Short Sexual Offence Sentences: Mandatory Consideration and Explanation of Community Disposal (Watson Not a Rigid Rule)

1. Introduction

Kasak, R. v ([2026] NICA 2 (Rev1)) is a sentence appeal in the Court of Appeal in Northern Ireland (Keegan LCJ, Treacy LJ and Smyth J) concerning a single count of attempted sexual communication with a child under 16, contrary to Article 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Article 22A of the Sexual Offences (Northern Ireland) Order 2008.

The appellant (Sebastian Kasak) pleaded guilty at arraignment. The sentencing judge imposed 12 months’ immediate custody (split equally between custody and licence) and made a five-year Sexual Offences Prevention Order (SOPO). The maximum sentence for the offence is two years’ imprisonment.

The appeal challenged the sentence as manifestly excessive and wrong in principle, focusing on two alleged errors: (i) treating custody as effectively inevitable (and excluding a community disposal), and (ii) adopting an unduly high starting point (18 months before plea reduction).

2. Summary of the Judgment

The Court of Appeal allowed the appeal and substituted a two-year probation order for the determinate custodial sentence. The SOPO and ancillary orders remained in place.

While confirming that offences involving the (attempted) sexual exploitation of children are serious and that the custody threshold was met on the appellant’s own concession, the Court held that:

• The sentencing judge misread and over-applied R v Watson [2022] NICA 71 as if it required immediate custody in all such cases.
• The judge did not adequately engage with whether a community-based disposal (including an enhanced combination order) was viable, despite a strong probation report and the reality that the case could only attract a short sentence.
• The imposed sentence reflected an improper “importation” of the Watson outcome rather than an individualized assessment.

3. Analysis

3.1 Precedents Cited

R v Watson [2022] NICA 71

The sentencing judge relied heavily on R v Watson [2022] NICA 71, quoting passages emphasising that child sexual exploitation offences are serious and that, on the facts of Watson, a custodial sentence was warranted and a community disposal rejected.

The Court of Appeal in Kasak carefully constrained Watson’s reach:

• Fact specificity: Watson involved five offences spanning multiple categories (including attempted causing a child to watch sexual activity and attempted inciting indecent image conduct) and included offending with a much higher maximum penalty (14 years for some conduct). The Court held that Watson’s custody discussion was anchored to “the full circumstances” of that case.
• Obiter warning: The Court noted that in Watson a community option was not practically available due to the appellant’s physical debility, so the statement rejecting a community penalty was, in substance, obiter (not necessary to the decision).
• No “rigid rule”: The key corrective in Kasak is the express guidance that Watson must not be treated as establishing an automatic custody rule for sexual communication offences; sentencing remains case-sensitive and proportionate.

R v Pacyno [2024] NICA 3

The Court drew on R v Pacyno [2024] NICA 3 to underline a structured sentencing obligation: where a court contemplates a sentence of 12 months or less (or circumstances otherwise demand it), the judge should actively consider whether a non-custodial option is appropriate, and should explain why the selected disposal is chosen.

Importantly, the Court in Kasak stressed that the “explain why” obligation runs both ways: a judge must explain not only why a community option is selected, but also why it is rejected when a short custodial term is imposed.

R v Sholdis [2024] NICA 4

The Court cited R v Sholdis [2024] NICA 4 as an illustration of the “outworking” of the Pacyno approach in sexual offending cases where a short determinate sentence (12 months) had been imposed. In Sholdis, the Court emphasised community disposals where rehabilitation is realistically achievable, noting the public protection benefits of education and structured intervention, and it substituted a probation order.

Kasak aligns with Sholdis by emphasising that, for some offenders, a properly structured community order can better reduce reoffending risk than brief custody.

3.2 Legal Reasoning

(a) The “custody threshold” is a statutory gateway, not a destination

The Court grounded its analysis in Article 5(2) of the Criminal Justice (Northern Ireland) Order 2008:

“A court must not pass a custodial sentence on an offender unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified.”

Even where the threshold is met (as conceded here), the Court stressed that sentencing does not stop at “custody or not”: the judge must still decide whether immediate custody is necessary, particularly where any custody would be short.

(b) Short custody triggers heightened scrutiny of community options

The Court emphasised a practical and principled reality: where the maximum penalty is two years and the likely sentence falls at or below 12 months, the judge must confront whether a community-based option can achieve the aims of sentencing (including rehabilitation and public protection), and must give reasons for accepting or rejecting it.

(c) Individualised proportionality and the error of “sentence importation”

The Court held the sentencing judge effectively “imported” Watson’s sentencing outcome without sufficient factual distinction. That approach was labelled erroneous because it bypassed the core requirement of individualized proportionality.

The Court identified strong rehabilitative indicators from the probation report and surrounding evidence: a clear record, one-off conduct, remorse and victim empathy, low general reoffending risk, stable employment and family support. These factors, the Court held, demanded active consideration of a community disposal, especially given probation’s specific assessment that supervision could build risk-management and reduce sexual preoccupation.

(d) Reframing “punishment” and “public protection”

A notable strand of the reasoning is the Court’s insistence that probation is not a soft option. The substituted order would require longer structured engagement than the custodial term actually imposed and would carry targeted conditions aimed at preventing recurrence, thereby serving public protection in a more durable way than short imprisonment.

3.3 Impact

• Clarification of Watson’s limits: Sentencers are expressly warned not to treat R v Watson [2022] NICA 71 as laying down a categorical rule requiring immediate custody for sexual communication-type offences.
• Procedural discipline in short sentences: In cases where the court is considering 12 months or less, Kasak reinforces that judges must explicitly address community disposals and articulate their reasons—enhancing transparency and appellate resilience.
• Probation’s rehabilitative role is elevated: The judgment strengthens the proposition that, in suitable sexual offending cases, rehabilitation via probation can be a primary mechanism of public protection, not merely a mitigatory afterthought.
• Likely appellate consequences: Sentences at the short-custody end that fail to engage with probation/community options—especially where the probation report is strongly positive—are more vulnerable to being found wrong in principle.

4. Complex Concepts Simplified

• Custody threshold: A legal test requiring the judge to avoid prison unless the offence is so serious that neither a fine nor a community sentence can be justified. Passing the threshold does not automatically mean immediate imprisonment must follow.
• Starting point and guilty plea reduction: The “starting point” is the notional sentence before credit for a guilty plea. Courts then reduce it to reflect the plea, usually because it saves time, spares witnesses, and indicates acceptance of responsibility.
• Community-based sentence / probation order: A non-custodial disposal where the offender is supervised in the community under conditions. It can include structured work (e.g., interventions, monitoring, restrictions) designed to reduce reoffending.
• SOPO (Sexual Offences Prevention Order): A civil preventative order imposing prohibitions to manage risk (for example, restricting contact with children or online activity). Breach is a criminal offence and can result in imprisonment.
• Obiter: A remark made by a court that is not necessary to decide the case. It may be persuasive but is not binding as a statement of the ratio (core legal rule).

5. Conclusion

Kasak, R. v [2026] NICA 2 (Rev1) establishes a clear sentencing direction in Northern Ireland for short custodial outcomes in sexual offending cases: Watson must not be treated as an automatic custody template; where a sentence of 12 months or less is in contemplation, the court must actively consider community disposals and explain why such options are accepted or rejected.

The case also reinforces a modern protective rationale: for appropriate offenders—especially those with one-off conduct, remorse, stability, and a strong probation assessment— a structured probation order may better serve public protection than short imprisonment, while still reflecting the seriousness of the offending through stringent supervision, enforceable conditions, and the continuing constraints of a SOPO.