A former RTE journalist who was jailed for 15 months for sexually assaulting a woman while she slept has lost his appeal against his conviction and sentence.
Mícheál Ó Leidhin (38) was a political reporter for Raidió na Gaeltachta and was found guilty by a jury in July for the sexual assault of the woman that happened at his former home.
At the Court of Appeal today, Ms Justice Aileen Donnelly said that consent could not be implied when a person is asleep and that everyone has the right to feel safe while they sleep.
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Ms Justice Donnelly said the argument of implied consent because of previous sexual activity was not raised at Ó Leidhin’s trial and described the ground of the conviction appeal as “novel”.
She described the ground of appeal as “speculative” and “divorced from the reality of the trial”. She said this was not a point of substance to argue for a ruling of a perverse judgement and dismissed the conviction appeal.
Ó’Leidhin’s lawyers had also submitted that the two-and-a-half year headline sentence identified by the trial judge was too high.
Ms Justice Donnelly said that the lower end of the scale for sexual assault had a maximum of three years and four months’ imprisonment and that Ó Leidhin had been given more that a one-third discount in mitigation.
Ms Justice Donnelly said the trial judge took into account Ó Leidhin’s lack of previous convictions, his previous good character, the loss of a good, long-term job with RTÉ and his co-operation with gardaí at all times when sentencing him.
Ms Justice Donnelly said there had not been any disproportionality in Ó Leidhin’s sentence and noted that the final three months had been suspended. She then dismissed the appeal against conviction.
Lorcan Staines SC, for Ó Leidhin, had argued before the three-judge court that the trial jury should have been told to consider "implied consent" in circumstances where the woman had engaged in consensual sexual activity with O'Leidhin before they both fell asleep.
The victim told the trial that before going to sleep they spoke about the possibility of further sexual activity the following morning but when she awoke, he was on top of her groping her breasts. Mr Staines added that O'Leidhin's account of what happened was that he tried to wake her with sexual activity but stopped when she told him to stop.
Mr Staines compared what O'Leidhin did to a scenario where a woman wakes her partner by performing a sexual act. Under the definition, he said, that too would be an offence. "The people of Ireland should know if this is an offence and Mr O'Leidhin should be able to test whether that is the law."
Ó Leidhin of Sunnyside, Malahide Road, Artane, was convicted last April of sexual assault at his former home in south Dublin in the early hours of the morning of May 13, 2018.
The appellant, who is a native of Ballinskelligs, Co Kerry, had denied the offence but his lawyers told a sentence hearing at the Central Criminal Court that he accepted the verdict of the jury.
The victim told the court that her mind and body had been violated and she had "lost her place in the world".
The court heard that Ó Leidhin and his victim met on a night out in May 2018. They went back to Ó Leidhin's house in the early hours of the morning, where they engaged in consensual sexual activity.
The woman said she told him she did not want to have sex as they had no contraception.
The court heard they fell asleep. The woman gave evidence that she woke up to find Ó Leidhin lying on top of her groping her breasts. She told him to get off her and the court heard he said something along the lines of "sorry, I'm horny".
In a statement to gardaí, Ó Leidhin said that when he woke up on the night he had wanted to resume the sexual activity they had been engaged in earlier.
He said he had been trying to wake the woman to continue "fooling around". He said she asked him to stop and he did so.
At the sentencing hearing, Judge Karen O'Connor said the case was "unusual" but decided that part of the sentence would have to be custodial.
She imposed a sentence of 18 months, suspending the final three months.
Reading from her victim impact statement, the woman said the assault had left her traumatised and feeling lost in the world. She said she was sexually violated when she was at her most vulnerable.
She said the night of the attack was the last time she would ever go to sleep feeling safe from attack.
She said she replays the assault again and again and has felt depressed and suicidal. She said she did attempt to kill herself by overdosing and ended up moving back in with her parents to cope with the trauma and stress.
She was unable to get public transport for a long time because the “touch from a stranger was unbearable”.
“My whole life and sense of self have been destroyed,” she said.
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