Totality of sentences for 1978 indecent assaults not considered by lower courts, Supreme Court finds

Judges today cannot be expected to regard sexual offending against children in the same way as a judge 40 years ago, court hears

The Supreme Court has ruled that the lower courts fell into error in failing to consider the totality of sentences imposed on a man convicted four years ago for several indecent assaults committed in the summer of 1978.

The man, who groomed and sexually abused an 11-year-old boy, was given consecutive sentences of 21 months for each of five counts of indecent assault, totalling eight years and nine months. The trial judge suspended the final 21 months of this, while an appeal court extended the suspended part of the sentence to 33 months.

Giving judgment on behalf of a five-judge Supreme Court on Thursday, Ms Justice Iseult O’Malley said the Court of Appeal erred in principle in the sentencing appeal because it did not explain or rationalise the overall sentence, including the suspended portion.

It is up to the Supreme Court to resentence the man, she said. A resentencing hearing will be scheduled for before Christmas or the earliest possible date in January 2023.


Sentencing for historic offences varies from the norm in certain significant ways, said Ms Justice O’Malley. A present-day judge cannot be expected to regard sexual offending against children in the same way a judge would have 40 years ago.

The legislative landscape has changed, she said, with the modern offence of sexual activity with a child under 15 years old carrying a sentence of up to life imprisonment.

This compares to an effective maximum sentence of two years for each of the offences subject to the appeal. The limit is to do with rationalisation of a patchwork of different statutory sentencing provisions from different eras, she said.

The fundamental principles of sentencing must be applied nonetheless, she added.

Setting out the background to the case, she said the man, who cannot be identified to protect the anonymity of the victim, was sentenced in February 2019 on five counts of indecently assaulting a boy 10 years his junior.

The victim was staying with the man’s family in a rural area in the summer of 1978. The man groomed and abused the boy, including fondling and making the boy masturbate him and give oral sex.

The man, a divorced father of one adult daughter, was aged 61 at his sentencing hearing and continued to maintain his innocence. He had no other criminal convictions and the Probation Service viewed him as having a low risk of reoffending.

The trial judge considered the gravity of the long-term impact on the victim in placing the offences at the high end of the scale.

The Court of Appeal considered the trial judge was entitled to exercise his discretion in deciding to order consecutive sentences. The court found concurrent sentences would have seen the man punished for only one offence, and it considered there were no circumstances where the headline sentence could have been less than 21 months.

The court did not agree with the trial judge’s view that there were no mitigating factors. It said the man had been a young adult at the time of the offences and came to court as someone who had not offended in the 40 years since. A “limited intervention” was warranted, so the court increased the suspended portion of the sentence.

Ms Justice O’Malley said the Supreme Court could not discern that the Circuit Court or the Court of Appeal took into account the principle of sentence totality.

The overall sentence, including the suspended element, must reflect the sentencing court’s overall assessment of the gravity of the case and the circumstances of the accused, she said.

An accused person should not be subjected to the possibility he or she may have to serve a longer sentence, which is a factor in a suspended sentence, than the sentencing court believes they merit, she added.

The judge noted Irish courts have often approached sentencing in cases of sexual assault against one victim on the basis that concurrent sentences are more appropriate than consecutive, which should be used “sparingly”.

She said “sparingly” does not mean rare or exceptional and a consecutive sentence is not necessarily an error in principle if the trial judge believes a concurrent sentence will not adequately reflect the gravity of sequential offending against one victim.

“The court has a duty to impose a sentence that fairly reflects both the gravity of the accused’s behaviour and his culpability, and it may be that, in a given case of historical offending, concurrent sentences within the maximum parameters of the available sentences will not do so,” she said.

Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Marie Baker and Mr Justice Séamus Woulfe agreed with the judgment.

Ellen O'Riordan

Ellen O'Riordan

Ellen O'Riordan is an Irish Times reporter