A rapist who successfully challenged the constitutionality of a law stopping the payment of his State contributory old age pension, has lost an appeal against the severity of his 12 year jail term.
The 77-year-old, whose details cannot be published to protect the victim's identity, had denied 60 counts of sexual assaulting and 14 counts of raping his daughter at locations in Galway and Roscommon on dates between January 2002 and September 2006.
He was found guilty by a Central Criminal Court jury following a retrial. Mr Justice Paul Carney imposed concurrent 15 year sentences on each rape count and 10 year sentences on each sexual assault count with the final three years suspended in May, 2011.
The man lost an appeal against the severity of his sentence today with the Court of Appeal unable to identify an error in either the sentencing judge's approach or conclusions.
Giving judgment in the three-judge court, Mr Justice John Hedigan said the man was the victim's father and the offences took place mainly in the family home when the victim was aged between nine and 14.
Over the years, the assaults progressed from once or twice a week to every day progressing from touching and digital penetration to rape.
She was told that if she refused to go along with her father, she wouldn't be allowed out to see her friends. She was told that if she told her mother, her mother would hate her.
The victim ultimately wrote a note indicating her wish to leave the home. The note was found by her mother who asked what it meant. She told her mother what was happening and the mother insisted the man leave the home.
A victim impact statement detailed the “horror of the abuse” and how the victim felt alone and cut off.
The man was 71-years-old at sentencing and had one minor previous conviction for a road traffic matter. He was described as having a life time devotion to hard work and sporting activities.
The aggravating factors were the breach of trust, that the offences took place in the family home, the age of the victim, the duration and frequency of the offending, the absence of any genuine remorse and “attempts to sabotage” the trial process with pre-trial communications to the victim and her mother.
Mr Justice Hedigan said the Court of Appeal could not address the issues raised in the Supreme Court's finding that Section 249.1 of the Social Welfare Consolidation Act 2005 was unconstitutional because no leave to add additional grounds of appeal had been sought.
Having worked in the State and made PRSI contributions, the man got the contributory pension when he retired in 2005. After his conviction, his pension payments were stopped.
He challenged Section 249.1 on the basis that it was incompatible with the Constitution and European Convention on Human Rights. The core issue was whether a prisoner has a constitutional right to payment of the State contributory pension.
In July, the Supreme Court found the effect of the section was an additional penalty not imposed by a court and, as such, an impermissible administration of justice by legislation.
In this appeal, against the severity of his prison sentence, his primary grounds were that the judge did not appropriately take account of the fact there was no violence or extreme cruelty visited on the victim other than what was inherent in the offence itself, did not give due regard to his previous good character and his work as a sporting coach. Moreover, there was no provision for rehabilitation.
Mr Justice Hedigan said the Court of Appeal could find no error in the sentencing judge's approach or conclusions.
He had noted that the most fruitful source of mitigation, an early guilty plea, was not available. In the absence of genuine remorse, there was little the sentencing judge could have done to allow for rehabilitation.
Mr Justice Hedigan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court could identify no error in principle and the appeal was accordingly dismissed.