A transgender woman has lost an appeal against the severity of her sentence for sexually assaulting and threatening her former partner's son.
The woman (32), who can't be named to protect the victim's identity, was convicted by a Circuit Criminal Court jury of ten counts of sexual assault contrary to section 2 of the Criminal Law (Rape) Act 1990. She was convicted of one count of child cruelty. The offences occurred between September 2011 and September 2013 when the child was aged five and six years.
A Circuit Court judge sentenced her to six years and six months in prison with the final six months suspended for one year.
At a previous hearing at the Court of Appeal Roderick O'Hanlon SC, for the appellant, argued that the sentencing judge did not give enough regard to the difficulties his client would face in prison as a transgender woman. She is being held in a women's prison, the court heard.
Mr O'Hanlon also argued that the sentencing judge should have suspended a larger part of the sentence to incentivize rehabilitation.
Ms Justice Isobel Kennedy at The Court of Appeal on Thursday dismissed the appeal. These were, she said, "very serious offences, which involved the repeated sexual assault of a very young victim over a period of two years." She said the appellant was "in a position of trust, influence and power and abused this position."
Ms Justice Kennedy said the abuse was aggravated by the fact that she abused the victim to the point of inflicting pain and even caused him to bleed on occasion. Besides the physical abuse, she also verbally and emotionally abused the boy, resulting in the conviction for child cruelty. Ms Justice Kennedy noted that the impact on the child was "very severe indeed".
Ms Justice Kennedy said the trial judge had set a headline sentence of eight years and reduced that by 25 per cent, having taken into account the difficulties the appellant would face and other factors. Given that the appellant did not have the benefit of a guilty plea or any show of remorse, Ms Justice Kennedy said this was a "considerable discount".
She added: "The judge assessed the evidence and reports furnished to her carefully and approached the case with considerable sensitivity. She acknowledged that a custodial sentence would, in the circumstances, present challenges for the appellant, but this is clearly recognised in the reduction afforded for mitigation."
She further stated that the suspended part of the sentence means she will have help in reintegrating into society when released. The judge also rejected an argument that the eight-year headline sentence was too high. The maximum for the offence, she said, is 14 years. The pain and suffering caused by the sexual abuse and the "extremely young" age of the child, she said, put the offending in the upper end of the middle range for sexual assault. Therefore, she said, the headline sentence of eight years was not an error.
The court previously heard that the offender identified as a man when she started dating her victim's mother. She took on the role of step-father to the boy but started abusing him when the mother was not looking. The boy said he was regularly slapped and that the offender threatened to break his arms and legs. He described various instances of abuse including having his trousers pulled down and being told to lie on a bed while he was being abused.
The family's neighbours contacted gardai after seeing the step-father shouting at the boy and threatening him. At around this time she was beginning to acknowledge issues about her gender identity and has since obtained a female gender recognition certificate under the Gender Recognition Act.
Ms Justice Kennedy sat with Ms Justice Aileen Donnelly and President of the Court of Appeal Mr Justice George Birmingham.
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