A violent and abusive father who orally raped his daughter and then claimed she was lying to get revenge on him, has lost an appeal against the severity of his sentence.
The man also claimed that he couldn't have orally raped his daughter because she didn't notice plastic implants in his penis.
In a ruling delivered on Monday, the Court of Appeal upheld the sentencing judge's finding that a single count of attempted rape was more serious than numerous counts of oral rape and warranted a 12-year headline sentence as opposed to the ten-year term imposed for the other offences.
Ms Justice Mary Rose Gearty, who wrote the judgement on behalf of the three-judge court, said an attempted penetration of the vagina can attract a more serious penalty than the actual penetration of the mouth.
She added: "The headline sentence of 12 years for attempted rape was within the range of penalties open to the Sentencing Judge in the circumstances of this ongoing offending on his young daughter, against a background of familial violence and threats, and considering his sarcasm and taunts in the immediate aftermath of the attempt." It emerged during the trial that following the attempted rape the man taunted his daughter, saying he had taken "half your virginity".
Ms Justice Gearty said the sentencing judge was well placed to gauge the impact of the attempted rape and its seriousness. There was, she said, no error in principle and therefore the appeal court refused to interfere in the sentence.
The court also dismissed arguments by the man's lawyers that the trial judge did not give enough credit to their client for stopping the attempted rape. Ms Justice Gearty said the evidence was that he stopped when she screamed and pushed him away and that he then taunted her about her virginity. She added: "In those circumstances the argument has very little weight as the apparent mercy shown does not appear to have been due to any sympathy for his victim."
She added that the fact the rape is not completed cannot logically be a mitigating factor in an attempted rape case.
She also dismissed a suggestion that the trial judge should have given more weight to a letter of apology penned by the abuser in which he said he was sorry for the years of physical abuse his wife had suffered at his hands. Ms Justice Gearty pointed out that he did not apologise for sexually abusing his daughter and maintains his innocence in relation to those offences.
She said: "The defence to the charges was that the victim had made up the allegations because she was angry about the violence meted out to her mother. To apologise for the physical violence in this context and seek anger management help is of minimal assistance in terms of mitigation, particularly when the violence had to be admitted as part of a defence strategy, namely, that the allegations were fabricated as revenge for that violence."
She said his offer to undertake anger management and apologise for physical abuse, "does not begin to address the real problem here which is the repeated and serious sexual abuse of his own daughter."
Ms Justice Gearty sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Edwards.
The 52-year-old was convicted by a Central Criminal Court jury of 22 counts of sexual abuse, oral rape, child sexual exploitation and attempted rape in the family's Dublin home on dates between October 2009 and July 2011, when the girl was aged between 13 and 15.
On January 14, 2019, following conviction, Ms Justice Tara Burns sentenced him to 12 years in prison with the final six months suspended.
Last year the man, who cannot be named to protect his daughter's identity, lost an appeal against his conviction. His legal team had argued that the case was "truly exceptional" by reason of the inconsistency between the presence of visible implants in the man's penis and his daughter's evidence that there was nothing visible there at the time of the offences.
The Court of Appeal found that the obvious explanation was that the child, who was seeing a male adult penis for the first time in the stressful context of being abused, would not have known the difference between it and a penis which did not have such implants.
Passing sentence after the trial, Ms Justice Burns said the man had abused his daughter “for his own sexual gratification in the atmosphere of fear and power he exercised in the house”.
In a victim impact statement, the then 22-year-old woman told the Central Criminal Court that she felt like her father killed her inside. “I see his face and smile every time I look in the mirror. I look at myself and my body like I'm ashamed,” she said.
“I see my father's face and feel his breath when I get intimate with a man,” she continued.
The woman said she was not scared of her father any more and turned to face her father in court to tell him: “you made me feel I was worthless and you made me feel like it was my fault. You killed me inside and I will never forgive you for that.”
“You didn't feel guilty and you didn't feel any remorse to me or the woman you abused for 20 years. I am no longer the powerless girl I once was, I got the justice I finally deserved.”
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