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

The appellant had received two three year sentences in respect of a sexual assault charge and an attempted rape charge. Both sentences were to run concurrently and the last two years were unconditionally suspended. The victim did not wish a custodial sentence to be imposed and made representations to this effect. The trial judge had certified that the case was a fit case for appeal in relation to the imposition of sentence. The appellant appealed against the sentences imposed while the Director of Public Prosecutions cross-appealed on the grounds that the sentences were unduly lenient. Barron J, delivering judgment, held that there were a number of mitigating factors present. Both the probation report and psychiatric evidence were favourable to the accused. In view of the circumstances a custodial sentence was not appropriate. The appeal of the appellant was therefore allowed and the cross-appeal of the Director of Public Prosecutions was dismissed.

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 would have been given at a trial indicated that their conduct continued and in fact drew a crowd.

5

They then went to a secluded area where the offences took place. At some stage, the victim had asked the appellant whether he had a contraceptive. He had. She did so expecting that he did not and in order to let him know that she did not want sex. This, however, led him to think the opposite and when she later made it clear that she did not want sex, he lost his temper, said he would kill her and hit her around the face. He also forced her to take off most of her clothes. However, although he did try he was physiologically unable to have sex. She was...

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