R v McBrearty [2026] NICA 4 — Sentencing Article 7 Sexual Assault: Proportionality, Flexibility Beyond Article 6 Benchmarks, and the Bar on “Sentencing for Left-on-the-Books” Counts

1. Introduction

In The King v Gordon McBrearty ([2026] NICA 4), the Court of Appeal in Northern Ireland (Keegan LCJ, McBride J, Smyth J) considered an appeal against sentence arising from a single count of intentional sexual touching contrary to Article 7 of the Sexual Offences (Northern Ireland) Order 2008.

The appellant originally faced a three-count indictment: (1) assault with intent to commit rape or assault by penetration; (2) sexual assault (the count pleaded to); and (3) attempted sexual assault by penetration. He ultimately pleaded guilty to count 2, with counts 1 and 3 left on the books. The sentencing judge adopted a five-year starting point (reduced by 25% for plea to yield 45 months), which was challenged as manifestly excessive for a non-penetrative Article 7 offence and said to reflect, impermissibly, the seriousness of the abandoned counts.

The key issues were: (i) what a proportionate sentencing approach and range should be for an adult-on-adult Article 7 sexual assault in the Crown Court where there is limited direct appellate guidance; (ii) how far courts may reason by analogy from Article 6(1) digital penetration authorities; and (iii) the fundamental constraint that sentencing must be anchored to the offence of conviction and agreed facts—not to more serious counts left on the books.

2. Summary of the Judgment

The Court of Appeal allowed the appeal and substituted a sentence of 27 months (split equally between custody and licence).

  • The Court held that the trial judge’s five-year starting point for an Article 7 offence was not adequately explained and, on the facts, was disproportionate.
  • Critically, the Court concluded that the sentence effectively reflected more serious sexual offending charged in counts 1 and 3, which were not proceeded with, and that the judge was not entitled to sentence as though those counts were proved.
  • While rejecting the defence submission that Article 7 cases must be capped by the 2–3 year range commonly seen in Article 6(1) digital penetration cases, the Court nevertheless found that a three-year sentence (before plea discount) was the proportionate outcome on these facts.

3. Analysis

3.1 Precedents Cited

R v Collins & Mateer [2025] NICA 50

The Court referred to R v Collins & Mateer [2025] NICA 50 for a procedural and forensic point: counsel should assist sentencing courts by articulating the suggested appropriate range. The present case illustrated the practical consequences when a judge is not fully assisted on comparable authorities and range: the sentencing judge did not have the benefit of the focused submissions later advanced on appeal. The citation is deployed less as substantive tariff guidance and more as a reminder that coherent range submissions can prevent disproportionate outcomes.

Byrne & Cash [2020] NICA 16

The Court treated Byrne & Cash [2020] NICA 16 as the “nearest authority” despite it involving the more serious Article 6(1) offence (digital penetration). The key influence lay in the Court’s identification of a two-year starting point (without aggravation/mitigation) for that offence, and its approach to moving the sentence upward for features such as victim vulnerability and predatory conduct.

The use of Byrne & Cash in McBrearty is noteworthy: it was not treated as imposing a ceiling on Article 7 sentences. Rather, it functioned as a comparative anchor showing how the Court calibrates seriousness, while recognising that different offences and fact patterns may justify divergence where proportionate.

TH [2015] NICA 48

In TH [2015] NICA 48 (also Article 6(1) digital penetration), a global sentence of three years was noted as being driven by marked violence. The Court used this to reinforce two points: (i) the Article 6(1) range in the authorities commonly sits around 2–3 years; and (ii) violence and coercion are major escalators.

GM [2020] NICA 49 and CD [2024] NICA 9

Although concerned with child offending, GM [2020] NICA 49 and CD [2024] NICA 9 were cited for overarching sentencing method rather than direct comparability. In particular, the Court in McBrearty relied on the approach noted in CD [2024] NICA 9—evaluation through culpability, harm and risk. This framework shaped the Court’s structured assessment: high culpability (predatory exploitation of a lone intoxicated woman, aggression, persistence), harm at the higher end of medium, and risk as per probation (not significant risk of serious harm, but high risk of general reoffending; moderate category for sexual supervision/intervention).

3.2 Legal Reasoning

(a) The “offence of conviction” constraint: no sentencing by reference to left-on-the-books counts

The core legal error identified was that the sentence appeared to be pitched as if the appellant were being punished for counts 1 and 3 (assault with intent to commit rape/assault by penetration, and attempted sexual assault by penetration), despite the prosecution not proceeding with them following the plea to count 2. The Court reaffirmed a basic principle of sentencing legality and fairness:

  • A judge is bound by the agreed facts underpinning the count of conviction.
  • A judge is not entitled to increase sentence to reflect criminality contained in untried, abandoned, or left-on-the-books counts where those matters are not admitted in a way that lawfully enlarges the factual basis.

