High Court doubles length of custodial sentence for man convicted of attempted rape

Michael McCarthy, the respondent, was originally sentenced to five years’ imprisonment after being convicted of five charges. The sentences for each of the charges were to run concurrently, with three other charges relating to indecent photographs of the complainer in the assault charge carrying sentences of two to three years’ imprisonment each.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. A Prentice QC appeared for the Crown and McSporran QC for the respondent.

Appalling nature

The offences in the rape and assault charges both took place in 2019. The respondent had known the complainer in charge 1, PD, for many years, and he had been visiting the respondent in his new rented accommodation when the offence occurred. The respondent attempted to set the complainer’s jacket alight with a lighter and an aerosol can before trying to put his penis into the complainer’s mouth.

The complainer in charge 3 had been invited to the respondent’s house to take drugs. When he arrived at the house he was restrained and sprayed with cold water from a shower hose for about 10 minutes. He was told by the respondent that he was going to murder him before the respondent ejaculated onto his shoulder while filming him. The video was circulated to a number of persons known to the complainer and the respondent before the respondent’s phone was seized by the police.

At sentencing, the advocate depute tendered a list of the respondent’s previous convictions, including several for assault to injury, breaches of probation and court orders, and contraventions of the Firearms Act 1968. In mitigation, counsel for the respondent made available a Criminal Justice Social Work Report prepared in December 2018, after he declined to be interviewed for a new CJSWR, which detailed the respondent’s drug addiction and noted that unless he was prepared to address his issues further offending was likely.

The sentencing judge considered that the 2018 CJSWR could not form the basis for an extended sentence, which he considered required an up-to-date report. He noted that no physical injury was libelled or proved in either case and was of the view that sentences of five years in total were sufficient to mark the gravity of the assaults, committed against victims who were vulnerable in different ways and in each case unable to escape.

It was submitted for the Crown that an extended sentence should have been imposed. The judge could have called for another report with no input from the respondent if he was of the view that an up-to-date report was required. Given the appalling nature of the offences and the respondent’s record, the sentence imposed was not only lenient, but unduly so.

High risk

Delivering the opinion of the court, Lord Matthews began: “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.”

Considering the requirements for such a sentence to be imposed, he explained: “It is customary for reports, which are prepared in contemplation of an extended sentence, to incorporate a Risk Assessment. While no doubt such assessments are prepared by social workers to comply with their own professional standards, it is not an absolute requirement before a court can proceed to impose an extended sentence. A report about the offender and his circumstances is all that is required.”

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.”

Lord Matthews concluded: “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 therefore quashed the sentences in respect of charges 1 and 3 and substituted in their place an extended sentence of 10 years’ imprisonment, consisting of a custodial element of seven years and a three-year extension period. The sentences in respect of charges 4 to 6 were left undisturbed.