COURT OF CRIMINAL APPEAL - Title: DPP -v- James Kennedy:Judgment given by Mr Justice Kearns on April 14th, 2008, sitting with Mr Justice Birmingham and Mr Justice Edwards
JUDGMENT
This was an appeal against nine-month and six-month custodial sentences for sex offences committed in 1972 and 1975.
The applicant suffers from a number of serious health problems, and the court ruled that the Central Criminal Court did not give sufficient weight to them in imposing the custodial sentence. Consequently it suspended the sentence.
BACKGROUND
The applicant pleaded guilty in November 2007 to two counts of indecent assault in the Central Criminal Court. The offences involved him exposing himself to his wife's niece when she was nine or 10 years of age in 1972, when he was in his 50s, and fondling her in her genital area three years later.
He was sentenced to six months' imprisonment for the first offence and nine months for the second, to run concurrently.
It was argued on his behalf that, though the offences were grave, they were nowhere near the higher end of the scale in terms of sexual offences.
At the time the law did not provide for intermediate offences, such as the second offence, as it now does through Sections 2 and 3 of the Criminal Law (Rape) (Amendment) Act 1990. The first offence was "on the cusp of criminality".
The applicant was in a very poor state of health when the sentence was imposed, and was effectively housebound.
He requires a stairlift, grab rails, a walk-in shower and uses incontinence pads. He had received treatment for a heart attack and skin cancer and had an operation on his spine. He takes a wide range of medication for conditions including angina, high blood pressure, depression and skin problems, and suffers from dizziness.
His counsel, Patrick Gageby SC, submitted that the trial judge had not given adequate weight to the cumulative effect of the applicant's many illnesses and disabilities, or the effect a custodial sentence would have on his remaining health.
He had no previous convictions and had expressed genuine remorse for the pain caused to the complainant and to his own family.
Mr Gageby pointed to other judgments in which it was stated that a sentence imposed on an older person, and one suffering from ill-health, would be disproportionately greater in its effect on the person than one imposed on a person in other circumstances.
The DPP accepted that the age of the applicant, coupled with his state of health and decrepitude, would have permitted the imposition of a suspended sentence had the trial judge been minded to approach the case in that fashion. Had he done so, counsel for the DPP said that an appeal against the sentence on the grounds of undue leniency would not have followed.
DECISION
Giving the court's decision, Mr Justice Kearns said that given the undoubtedly exceptional circumstances of the case, the court was disposed to suspend the sentences in their entirety, upon the applicant's undertaking to keep the peace and be of good behaviour.
"The learned trial judge set out succinctly his reasons for imposing a custodial sentence and it is only to the extent that he gave insufficient weight to the illnesses and declining health of this very old man that it can be said there was an error of principle in this case," he said.
"In so holding, the court in no way ignores the gravity and seriousness of the offences and the grave hurt and distress which they caused to the complainant."
The full text of the judgment is available on www.courts.ie
Patrick Gageby SC and Siobhán ni Chúlacháin BL, instructed by Jim Eustace & Co, solicitors, Smithfield, Dublin, for the applicant; Paul Coffey SC and Martina Baxter BL, instructed by the Chief Prosecution Solicitor, for the DPP