THE LAW prohibits a jail term of more than four years being handed down to a man who admitted sexual offences against his niece, Mr Justice Carney told the Central Criminal Court yesterday.
The defendant, a 39-year-old man, pleaded guilty to four charges of indecently assaulting his niece - now 24 - from 1977 to 1982.
Garda Assumpta O'Callaghan said the offences had occurred in the victim's and the man's homes, in his car, in sheds and in woods.
Had the offences been committed following the enactment of the Criminal Law (Rape) (Amendment) Act, 1990, they would have been described as Section 4 rape with a maximum term of life imprisonment, Mr Justice Carney said.
However, as the crimes took place in the 1970s and 1980s, the charge was indecent assault, under the 1935 Act.
The judge said prosecuting counsel, Mr Joseph Mathews SC (with Ms Miriam Malone), and defence counsel, Mr Brendan Grogan SC (with Mr Alan Toal), agreed the maximum sentence for such offences was now five years.
He was bound also by the Supreme Court decision which stated guilty pleas and confessions which ensured a victim did not have to give evidence "had to be taken account of in a meaningful way". In practice, this meant the sentence limit was four years.
Mr Justice Carney said he thought this was an inadequate sentence having regard to the evidence of forced oral sex on the victim when she was aged between five and 11 years. He had no doubt it would be said he should unconfine himself by imposing consecutive sentences on the charges, which included masturbation and digital penetration.
But, on reading the Supreme Court appeal of the DPP versus Z (the defendant who was jailed for sexual offences against Ms X), he was satisfied he was not entitled to do that. He imposed concurrent four-year terms on each charge.
Garda O'Callaghan said the defendant sometimes babysat the victim for his sister. The victim kept the offences secret until the age of 15, when she confided in a nun on condition her parents would not be told. The nun brought her to a hospital.
In January, 1994, she went to gardai and after an investigation, the defendant was arrested three months later.
The defendant recalled when the victim gave him a note asking "why me?" He said he told her the same thing happened to him and the girl's mother. Everyone thought he knew about sex, but he was ignorant, he added.