This aspect of the judgment operates as a practical warning: where an indictment is resolved by a plea to a lesser count, the sentencing exercise must not become a proxy adjudication of the abandoned allegations.

(b) Rejecting a “bright line” derived from Article 6(1) cases

The defence argument sought a consistency-based cap: because Article 6(1) digital penetration cases often attract 2–3 years, an Article 7 non-penetrative touching case should not exceed (on their case) about 2 years. The Court rejected this as an unsustainable “bright line” approach.

The Court’s reasoning is important for sentencing methodology:

  • Offence labels (Article 6 vs Article 7) do not create automatic ceilings; proportionality depends on the facts.
  • Sentencers require flexibility to address high culpability and aggravation in Article 7 cases, including deterrence in street predation scenarios.
  • Analogies to Article 6(1) authorities provide guidance but must not become a rigid tariff that ignores the spectrum of Article 7 conduct.

(c) Proportionality and calibration on the facts: why 3 years (before plea) was “just and proportionate”

Applying the culpability-harm-risk lens, the Court agreed that this was a “bad example” of Article 7 offending: predatory conduct, aggression, exploitation of vulnerability (lone intoxicated woman), public setting, persistence, and near “cusp” facts (skin-to-skin contact proximate to more serious conduct, though not charged/proved as such). The Court also stressed deterrence.

However, the Court identified the controlling boundary: the sentence must reflect one Article 7 count, not the more serious abandoned counts. With the benefit of focused submissions (and prosecution effectively conceding overreach), the Court arrived at a three-year term as the appropriate pre-discount sentence, reduced by 25% to 27 months.

3.3 Impact

(a) Emerging guidance for adult-on-adult Article 7 sentencing in the Crown Court

The Court expressly noted the lack of direct Court of Appeal authority for adult-on-adult Article 7 sexual assault. While the Court declined to “rigidly categorise” such cases, it gave meaningful directional guidance:

  • Lower-end conduct may be prosecuted in the magistrates’ court and may not always cross the custody threshold where mitigation is high and aggravation absent.
  • Where prosecuted in the Crown Court, the custody threshold will usually be met.
  • Serious Article 7 sexual assault with aggravation clearly passes the custody threshold and may warrant sentences that, depending on facts, can exceed simplistic comparisons to Article 6(1) starting points.

This assists practitioners and judges by confirming that Crown Court Article 7 sentencing is not confined to the “shadow” of Article 6(1) tariffs, yet must remain proportionate to the offence proved.

(b) Reinforcement of plea resolution discipline

The judgment is a clear appellate signal that sentencing must respect the integrity of plea agreements and prosecutorial decisions not to proceed with more serious counts. This can affect:

  • Case management and plea negotiations: parties should ensure the factual basis is clear, especially where the narrative overlaps with more serious allegations.
  • Sentencing remarks: judges should expressly demonstrate how the chosen term is derived from the count of conviction and agreed facts.

(c) Practical consequence: the value of articulated ranges

Echoing R v Collins & Mateer [2025] NICA 50, the case underlines that clear submissions on sentencing ranges—especially in areas with sparse direct guidance—can materially reduce the risk of appellate intervention.

4. Complex Concepts Simplified

  • Article 7 sexual assault (intentional sexual touching): a non-consensual sexual touching offence; it does not require penetration. Sentencing varies widely depending on context (violence, vulnerability, planning, location, persistence, impact).
  • Article 6(1) offence (digital penetration): a more serious penetrative sexual offence often used as a comparator, but not a strict tariff cap for Article 7.
  • “Left on the books”: counts remain formally on the indictment but are not proceeded with following a plea. The defendant is not sentenced for these unless there is a lawful mechanism (e.g., admitted facts expanding the basis) permitting consideration, which was not present here.
  • ABE interview (Achieving Best Evidence): a structured method of recording a complainant’s evidence (often video-recorded) to preserve best-quality testimony, particularly in traumatic or vulnerable-witness contexts.
  • SOPO (Sexual Offences Prevention Order): a civil preventative order that can impose restrictions to protect the public. The trial judge made no SOPO and that aspect was not in issue on appeal.
  • Custody/licence split: in Northern Ireland, sentences may be served partly in custody and partly on licence in the community, subject to conditions and recall.

5. Conclusion

[2026] NICA 4 is significant for two connected reasons. First, it reasserts a foundational sentencing principle: courts must sentence for the offence of conviction on the agreed facts, and must not (explicitly or implicitly) punish an offender for more serious counts left on the books. Second, it provides practical, if cautious, guidance on Article 7 sentencing in adult-on-adult cases: while Article 6(1) authorities such as Byrne & Cash [2020] NICA 16 and TH [2015] NICA 48 inform proportionality, they do not create a rigid upper limit for aggravated Article 7 offending; the outcome must be calibrated to culpability, harm, and risk, and transparently reasoned.