DPP v McCormack

 
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2000 WJSC-CCA 3024

THE COURT OF CRIMINAL APPEAL

Barron J.

Budd J.

Kearns J.

116/99 718 CJA/99
DPP v. MCCORMACK
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
THOMAS McCORMACK

Synopsis:

Criminal Law

Sexual assault; sentencing; appellant had been convicted of aggravated sexual assault and attempted rape and had been sentenced to three years imprisonment with the last two years unconditionally suspended; appellant appealing against sentence and Director also appealing on the grounds that such sentence is unduly lenient; whether a custodial sentence is mandatory in the absence of a statutory direction to that effect; whether, having regard to the mitigating factors in the case, a custodial sentence was required in the instant case.

Held: Appeal allowed; appeal by D.P.P. refused.

D.P.P. v. McCormack - CCA: Barron J. - 10/04/2000 - [2000] 4 IR 356

1

Judgment of the Court delivered on 10th day of April 2000 by Barron J.

2

This is an appeal by the appellant against sentences of three years imprisonment upon a count of aggravated sexual assault and one of attempted rape both to run concurrently and with the last two years unconditionally suspended. There is also a cross-appeal by the Director of Public Prosecutions upon the ground that such sentence is unduly lenient.

3

The events leading to the prosecution occurred in the early hours of the morning of the 21st June, 1997. They took place in a county town. Both parties had attended a disco in a local hotel. The appellant who had attained his seventeenth birthday some two weeks before went to the disco with male friends from work who were roughly ten years his senior. The victim of the assault was approaching her twenty-second birthday and had gone to the disco with some female friends. They met at the disco and had not previously known each other.

4

They were obviously attracted to each other. The appellant had had more to drink than was good for him and it is likely that the conduct of the victim was influenced by a similar cause. In any event, they engaged in mild intimacies on the dance floor. They went outside where these intimacies increased in character. They were told to leave the premises and after they had done so, it was said by the appellant's counsel that the evidence which...

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