A man jailed for intending to sexually exploit a 13-year-old girl, in the first prosecution taken under child-protection legislation, had his sentence vacated by the Court of Appeal.
Muhammad Hussain (32), a Pakistan national with a last address at Steam Boat Quay, Limerick City, pleaded not guilty to travelling to meet a child with the intention of sexual exploitation on July 22nd, 2011.
He was sentenced to four years imprisonment by Judge Sarah Berkeley at Dublin Circuit Criminal Court on April 4th, 2014.
Hussain successfully appealed his sentence in the Court of Appeal on Monday and a new sentence will be imposed on March 16th.
Counsel for Hussain, Ciarán 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 a sentence to the sentencing judge.
The Court of Appeal agreed and said that where there was no guidance from an appeal court or reputable analysis of sentences, it was not appropriate.
Giving background to the case, Ms Justice Mary Finlay Geoghegan said Hussain met the intended victim, Ms F, early on May 25th, 2011.
Ms F lived in institutional care but was in frequent contact with her mother. That evening, Ms F and a friend got a taxi into the city. Walking along a road on their own, they met Hussain (then aged 29). He was in a car with a friend and they stopped at traffic lights and started talking to the two girls. Either Hussain or his friend asked the two girls if they were prostitutes, the judge said.
The two girls 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 old.
Hussain rang the number several times. Ms F’s mother answered on one occasion and told him her daughter was 13 and had gone missing.
On July 17th, 2011, Ms F took her phone back from her mother and sent a text to Hussain asking him to make contact. They then texted and phoned each other.
On July 22nd Ms F and her mother got a phone call from Hussain which 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 sexual matters during that call, Hussain did not commit himself to anything. He agreed to meet Ms F that evening. Gardaí were 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 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 not permissible.
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.
It was not permissible to submit, as the prosecution counsel did, that: “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 16th pending a decision on a new sentence.