A father of three has had 18 months cut from his 12-year sentence for the rape of his teenage foster daughter after the court of appeal found comments by the sentencing judge "may have given rise to an understanding" that he was taking remission into account when passing sentence.
The Court of Appeal had heard a September appeal by Richard Moloney (42) of Roscrea, Co Tipperary, against both his conviction and sentence for rape and two other sexual offences.
Moloney, a father of three, was found guilty by a jury at the end of a trial in July 2019 of one count of rape, one count of oral rape and one count of sexually assaulting his then 16-year-old foster daughter at their home on July 16, 2016. He was acquitted on a fourth count of alleged anal rape.
Moloney was subsequently sentenced to 12 years in jail for the offences at a sitting of the Central Criminal Court in November 2019. Moloney’s victim - his wife’s niece, Ciara Monaghan - had waived her anonymity so her foster father could be named publicly.
In a written judgement returned today (Monday), the President of the Court of Appeal Mr Justice George Birmingham said that in that in the course of his sentencing remarks, Mr Justice Alex Owens said: “I must sentence with regard to any remission which he may receive on that sentence while in the prison system and I am doing so”.
Mr Justice Birmingham said that observation, which had been drawn to the appeal court's attention by counsel for the Director of Public Prosecutions, did not accord with generally accepted sentencing practice.
He said that this may have given rise to an understanding that a sentence was being imposed which was longer than may otherwise have been the case because of an expectation that the appellant would eventually benefit from remission or early release.
"It does seem to us that the appellant might be left with a legitimate sense of grievance if he felt that he had received a sentence longer than would otherwise have been imposed because the judge felt it proper to take into account the likelihood of remission.
"Our concerns are heightened by the fact that this issue has arisen in a case where, on any view, the headline sentence imposed was very much at the upper end of the available range.
"In the circumstances, we believe it is necessary to conclude that an error occurred, which requires intervention on our part," the judgement read.
Mr Justice Birmingham said the original sentence was to be quashed and the court would re-sentence Moloney to a headline sentence of 12-and-a-half years, mitigated to ten-and-a-half years' imprisonment.
The trial heard evidence that Ms Monaghan and a friend were home alone with her foster father for a weekend when he plied them with beer and vodka.
After her friend got sick and went to bed, Moloney attacked his foster daughter and kissed her before forcing her to give him oral sex and then taking her into his bedroom where he raped her.
Moloney claimed to gardaí that his foster daughter was highly sexualised and he had woken up after falling asleep on a couch to find her on top of him with no bottoms on.
In a victim impact statement, Ms Monaghan outlined how she had made multiple suicide attempts since she was raped.
Ms Monaghan also described how she had regarded Moloney as a father figure and how she had hoped he would be “the one to walk me up the aisle”.
At the appeal hearing, lawyers for Moloney claimed the convictions were unsound due to the nature of how the jury was charged by the trial judge
Mr Andrew Sexton SC, for Moloney, said statements by Mr Justice Alex Owens when charging the jury characterised the case as one of two competing versions of evidence.
Mr Sexton said the cumulative effect of such statements was to create “a very real risk” that the jury felt obliged to choose from one of these competing versions of what had happened without considering the possibility that a third version of events might exist.
Counsel said Mr Justice Owens’ words could have “set a trap” for the jury to believe they faced a decision of having to choose between the evidence of Moloney and his foster daughter.
Mr Sexton said the direction from the judge ought to have been wider and not one where the jury felt they faced an “either/or” decision.
In his submissions, counsel argued that Mr Justice Owens had not emphasised sufficiently to the jury that rejecting Moloney’s evidence did not necessarily indicate his guilt.
Opposing the appeal, Conor Devally SC, for the DPP, said the trial judge had correctly stated that the burden of proof at all times rested on the prosecution to prove the charges and that the jury needed to be satisfied of Moloney’s guilt beyond reasonable doubt.
Mr Devally said Mr Justice Owens had also provided correct instructions on how a jury should deal with competing versions of events. He noted that the jury had shown its ability to reject some evidence on the basis it had acquitted Moloney of a charge of anal rape, while finding him guilty of three other offences.
Mr Justice George Birmingham, presiding, with Ms Justice Isobel Kennedy and Ms Justice Úna Ní Raifeartaigh, today found that Mr Justice Owens did not err in his charge to the jury.
Separately, Moloney’s lawyers also appealed the severity of the 12-year sentence imposed on their client, claiming the headline sentence of 14 years set by the judge was excessive.
Opposing any reduction in sentence, Mr Devally said the events had resulted in Ms Monaghan’s trust in her foster father being “explosively destroyed”. Mr Devally said the aggravating nature of the breach of trust was “at the very high end” of the scale.
In its ruling, the Court of Appeal said: "The judge referred to the fact that the offending in question had many aggravating features, identifying the fact that the accused was responsible for the complainant's safety and wellbeing and that she looked up to him.
"Accordingly, there was a gross breach of trust. The attack was committed in her home. The judge saw it as the culmination of a planned series of actions which were carried out with a view to sexual defilement."
The ruling said that the offences were "the stuff of pornography, that they were violent and degrading and were perpetrated in pursuit of sexual gratification".
The trial judge had identified 14 years' imprisonment as the appropriate headline sentence for the rape and oral rape and identified six years and the headline for sexual assault.
The trial judge said he found it difficult to identify anything of significant mitigation and had sentenced Moloney to 12 years for the rape and oral rape and to five years for the sexual assault.
In today's judgement, Mr Justice Birmingham described the offences as being of "exceptional gravity" and that the breach of trust was "an exceptionally grave one".
Counsel for the appellant had argued that up until the offences, that Moloney had been a "very positive force in the complainant's life". The Court of Appeal found that this was a "double-edged sword" and that it was "precisely because trust was reposed that the breach was so grave".