The Director of Public Prosecutions was criticised yesterday by a High Court judge who said he could not understand how the DPP felt able to "ignore the wishes of the legislature" in relation to the "threat to kill" offence.
Mr Justice Carney, speaking in the Central Criminal Court, jailed for three years a Co Galway teenager who attempted to rape and threatened to kill a girl he met at a disco.
Thomas McCormack (19), of Northhampton, Kinvara, had the final two years of his sentence suspended because of a plea by his victim that he not be jailed, his early guilty plea, his public apology to the victim and his remorse.
Mr Justice Carney released him on bail pending a ruling by the Court of Criminal Appeal on his policy of jailing defendants in cases where the victims had asked for non-custodial punishment. He said their wishes could not be decisive because the offences were public crimes.
Mr Justice Carney said there was a credible threat to kill in this particular case, and the victim believed she was going to die. The threat to kill was very serious and the Oireachtas had re-enacted it in legislation with a provision for 10 years' imprisonment. But the Director of Public Prosecutions had failed to include the charge in any of the sex assault cases which had come before the court since then.
"I don't understand why the DPP is able to ignore the wishes of the legislature in this way, but he apparently feels able to do so," said Mr Justice Carney. "If the charge had been included in this case the penalty I imposed would be much higher."
Det Sgt Joe O'Brien told Mr Patrick Gageby SC, prosecuting, that McCormack invited the victim to leave the disco with him. She did so, but began to feel uncomfortable and ran off. McCormack followed her and said if she did that again he would kill her. She feared she was going to be killed and agreed to have sex.
Mr Michael McMahon SC, defending, said his client had sought counselling for his sexual urges, his temper and his drinking.