Legal Reasoning
1) Categorisation and proportionality within Category 3B
The parties agreed the offence fell within category 3B of the relevant offence guideline, with a starting point
of a high-level community order and a range from a medium-level community order up to 26 weeks’ custody.
The Court endorsed the judge’s initial categorisation and her identification of the principal aggravating and mitigating factors.
However, it held that this case “obviously fell within the community order band” and, critically, that on its facts and mitigation
it sat below a high-level community order and towards a medium-level community order. That positioning mattered because
the imposed combination (200 hours unpaid work + 30 RAR days over 18 months) was treated as too intensive for the true seriousness.
2) Weight given to a properly prepared PSR vs. late informal probation input
A central feature was the disparity between:
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the PSR author’s considered recommendation (single requirement of unpaid work; 12-month order; risk manageable in the community),
after interviewing the appellant and reviewing the material; and
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the in-court probation view (not from the PSR author) suggesting RAR days should be added, despite not having interviewed the appellant.
The Court accepted the sentencing judge reminded herself she was sentencing only for the convicted conduct and not acquitted matters,
but it nonetheless found that the added RAR component and 18-month duration lacked justification on these facts given (i) strong personal mitigation
and (ii) the PSR’s reasoned position. The result was a community order “with requirements that were too onerous”.
3) Duration of the order and the notification regime: sentence must not be engineered
The appellant argued that the length of the community order mattered because sexual offender notification does not apply where the sentence is
less than 12 months, and that it was unfair for him to be subjected to registration requirements if 12 months (or more) was not justified.
The Court reduced the order to 12 months (not below), explicitly finding no basis to go lower. It also stated that the notification
requirements apply “automatically… as a matter of law”. The structure of the reasoning indicates an important principle: the court fixes the
sentence by reference to seriousness and a proportionate community-order package, and the statutory notification consequences follow.
The Court did not treat avoidance of notification as a sentencing aim capable of driving the term below what was otherwise justified.
4) Appeal costs and jurisdictional discipline
The appellant sought an order enabling privately funded appeal expenses to be met from Central Funds, citing Criminal Procedure Rules Part 45.
The Court expressed concern about its jurisdiction, referencing section 16(4) of the Prosecution of Offences Act, and declined either to grant
or refuse the application on the spot. Instead, it:
- made the substituted sentencing orders immediately;
- adjourned the remainder of the appeal (to avoid procedural finality issues); and
- directed a written application within 14 days addressing (i) legal power, (ii) why the order should be made, and (iii) quantum.
This is a practical reminder that costs in criminal appeals are not assumed: they require a clear statutory footing and a properly evidenced application.