A judge has suspended the prison sentence of a man who admitted in 2002 to sexually abusing a child because of the “unconscionable delay” in prosecuting him.
Kevin Brazil (50) admitted to sexually abusing the then 12-year-old boy when gardaí interviewed him in 2002, but no file was sent forward to the Director of Public Prosecutions (DPP).
Dublin Circuit Criminal Court heard that the garda investigating the allegations in 2002 is now deceased. In 2016 the investigation was revived when the victim again made the allegations against Brazil.
Sentencing him on Friday Judge Elma Sheahan said that had matters been properly prosecuted by the state, the accused would not now be facing these charges at this remove. She said that if not for "the unconscionable delay of the state" a custodial sentence would be inevitable.
She sentenced Brazil to three years imprisonment, but said because he acknowledged his guilt in 2002 and has not offended since his release from custody for another offence, the principle of proportionality was best served by suspending the entirety of the three year sentence for a period of three years.
Brazil, of Wainsfort Manor Grove, Terenure, Dublin pleaded guilty at Dublin Circuit Criminal Court to seven counts of sexually assaulting a child in the city on unknown dates between April 1, 2002 and June 30, 2002.
The court heard that Brazil had approached the child on a street and arranged for him to come to his flat at a previous address, where he abused him. He met him a number of other times over the following months.
After the boy made a complaint to gardaí, Brazil was interviewed by gardaí. He told gardaí that he had performed oral sex on the boy and that he had given the boy money and cigarettes.
Brazil has 16 previous convictions for sexual assaulting a child, all relating to the abuse of another boy between March 2000 and July 2002. In 2004, Brazil was sentenced for these offences to three years imprisonment with the final year suspended.
Superintendent Barry Walsh told Patrick Gageby SC, defending, that he was not in a position to say why a file had not been sent to the DPP regarding the earlier offences. He said that he was the investigating garda in relation to the allegations that were prosecuted in 2004 and that he was unaware at the time of these other offences.
Mr Gageby said that the delay in prosecuting this case was not the fault of his client. He said his client has not offended since being released from custody.
Judge Sheahan said that if a file had been sent to the DPP after Brazil made admissions in 2002, it most likely would have been prosecuted alongside his other convictions for sexual assault.
Judge Sheahan said that understandably the victim faced great anxiety because of the failure to bring closure to these matters. She said that, in fairness to Brazil, this cannot be laid at his door as he made admissions in 2002 and pleaded guilty when charges were brought against him.
She said the case was aggravated by the seriousness of the offending, the age disparity between the parties and Brazil engaging in similar offending over the same time period.
Judge Sheahan said the mitigating factors in the case were the accused’s early pleas of guilty, the admissions made in 2002, his employment history, his efforts made to rehabilitate, his remorse and the fact that he has not come to garda attention since his release from custody in 2006.
Superintendent Barry Walsh told Antonia Boyle BL, prosecuting, that in April of 2002, Brazil approached the victim on a street in Dublin city centre. Brazil later made an arrangement with the boy to come to the accused's apartment.
In the apartment, Brazil asked the boy to sit on his knee and then asked him if he wanted “to do some stuff with him”. Brazil took the boy’s trousers down and performed oral sex on him.
As he was leaving the apartment, Brazil gave the boy €40 and told him not to tell anyone. Similar incidents occurred over the three month period.
On one such other occasion, Brazil rang the boy’s mother claiming to be the father of a friend of his and asked if the boy could stay in his home for the night. Brazil told the boy he would wash his clothes and got the boy to strip naked before going to bed.
The boy woke in the middle of the night to find Brazil on top of him, naked and grinding their genitals together. This continued for around 10 or 15 minutes.
In his victim impact statement, which was read before the court, the victim said that being sexually assaulted was his first sexual experience and that he had “little or no idea how wrong what he was doing to me was”.
The victim said that he did not deal with the psychological effect of what happened to him “at all well”. He said that had he not had to endure what Brazil did to him, his life would be different now.
He said he had great difficulty interacting with people one on one. He said he feels threatened by gay males, something he feels bad about because he knows the vast majority of the gay community are good people.
The victim said he hopes to leave what was done to him in the past.