A FORMER prison guard from Ballyroan has been sentenced to eight months in prison for the indecent assault of two children over 40 years ago.
Roderick McGrath (65), of Crubbin, Ballyroan, was convicted last May of five counts of indecent assault on two sisters in the late ‘60s and early ‘70s.
The injured parties, Ms Lilly Murphy and Ms Nora Fitzgerald both testified before the jury that McGrath, a family friend who was dating their older sister at the time, had assaulted them separately on a number of occasions while they were passengers in his car. Ms Murphy told the court that when she was eight or nine years old, McGrath “put his hand up my skirt and touched my vagina and rubbed it”. On another occasion, he told her to put her head on his knee while he was driving and when she did so, he put his hand up her skirt and rubbed her inside her underwear. On another occasion when she was 13 or 14, he tried to put his hand between her legs but she stopped him.
Ms Nora Fitzgerald told the court that when she was 14 or 15, McGrath pulled his car into the side of the road and tried to kiss her. She said he put his hands on her breasts and inside her underwear.
Neither Ms Murphy nor Ms Fitzgerald was aware that the other had also been abused by McGrath, until the matter arose at a family gathering in 2010.
Following the guilty verdict last year, Judge Tony Hunt adjourned the case on a number of occasions to decide on sentencing, as he expressed his reluctance to send a man in his 60s to jail for a crime committed over 40 years ago.
At last week’s court, Judge Hunt said: “In a week where matters of sentencing have been in the forefront of public discussion, this is another case that shows the difficulties... If the purpose of sentencing is to achieve the result that everyone can agree on, it would be a fruitless enterprise.”
The judge said he was aware that there was huge public interest in how such cases are dealt with by the courts, and he pointed out that there had been much discussion in the late ‘90s and early ‘00s about the admissibility of old cases proceeding at all.
“I’m acutely aware of what goes on around me, informed debate is not only welcomed but positively encouraged,” he said.
The judge alluded to editorials he had read in Irish papers which called for a community service system here in the State similar to Finland’s; he also spoke of reading articles which called for 20-year sentences for those convicted of rape.
“The offences committed here are at the lower end of the scale,” he said. “There was touching outside and inside the underwear. However, the girls were very young at the time, and they were girls who were entrusted to him. That trust was grievously abused, which brings it back up the scale to the mid-range.”
The judge said that the scale fixed a sentence of two-years at the upper end, based on legislation dating back to 1935.
“Times have moved on since then and the penalties have rightly been increased. This kind of conduct was viewed differently in the past.”
Judge Hunt said he had to be mindful of the significant ongoing effect on the victims in this case.
“There was no plea of guilty, meaning the indignity these ladies were subjected to long ago is one they had to relive in front of a jury,” he said. He pointed out that McGrath had exercised his right not to plea, and he praised defence counsel, Mr Shortt, for approaching the injured parties with tact and discretion during the trial.
The judge noted there were mitigating factors to consider, such as the passage of time and the fairness of imposing a sentence on someone convicted of offences committed 40 years ago.
“One injustice may be caused by another,” he observed.
Describing it as “one of the more extreme examples of elderly cases,” Judge Hunt remarked that since 1971, McGrath appeared not to have indulged in the same behaviour and had been highly thought of. He said that McGrath had “suffered enormously in character” as he had lost the respect of his community.
“It’s apparent to me there has been a very grave deterioration in the quality of his life, and that’s a punishment imposed by himself.”
Judge Hunt noted that emotions were running high and he cited the 2007 case of the DPP vs Patrick O’Connor, wherein a man convicted of raping and indecently assaulting his own stepdaughter between 1980 and 1986 was sentenced to seven years in prison. Judge Hunt said that this case had shown that a delay in coming to trial does not disbar a custodial sentence.
“After torturous consideration I can’t, and would be wrong to, run with my initial feeling on the matter,” he said.
Judge Hunt imposed eight months on each count, to run concurrent. He ruled that there was no need for McGrath to submit to post-release treatment, but he will be subject to requirements under section 2 of the act on sex offenders for ten years from the date of conviction.
“That is the conclusion, for better or worse,” said Judge Hunt.
Defence, Ms Geraldine Fitzpatrick SC, acting on behalf of Mr John Shortt SC, applied for an appeal of both the conviction and the sentence. Judge Hunt refused the appeal of the conviction, but granted counsel leave to appeal the sentence. Ms Fitzpatrick next requested bail for her client, but Judge Hunt said he had no authority on the matter.
Ms Fitzpatrick claimed that the judge could in fact fix bail and she said that her client has a strong case on appeal.
“We have to consider the jeopardy that this sentence will have expired before the Court of Criminal Appeal,” said Ms Fitzpatrick.
Judge Hunt said he agreed with her on one level, and noted that he was sending the former prison guard back to the place he had retired from.
“However, I have to do my job,” said the judge. “The jury have found him guilty and (Ms Murphy and Ms Fitzgerald) have been vindicated. Do you want more people queuing up to see An Taoiseach?”
Ms Fitzpatrick again said her client had a strong case for appeal, but State prosecutor, Mr Will Fennelly retorted that the court had refused the submission and Ms Fitzpatrick was now asking the court to carry out a task normally conducted by the Court of Criminal Appeal.
“This is certainly not a sentence that emerges from a rush of blood to the head,” remarked Mr Fennelly.
“A lot of thought went into it,” agreed the judge.
“There is a jurisdictional structure and this court can’t be asked to review the sentence,” said Mr Fennelly.
Judge Hunt admitted that this was an issue worth discussing, but he told Ms Fitzpatrick the law appeared to be against her. He said that no one appreciated more than he how difficult this case was, but he ruled that he had made his decision and he had no jurisdiction to grant bail as requested.
McGrath was taken into custody, pending his appeal.