February 2015

Man jailed for sexual exploitation a 13-year-old girl is to be ‘re-sentenced’

A Pakistani man jailed for the sexual exploitation of a 13-year-old girl in what was the first prosecution taken under child protection legislation has had his sentence vacated by the Court of Appeal.

Muhammad Hussain (32) with a last address at Steam Boat Quay, Limerick City, pleaded not guilty to travelling to meet a child with the intention of doing an act that would constitute sexual exploitation on July 22 2011.

He was sentenced to four years imprisonment by Judge Sarah Berkeley at Dublin Circuit Criminal Court on April 4 2014.

Hussain successfully appealed against his sentence in the Court of Appeal today and a new sentence will be imposed on him on March 16.

Counsel for Hussain, Ciaran O’Loughlin SC, had submitted that because this was the first conviction for an offence under this section, it was not appropriate for prosecution counsel to suggest any sentence to the sentencing judge.

The Court of Appeal agreed and stated that where no guidance from an appeal court or, a reputable analysis of sentences typically imposed exists, then it is not appropriate to do so.

Giving background to the case, Ms Justice Mary Finlay Geoghegan said Hussain met the intended victim, Ms F, in the early hours of May 25 2011.

Ms F was 13-years-old at the time, she had been residing in institutional care but did, however, have frequent contact with her mother. Hussain was 29-years-old at the time.

On the evening in question Ms F and her friend left the residence and got a taxi into the city.

Walking along a road on their own, they met Hussain. He had been travelling in a car with a friend and had stopped at some traffic lights and engaged in a conversation with the two girls. One of either Hussain or his friend, asked the two girls if they were prostitutes, the judge said.

The two girls struck up a conversation, got into the car, spent the rest of the evening with the two men and exchanged telephone numbers. They told Hussain and his friend they were 19 years of age.

Hussain rang the telephone number several times. Her mother answered on one occasion and she told him her daughter was 13 years of age, had gone missing and it was not known where her she was.

On July 17, 2011, Ms F retook her phone from her mother and sent a text to Hussain asking him to make contact. There then followed an exchange of telephone calls and text messages.

On July 22, Ms F and her mother received a telephone call from Hussain. It was recorded by Ms F’s mother and played to the jury.

It was clear Hussain wanted to meet Ms F, the judge said. He was offering to bring her items including alcohol and mobile phone credit. In that call he admitted he was aware of her age. 

While it appears there was some discussion about sex and sexual matters in that telephone call, Hussain did not commit himself to anything. He agreed to meet Ms F at a particular location that evening. The gardaí were then contacted by Ms F and her mother and they arrested Hussain at the location.

Ms Justice Finlay Geoghegan said the prosecution is entitled to and should give assistance to a sentencing judge in relation to both to placing the offence at the appropriate point on the spectrum of severity and in identifying the sentence.

However, in this case, certain submissions which appeared to have been taken into account by the sentencing judge were impermissible.

She said it was not in accordance with principles for the prosecution to submit for consideration sentence decisions on offences other than the offence in question. Such decisions did not come within permitted guidance, she said.

It was not permissible to submit as was done by prosecution counsel: ‘the Director would say this is in the mid range of offending, perhaps even toward the upper end of the mid range’.

Ms Justice Finlay Geoghegan, who sat with Mr Justice Gerard Hogan and Ms Justice Mary Irvine, said the trial judge erred in principle in considering those submissions.

The Court allowed Hussain’s appeal, vacated his sentence and remanded him in custody until March 16 pending a decision on a new sentence.