the five-year suspended term with custodial sentences handed down in similar cases and that the DPP was looking for a term of imprisonment “in the region of nine years”.
The assertion by Ms Justice Murphy that pornography was a societal problem and something “we have to get to grips with” had, counsel said, mitigated the respondent’s “blame for the offending”.
“As a matter of principle, the Director has a concern with that,” Mr Fitzgerald explained.
He said users of pornography who were before the courts could now claim “I am vulnerable and a victim of a societal problem”.
“It is not explicitly said but that is how I read it,” Mr Fitzgerald told the three-judge court.
Vulnerable
Elizabeth O’Connell SC, defending, said her client has been diagnosed with autism and required treatment for the condition, adding that “treatment outside of prison is better than treatment in custody”.
Ms O’Connell also told the court that background reports requested by the sentencing judge indicated the man was “psychologically vulnerable” with “poor resources for coping with life’s difficulties”.
Describing her client as a “young person with limited ability to cope with adversity”, she noted custody was “not the same for someone who is young and developing into an adult”.
Ms O’Connell also told the court that there had been four different sentencing hearings and that Ms Justice Murphy’s request for background reports before imposing her non-custodial term had been “entirely rational”.
“This suspended sentence was on the table from the first date,” she added.
During submissions, Court President Mr Justice George Birmingham observed the sentence imposed by Ms Justice Murphy had been “out of the norm”.
“Entirely suspended sentences are very rare indeed,” said Mr Justice Birmingham, who was sitting with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy.
Mr Justice Birmingham also noted the sentencing judge’s observation that a pre-mitigation sentence of 10-12 years would have been appropriate if the offending had been carried out by an adult.
Judgment has been reserved.