H, R v

Factual and Procedural Background

The Appellant, aged 63, was sentenced on 31 August 2016 at The City Crown Court to twelve months' imprisonment (six months in custody and six months on licence) for sexual assault contrary to Section 7(1) of the Sexual Offenders (Northern Ireland) Order 2008. The offence occurred on 10 May 2015 when the Appellant sexually assaulted his 20-year-old nephew by attempting to perform oral sex on him while he slept. The evening prior involved socialising with family and alcohol consumption. The nephew initially intended to sleep on a sofa but was persuaded by the Appellant to sleep in a double bed, where the assault took place. The nephew reacted by punching the Appellant and subsequently reported the matter to the police, who interviewed the Appellant, who effectively admitted the offence.

Due to a Legal Aid dispute, the Appellant was not arraigned until 8 March 2016, when he pleaded not guilty but admitted the act and accepted that there was no consent, arguing a reasonable belief in consent. On the day of trial, after a jury was sworn, he applied to plead guilty. A Pre-Sentence Report and victim impact statements were prepared, and sentencing took place on 31 August 2016.

Legal Issues Presented

The opinion addresses a procedural matter and does not frame distinct legal issues.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the sentencing exercise and found the trial judge’s sentencing remarks lacking in clarity and transparency. It was unclear what the starting point for the sentence was, what adjustments were made for aggravating or mitigating factors, and what credit was given for the guilty plea. The court emphasised that guilty pleas, even if late, should attract some credit, particularly as they spare the victim from giving evidence and provide vindication.

The court also noted that the trial judge appeared to place significant weight on the victim impact report as an aggravating factor but failed to sufficiently address the probation report's recommendation for a community-based penalty. The probation report described the Appellant as a hardworking individual with no prior convictions but identified concerns about his understanding of boundaries and risk-taking behaviour, recommending probation supervision with offence-focused work.

Considering the Appellant’s age, employment, remorse, and the breakdown of family relationships, alongside the public interest and the need for rehabilitation, the court concluded that a probation order would better serve the public interest than a short custodial sentence.

Holding and Implications

The court ALLOWED THE APPEAL and substituted the twelve-month custodial sentence with a two-year probation order. The probation order requires the Appellant to actively participate in any programme recommended by a supervision officer to reduce risk and to cooperate with assessments by the probation service regarding suitability for offence-focused work.

This decision directly affects the Appellant by replacing imprisonment with a community-based sanction aimed at rehabilitation. The court did not establish new precedent but reinforced the importance of sentencing transparency and the proper consideration of probation reports in sentencing decisions.