In its first ever case dealing with a sex offender who is the subject of a post-release behaviour monitoring order, made under legislation introduced last year, the Court of Criminal Appeal (CCA) yesterday refused an application by the DPP to increase the offender's 18-month custodial sentence.
The man, aged in his early 30s, had pleaded guilty to aggravated sexual assault of a 13-year-old boy in Co Louth on August 7th, 1999.
He was jailed and made subject of a five-year post-release behaviour monitoring order when his case was dealt with at the Central Criminal Court on April 26th last.
The DPP appealed against the 18-month custodial sentence as unduly lenient. At the CCA yesterday Mr Roderick O'Hanlon SC, for the DPP, argued that the custodial term failed to give due weight to the gravity of the offence and the impact on the young victim.
This was a serious sexual assault which was perpetrated in circumstances that caused humiliation and degradation of a grave nature to the boy.
Counsel said the accused, even after admitting his part, had told a probation officer there was an element of consent involved. This attitude towards the boy was of serious concern, and insufficient weight was attached to it by the trial judge, Mr O'Hanlon said.
Mr Felix McEnroy SC, for the man, argued that his client's early admission had spared the boy the trauma of a court appearance and giving evidence.
There was also no premeditation of the offence, and a significant factor was that excessive amounts of alcohol and cannabis had been consumed.
The man also had lost his significant parent at an early age and was brought up by several different people.
Counsel added that the man was under post-custodial supervision as a result of being made the subject of an order under the Sexual Offenders Act, 2001. If he did not comply with that order, he was liable to the processes of the court. The CCA could not ignore that fact.
After considering the submissions, Ms Justice McGuinness, sitting with Mr Justice Peart and Mr Justice White, said the DPP had failed to establish that the trial judge had made an error in principle in determining sentence.