The Third Circuit Court agrees with a district judge that 40 years is not too long a sentence for a pervert who video his rape of a 12-year-old girl.

The court said 15th Dist. Judge Kristian Earles’ sentence of John Franklin Breaux was within the court’s discretion and affirmed it.

The case began in Feb. 23010 when an Acadia Parish teacher confiscated a cell phone from a student when it begain ringing in class.

When the principal and another school staff member searched the phone to determine who owned it, they found a vido showing the victim engaged in sex with an older male. The victim’s younger brother could be seen in the video and appeared to be playing video games while the rape happened.

It was determined that the man in the video was Breaux, and that the victim was 12 when this incident occurred.

The victim’s brother stated that both he and another brother were present. The victim advised that the defendant had done this five different times in a two-year period in one manner or the other.

Breaux was indicted with aggravated rape of a juvenile, age 12, in violation of La.R.S. 14:42.

On Feb. 28, 2011, he pleaded guilty to the reduced charge of attempted aggravated rape. On Oct. 24, 2011,Earles sentenced Breaux to 40 years at hard labor without the benefit of probation, parole, or suspension of sentence.

In his appeal, Breaux aregued his sentence is unconstitutionally excessive., that he has no criminal history, he is a first -time offender, and he did not “attack, strike, hit, threaten, or force into submission the victim.”

The maximum sentence for attempted aggravated rape of a juvenile under the age of 13 is no less than ten and no more than fifty years at hard labor without benefit of probation, parole, or suspension of sentence.

The relevant question on appeal is whether the trial court abused its discretion in imposing sentence.

“We have reviewed the entire record in this matter including the exhibits filed into the record, the presentence investigation report, and the psychological report, all of which were before the trial court at the time of sentencing,” the ciricuit court noted

“The trial court stated for the record that he had reviewed the above-stated documents. He noted that the defendant is a first felony offender, which he found to be the only mitigating factor present. He also noted the heinous nature of the offense, the age of the victim, and the fact that the defendant videotaped the rape.”

The judges also noted Breaux received a “tremendous” benefit as a result of the plea bargain, in that his sentencing exposure was reduced from a mandatory sentence of life in prison without benefit of probation, parole, or suspension of sentence to a maximum of fifty years without benefit of probation, parole or suspension of sentence.

“After reviewing the record in its entirety, we find the trial court did not abuse its discretion by imposing a sentence of forty years at hard labor and without benefit of probation, parole, or suspension of sentence.”