No jail for man who had sex with 13-year-old girl after relationship with her mother

He was given a fully suspended three-year sentence by Judge Patrick McCartan at Dublin Circuit Criminal Court on May 4, 2011.

The Director of Public Prosecutions appealed his sentence on grounds that it was unduly lenient.

Mr Justice John Edwards said today that the Court of Appeal did not consider it appropriate to interfere with the man's sentence due to the peculiar and unusual circumstances of the case.

The court heard that the man had become involved with a woman 10 years his senior when he was 15 years old.

He came to reside in the home of this woman at the age of 18 and was involved in domestic functions such as babysitting.

When the relationship began to fail, he continued to reside at the house where the injured party lived with her siblings. The man was 23-years-old at the time and the injured party was 13.

Mr Justice Edwards said the injured party had described a history of intimacy with the man which began with walking and talking and progressed to kissing.

After a while she spoke to the man about sexual intercourse and he told her he would "wait until she's ready," Mr Justice Edwards said.

Some weeks later intercourse occurred when the mother was out of the house. On all occasions, the judge said, acts occurred when the mother was out of the house.

He was subsequently moved from the house and the mother noticed her daughter had become very upset and withdrawn, the judge said.

The matters came to light, they were reported to gardaí and the man was sent forward for trial.

He was entirely co-operative and pleaded guilty to this matter at a very early stage, the judge said.

His barrister, Caroline Biggs SC, told the court that he was probably closer to the young girl in maturity and mindset than he was to the mother.

Ms Biggs submitted, although she was “reluctant to say it”, that he did have a real regard for this girl and the acts were initiated by her but that was not used by him to justify what he did.

Mr Justice Edwards said the girl's victim impact statement described her lack of confidence and self-esteem. She said she “won't ever be OK” and had found it very difficult to deal with what had happened.

“That she was a willing participant or an instigator,” Mr Justice Edwards said, could not be held by the man as a mitigating factor.

He said the legislation was there to protect young women from predators and the man had known from the outset and all along that what he was doing was wrong.

There was a “very unusual domestic arrangement,” Mr Justice Edwards said. He appeared to have been taken in as a person of domestic convenience providing babysitting functions among others for the home.

He was a person of low intelligence, had never put a foot wrong, came from a difficult background and was at low risk of re-offending, Mr Justice Edwards said.

The sentencing judge had been impressed, Mr Justice Edwards said, that €5,000 had been proffered by him for the sole purpose of assisting the victim in paying for counselling services.

Mr Justice Edwards said the trial judge was “very experienced” and he had clearly given great care and consideration to what he described as “peculiar and exclusive” circumstances.

The Court of Appeal agreed, Mr Justice Edwards said, that there were “highly peculiar and highly exceptional” circumstances in the case.

These were the man's immaturity, his own vulnerability and the fact that he was not involved in grooming, predatory conduct or domination of any sort.

Mr Justice Edwards, who sat with President of the Court of Appeal Mr Justice Seán Ryan and Mr Justice Alan Mahon said the court did not consider it appropriate to interfere with the man's sentence.

He said a custodial sentence in cases of this type would usually be appropriate but there were rare eventualities.

The Court of Appeal found the man's sentence was lenient, Mr Justice Edwards noted, but it was “at the lenient end of the range of permissibility”.