A MAC who admitted indecently assaulting a niece six years his junior had his five year prison term reduced to six months by the Court of Criminal Appeal yesterday.
Mr Justice Keane, giving the court's judgment, said it was a tragic case both for victim and uncle.
The offending conduct, said the judge, ended at least 10 years ago. The man had not offended in that, or any other respect since then, was married with a family and in steady employment.
All the evidence pointed to these having been incidents in his past which he bitterly regretted and had never been repeated.
It had been charged against the uncle that between December 12th, 1980, and December 12th, 1984, he indecently assaulted his niece, contrary to Section 10 of the 1981 Criminal Law Rape Act.
The Circuit Court judge sentenced the man to five years' imprisonment and suspended the final 18 months.
Mr Justice Keane said the offences came to light in January, 1995. The earliest offence to which the uncle pleaded guilty occurred when he was aged 18 and the niece 13, the last offence when he was 21 and she 15.
The woman, who was unmarried and had a five year old son, told gardai of occasions when the uncle had anal and oral intercourse with her.
The uncle in a statement admitted he "had sex" with the girl, although he never ejaculated. He did not want to harm his wife or family and was deeply ashamed for what happened.
In the Circuit Court, the woman said her uncle's actions had devastated her life. She told the trial judge: "I just lost my basic trust in people. Nobody can come very close to me because I am inclined to back off.
"I just expect the worst from people. I have lost my whole family through all this, my parents, my brother, everybody else and it has affected my relationship with my son, which is very difficult because I can't allow myself to come too close to him."
The woman told the trial judge she could not understand why the applicant had been charged with "indecent assault" and not with "rape". Counsel for the DPP said he had been instructed to frame the indictment in that way.
The trial judge said it was an outrageous situation. Under the present law, the offence of "indecent assault" (maximum penalty 10 years) had been replaced by two separate offences of "sexual assault" (five years) and "aggravated sexual assault" (life imprisonment).
The judge said he was constrained by the old sentence of "indecent assault". If it was to fit into the new regime it would certainly be "aggravated sexual assault".
Mr Justice Keane said it would be inappropriate to speculate why the DPP did not prefer charges of a more serious nature against the uncle. The case must be approached on the basis that the uncle had never been charged with the more serious charges and had never admitted he was guilty of the acts of rape, buggery and oral intercourse.
This case was one of a number, said the judge, coming before the courts with increasing frequency, where the acts complained of took place, if at all, many years before the allegedly offending conduct was reported to the gardai.
Mr Justice Keane said children were normally reluctant to accuse people significantly older than them of improper behaviour. This was most clearly the case where the abuser was in a position of authority, whether as a parent, step parent, teacher or religious.
It might also apply in a case such as the present where the age difference between the uncle and niece was such as to place him in position of at least some dominance over her.
The factors inhibiting disclosure might be exacerbated by the feeling of guilt or shame experienced by the child because of his or her participation, however unwilling, in what he or she saw as wrongdoing.
Mr Justice Keane said these factors had led the courts to adopt a different test in determining whether the trial of an accused person on particular charges should be prohibited because his constitutional right to an expeditious trial had been violated, from that which would be applicable in cases where no such factors were present.
The lapse of time might be relevant because of the conduct of the accused person in the interval. The lapse of time was significant because of the different climate of opinion which prevailed today in respect of offences of this nature.
"The public," said Mr Justice Keane, "are now acutely conscious of the major evil in society represented by the sexual abuse of children, particularly when perpetrated by parents or older "members of a family in which the child placed a special trust, or by persons in positions of responsibility such as teachers or religious."
In the early 1980s, the public awareness of this whole area was far more limited and, as counsel for the DPP had conceded, if the uncle had been prosecuted then he would have received a significantly less severe sentence.
Mr Justice Keane said the criminal justice system could not be indifferent to the fact that an accused person would probably have received a significantly more lenient sentence, had he not been deprived in the particular circumstances of the case of what would otherwise have been his constitutional right to an expeditious trial.
The court in imposing sentence in a case of this nature must have regard not merely to the consequences which the uncle's conduct had for his niece but also the serious consequences of the conviction for the uncle himself, altogether apart from the effect any sentence imposed by the court might have.
Mr Justice Keane said the Court of Criminal Appeal was satisfied that the trial judge was in error in giving insufficient weight to all these factors.