Man (32) caught with child sex abuse images sent to prison after suspended sentence is overturned
James Varian (32), with an address at Lois na Greine, South Douglas Road, Cork, was found to have 7,781 child sex abuse images on his mobile phone, with the majority of the files related to prepubescent children under the age of 12.
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Varian pleaded guilty to using information and communication technology to facilitate the sexual exploitation of a child contrary to section 8 (1) of the Criminal Law (Sexual Offences) Act 2017.
He also pleaded guilty to the possession of child pornography contrary to section 6 (1) of the Child Trafficking and Pornography Act 1998, as amended by section 14 of the Criminal Law (Sexual Offences) Act 2017.
The judge also took into consideration an offence of attempting to pervert the course of justice contrary to common law.
On November 19th 2024, Varian was sentenced by Judge Dermot Sheehan in Cork Circuit Criminal Court.
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He received four years fully suspended for the charge of facilitating the sexual exploitation of a child, and two years fully suspended for the possession of child pornography.
The Director of Public Prosecutions had appealed the sentence on the grounds that it was too lenient.
At the original sentencing hearing, Detective Sergeant Brendan Corry said that on January 4, 2022, gardai were called to an address and spoke to a father who said that images and other media files of a sexual nature were found on a home computer a 15-year-old boy had been using.
Det Sgt Corry said that gardai found messages of a sexually explicit nature were being sent to the boy, mostly through the messaging site Telegram.
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He said that on January 5th the respondent phoned gardai to say that he was the subject of a garda enquiry and on January 6 a warrant was obtained to search his home.
He said that the communication discovered by gardaí was 'alarmingly excessive, with in excess of two thousand five hundred messages exchanged over a period of nine days spanning between December 26, 2021 and January 4, 2022."
At the time of offending, Varian was 28 years old, while the boy was 15.
Det Sgt Corry said that on January 4th upon discovering that gardai were investigating, Varian also directed the boy to 'purge chats, delete everything'.
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He said that Varian was arrested on May 30th 2022, was detained and interviewed on two occasions, where he made no admissions at interview.
He said that the seized phone was found to contain 7,781 images classed as child pornography, with 6,431 of these images deemed as 'child animation'.
Counsel for the DPP, Emmet Boyle BL, told the Court of Appeal that the sentencing judge erred in failing to attach appropriate weight to aggravating factors in the case.
He said these factors included the amount of messages sent to the child, the disparity of age between the defendant and the victim, his urging the boy to delete the messages and his risk of reoffending which was outlined by the probation services.
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Mr Boyle also said that the sentencing judge put undue weight on the mitigating factors in the case, like Varian's lack of previous convictions and his early guilty plea.
Defence counsel for Varian, Jane Hyland SC, said that the decision to fully suspend his sentence was justified and the judge was exercising within his discretion in the sentencing.
She said that her client lost his job as a result of the incident, that he suffers from mental health problems and that he also suffered reputationally from the incident.
Returning judgement, Mr Justice John Edwards said that the sentencing judge's reasons for fully suspending the sentences were 'relatively sparse', giving only Varian's age and the fact that he was a first time offender.
He said that the judge acted in error to fully suspend the sentences and that the decision was not proportionate to the gravity of the offending. He said that the sentencing was 'outside the norm and unduly lenient'.
He also said that although the court noted Varian's assertions of his remorse, his letter of apology presented to the judge failed to mention his young victim at all.
Mr Justice Edwards said that the court decided to quash the original sentences and proceeded to resentencing.
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He said that there was no issue with the original headline sentences imposed at six years for sending explicit messages and four years for the possession of child pornography.
He said that the court also accepted the discount of two years for both counts given in mitigation by the sentencing judge.
The Court of Appeal sentenced Varian to four years in custody with the final 12 months suspended for a period of 12 months for the count of sending explicit messages.
They also sentenced him to two years in custody for the count of possession of child pornography, to run concurrently with the first.
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