Man who had sex with his 'mentally impaired' cousin has sentence cut on appeal He had been sentenced to five years, but will now serve 18 months. He was found guilty by a jury and sentenced to five years imprisonment on each count, to run concurrently, by Judge Patricia Ryan on 8 February The married man and father-of-one had been granted bail in July , pending his appeal against conviction, which was dismissed last month.
He successfully appealed his sentence today and was accordingly re-sentenced to three years imprisonment with the final 18 months suspended. The injured party had cared for her parents in their elder years and was trusted by her siblings to do so, the judge said. She was capable, to a degree, of independent living and was able to travel by bus and train on her own, the judge said. She had also had a number of boyfriends in the past and had had one for about five years at the time of the trial.
He was not mistaken as to her mental capacity, the judge said, and the fact that he abused her made this case a serious one. The court was satisfied that the judge had erred in treating her mental impairment as an aggravating factor, the judge said, as had been submitted his barrister, Patrick Gageby SC. Mr Justice Mahon said mental impairment constituted an ingredient in the offence and it must, by definition, be present. But the mere fact that she was mentally impaired could not be treated as an aggravating factor in itself, he said.
The more mentally impaired, the more vulnerable a person is and the greater the culpability of the offender, Mr Justice Mahon said. Likewise, the less mentally impaired, the less culpable the offender. Furthermore, the judge did not locate a starting point for the offence on the scale of gravity and did not indicate what allowance was being made for mitigation. If, having allowed for those mitigating factors, Mr Justice Mahon said, it must reasonably follow that the starting point determined by the judge was considerably higher than five years.
He said the court was also concerned that the judge did not attach significant weight to the manner in which the man participated in the trial. Her account had not been challenged and her cross examination was conducted in a humane manner having regard to her vulnerability, the judge said. The sentence was backdated eight months to take account of time served. As obliged by law, Mr Justice Birmingham told the man that he was on the sex offenders register and failure to comply with certain obligations attached to that, he would be committing a further offence.
In his unsuccessful conviction appeal, his barrister, Patrick Gageby SC, submitted that the trial judge erred in allowing the victim to give evidence via video link.