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'toxic environment' Brothers who sexually abused sister (6) were also victims appeal court hears

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Two brothers who sexually abused their sister when she was only six years old and they were both teenagers were also victims who had been raised in a “toxic environment of sexual misconduct”, a court was told today.

The brothers, who cannot be named for legal reasons, had both pleaded guilty at Castlebar Circuit Criminal Court in October 2019.

The older brother, who was aged between 19 and 20 at the time of the offending, had admitted that on a date unknown between January 15, 2007, and January 14, 2008, he sexually assaulted his younger sister contrary to Section 2 of the Criminal Law (Rape) Act 1990.

At the same hearing, the younger brother admitted that on the same dates when he was 15, he sexually exploited the girl contrary to Section 3 of the Child Trafficking and Pornography Act 1998.

In January this year, both were given custodial sentences by Judge Rory P. MacCabe.

The older brother was handed down a three-and-a-half-year term, with the final 12 months suspended for five years; the younger sibling was ordered to serve two years behind bars, with the final nine months also suspended for five years.

The brothers later launched appeals against their sentences.

In both appeals, it was stated the sentences were too harsh and that the judge failed to give sufficient weight to mitigating factors, such as early pleas and the personal circumstances of the accused, when jailing both men.

It was also submitted that both headline sentences, five years for the older brother and three for the younger, had been too high.

Today, the Court of the Appeal ruled that the younger brother’s sentence was too harsh and that he should be released.

The older brother’s appeal was dismissed.

Séamus Clarke SC, who was representing both appellants, told the court that the house they had grown up in had been a “toxic environment of sexual misconduct”.

He said the younger’s brother offence had been an “opportunistic incident” and involved him asking his younger sister to touch his penis after she walked by him when he was urinating at the back of the house.

Mr Clarke said his client, who was now 29, was “very much a victim” who had suffered “systematic abuse” from his older brother, who in turn had been abused by a neighbour.

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A written submission to the court described how the younger brother was first abused when he was seven and that the abuse, which involved “sexual acting” with his brothers, took place 5-6 times a week and lasted for several years.

The appellant, Mr Clarke continued, had “made admissions” and pleaded guilty at an early stage in proceedings and was therefore entitled to a non-custodial sentence.

The older brother, now aged 34, had been an “over-sexualised young child” as a result of being abused by a neighbour when he was 12 years old, counsel said.

A background report prepared for the judge in advance of the sentencing at Castlebar Circuit Criminal Court, and which had been referred to in the defence’s submission, stated that the older brother had been “groomed” by an older neighbour into sexual activity when he was 12 and the abuse continued until he was 21.

Although the abuse he was convicted of did not involve penetration, Mr Clarke conceded the offence was still “a serious sexual assault”.

Counsel said, however, that the assault had been a “one-off” and the sentence he received was too severe.

“His moral culpability seems to have been derailed because he was being abused by a neighbour,” Mr Clarke added.

His client, he said, “had moved on” since the offence, was married and his wife was present in court to support him.

Pat Reynolds BL, for the Director of Public Prosecutions, told the court he had no evidence to suggest the victim had not been prepared to give evidence in court against her brothers.

In relation to the younger brother, Mr Reynolds said it was “difficult to argue” that his offence didn’t “rest in the lower level” and the sentence handed down by the judge was the correct one.

He also told the court the headline sentence identified in the older sibling’s case was appropriate.

“It was a particular nasty and odious offence and involved humiliation,” Mr Reynolds continued, adding that the trial judge took account of all mitigating factors “as he normally does” during sentencing.

In a judgement delivered today by Ms Justice Isobel Kennedy, who was sitting with Court President Mr Justice George Birmingham and Mr Justice Patrick McCarthy, the younger brother was told that the sentence imposed on him was “too severe”.

She said he had been 15 years old at the time of the offending and an “intervention was required by this court”.

He was told that the suspended portion of his sentence would now begin on November 19 and before his release he must comply with a bond to place himself under the supervision of the probation services for 18 months.

Dismissing the older brother’s appeal, Ms Justice Kennedy said that the custodial term was “within the margin of appreciation afforded to a trial judge” and that the three-judge court could not identify any error in the sentence.

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