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McBrearty, R. v
Factual and Procedural Background
This is an appeal brought with leave of a single judge against a sentence imposed by Judge Kerr at The City Crown Court on 18/09/2025. The Appellant was charged on an indictment containing three counts: Count 1 - Assault with intent to commit rape or assault by penetration; Count 2 - Sexual assault (to which the Appellant ultimately pleaded guilty); Count 3 - Attempted sexual assault by penetration. The Appellant was first arraigned on 08/11/2024 and pleaded not guilty; he was rearraigned on 30/05/2025 and pleaded guilty to Count 2, with Counts 1 and 3 left on the books. The original sentence recorded in the judgment was for one count of intentional sexual touching contrary to article 7 of the Sexual Offences (Northern Ireland) Order 2008, with an ultimate sentence described as 45 months, split as 22½ months in custody and 22½ months on licence. The factual background (as accepted by the court) is that, in the early hours of 04/06/2023 in the area of May Street in The City, the victim—a lone female who had been drinking—was grabbed, pushed against railings, had her dress lifted and was touched through her underwear on her vagina; police arrested the Appellant shortly after. A recorded ABE interview and a presentence report were placed before the sentencing judge; the presentence report recorded the Appellant's account, his remorse, no prior sexual convictions, other antecedents, and an assessment that he was not a risk of serious harm but presented a high likelihood of general reoffending.
Legal Issues Presented
- Whether the sentencing judge erred in adopting a starting point of five years' imprisonment for a single count of non-penetrative sexual touching (article 7), such that the sentence was manifestly excessive and inconsistent with appellate guidance and comparable authorities.
Arguments of the Parties
Appellant's Arguments
- The judge erred in using a five-year starting point for a non-penetrative assault; this was too high and inconsistent with authorities for penetrative offences under article 6(1), which would not justify such a starting point.
- Consistency required a lower range; suggested appropriate range was 12 months to two years (maximum two years before reduction for plea).
Appellee's Arguments
- The Appellee accepted the defence range was close and suggested a slight increase: a starting point of two and a half years before reduction for plea; implicitly agreed the imposed sentence was too high.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Collins & Mateer [2025] NICA 50 | That counsel should assist courts by articulating the suggested appropriate range for sentencing. | The court noted the sentencing judge did not have the benefit of such focused submissions and referenced this judgment as guidance that ranges should be articulated to sentencing courts. |
| Byrne & Cash [2020] NICA 16 | Stated at para [14] that the offence (digital penetration of an adult) attracted a two-year sentence starting point absent aggravation or mitigation. | Used as the nearest authority for comparison; indicated a notional 2-year starting point for the more serious article 6(1) offence, from which the court considered departures for aggravation. |
| TH [2015] NICA 48 | Example of a digital penetration case resulting in a global sentence of three years where marked violence was involved. | Referenced to show where higher sentences were justified by marked violence, informing the court's assessment of comparative ranges. |
| GM [2020] NICA 49 | Authority dealing with child offending (article 6(1) context referenced). | Mentioned among other cases to illustrate the range for article 6(1) offending; contributed to the view that approved ranges for that offence have been 2–3 years. |
| CD [2024] NICA 9 | Principle that sentencing should consider culpability, harm and risk. | The court applied this tripartite framework (culpability, harm, risk) to assess whether the five-year starting point was proportionate in the present case. |
Court's Reasoning and Analysis
The court examined the sentencing judge's approach and the factual matrix. It identified the aggravating factors the judge relied on: (i) victim vulnerability (a lone female under the influence of alcohol); (ii) occurrence in a public place; (iii) some aggression used though injuries were relatively low; and (iv) persistence of the offending. Mitigation recognised included the guilty plea, absence of previous sexual convictions, and expressions of remorse. The sentencing judge adopted a five-year starting point and reduced by 25% for plea (a point not challenged).
The court considered comparative authorities for penetrative offences (article 6(1)) and noted a notional starting point in those cases of 2–3 years. It accepted that those authorities provided the nearest guidance but emphasised sentencing must be fact‑sensitive and a judge may move beyond the notional range where culpability, harm and risk justify it. Applying the CD framework, the court found high culpability given the predatory conduct, higher‑end medium harm and a high risk of general reoffending. Nevertheless, the court held that the sentencing judge had not adequately explained why he adopted a five‑year starting point and had effectively sentenced having regard to the more serious counts left on the books, which he was not entitled to do. Having considered submissions from both sides (including ranges suggested by counsel), the court concluded that a starting point of three years for the index offence, reduced by 25% for the plea to 27 months, was just and proportionate in all the circumstances.
Holding and Implications
APPEAL ALLOWED
Holding: The court allowed the appeal, concluding the sentencing judge erred by adopting a five-year starting point that reflected more serious offences left on the books; the court substituted a sentence of 27 months, to be served split equally between custody and licence.
Implications: The direct consequence is substitution of the Appellant's sentence to 27 months (custody/licence split). The court provided general guidance that sentencing for non‑penetrative sexual assault must be informed by culpability, harm and risk, that sentencing ranges should be articulated to sentencing courts (per R v Collins & Mateer), and that judges must not sentence as if more serious charges left on the books had been proceeded with. The court emphasised the need for flexibility in applying ranges to the facts of each case.
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