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Man Convicted of Attempt Rape has his Custodial Sentence Doubled by High Court

Michael McCarthy, the respondent, was given a five-year custodial sentence after he was convicted of five charges involving attempted rape and sexual assault of two male complainers. The sentence for each of the charges were to run concurrently. The other three charges which involved indecent photographs and assault resulted in sentences of two to three years’ imprisonment each 

The rape and assault charges occurred in 2019, in respect of charge 1 the respondent had known the complainer for a number of years. The respondent attempted to set the complainer’s jacket alight and attempted to put his penis into the complainer’s mouth. In relation to charge 3 the respondent had invited the complainer to his house to take drugs. On arrival the complainer was restrained and sprayed with cold water for approximately 10 minutes. The respondent filmed the complainer whilst he ejaculated onto his shoulder. The video footage of this was viewed by a number of people known to the complainer and the respondent. 

The respondents previous convictions were listed at sentencing which included assault to injury, contraventions of the Firearms Act 1968 and breaches of court orders. The respondent declined to be interviewed for an up to date Criminal Justice Social Work Report. However, counsel referred to a report produced in 2018, which addressed the respondent’s drug addiction and stated that unless he was willing to address his issues then it was likely he would reoffend. 

The sentencing judge noted that the CJSWR produced in 2018 was unable to form the basis for an extended sentence. The judge observed that no physical injuries were libelled and determined that a five year sentence was sufficient. It was submitted by the crown that an extended sentence should be imposed. The Crown argued that the judge could have requested an up to date CJSWR with no input from the respondent. It was argued that the sentence was extremely lenient given the nature of the crimes committed 

Lord Matthews in delivering the opinion of the court stated: “It was entirely correct for counsel to point out that no accused person can, by his own hand, prevent the court from imposing an appropriate sentence, including an extended sentence. We are quite satisfied, having considered the appalling and degrading nature of charges 1 and 3 and the respondent’s record, that the question of an extended sentence was one which the trial judge had to consider.”

He continued: “Where the offender refuses to cooperate in the preparation of a report this does not mean that a report should not be prepared. It can be based on the information available to the social worker. As it happens, there was a Risk Assessment in the December 2018 report and it made reference to the respondent’s previous convictions. As counsel pointed out, it was relatively recent. In our opinion, it would have been open to the trial judge to rely on that report for the purposes of the statute.”

In concluding Lord Matthews stated: “An extended sentence may be imposed in respect of a cumulo sentence. It is clear to us, having regard to the content of the report, the nature of the offences and the respondent’s record, that he represents a high risk of endangering the public. We are not satisfied that the conditions of an ordinary licence would be sufficient to protect the public when he is released from prison and accordingly an extended sentence must be imposed.”

The court imposed an extended sentence of 10 years’ imprisonment, comprising a custodial element of seven years and a three-year extension. 

 

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