Hamad, R. v

Factual and Procedural Background

The Applicant renewed an application for leave to appeal against sentence after refusal by a single judge. Following a trial before Judge Cole and a jury on 20 June 2024 at The Court, the Applicant was convicted of one count of assault by penetration (count 1) and one count of intentional strangulation (count 2). On 4 October 2024 the trial judge imposed an extended sentence: a 12 year extended sentence composed of a seven-year custodial term and a five-year extended licence on count 1, with an 18-month concurrent term on count 2.

The Complainant, who was working as an escort employed by Company A, attended the Applicant's address on 7 April 2023. The Complainant was brought to the address by a Driver from Company A who waited outside. The events as found by the jury included unwanted touching, forcible digital penetration, and the Applicant placing a hand against the Complainant's throat. The Complainant eventually escaped, reported injuries and discomfort, and the police arrested the Applicant shortly after; the Applicant gave explanations in interview attributing memory loss to alcohol and denying sexual offending.

At sentencing the trial judge had a pre-sentence report which recorded the Applicant's prior convictions (including robbery, threatening behaviour and possession of an offensive weapon), concerns about lack of regard for consent, distorted thinking about sex, lack of victim empathy, and an assessment that the Applicant posed a high risk of sexual harm to adult women. The judge applied the relevant sentencing guideline for assault by penetration, selected a starting point of six years (category 2B), adjusted to seven years after aggravating and mitigating factors, and concluded that the Applicant was "dangerous" within the meaning of section 279 of the Sentencing Act 2020, justifying an extended sentence.

Legal Issues Presented

1. Whether leave to appeal against sentence should be granted in respect of the extended sentence imposed on the Applicant.
2. Whether the sentence was manifestly excessive given the facts, the Applicant's antecedents, the short-lived nature of the offending, and the level of distress to the Complainant.
3. Whether delay in bringing the matter to trial materially affected the appropriateness of the sentence.
4. Whether the trial judge was entitled to find the Applicant "dangerous" and thus to impose an extended sentence under section 279 of the Sentencing Act 2020.

Arguments of the Parties

Applicant's Arguments

• Attorney Montgomery submitted that the sentence was manifestly excessive in light of the facts and the Applicant's limited relevant antecedents for a 36-year-old man.
• It was argued that the context and short duration of the offending, and what was described as a relative lack of distress caused to the Complainant, supported a materially shorter sentence than the 12 year extended sentence imposed.
• Attorney Montgomery further submitted that the judge failed adequately, or at all, to reflect any element of delay in the case when determining sentence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the single judge's reasons for refusing leave to appeal and agreed with them. The court's analysis, relying on the material set out at trial and at sentence, proceeded as follows:

1. The trial judge was well placed to assess the seriousness of the offending, having observed the Applicant giving evidence, read the pre-sentence report, and evaluated aggravating and mitigating features. The judge started from the guideline category for assault by penetration (category 2B), adopted a six-year starting point and, after considering aggravating and mitigating factors (including the conviction for strangulation and prior convictions), fixed the custodial term at seven years.
2. The judge properly addressed dangerousness. The pre-sentence report recorded escalation in offending, lack of insight, distorted thinking about sex, and a high risk of sexual harm to adult women. The judge noted an absence of remorse and concerning post-offence remarks by the Applicant, and concluded there was a significant risk of serious harm from further specified offences; on that basis an extended determinate sentence under section 279 of the Sentencing Act 2020 was appropriate.
3. As to delay, the single judge concluded that any delay was not inordinate and would not have made a material difference to the sentencing outcome given the seriousness of the offending.
4. The court accepted the single judge's view that the Complainant's occupation (as an escort), her response after the offence, and the Applicant's prior conduct did not detract from the seriousness of the offence nor undermine the judge's assessment of dangerousness.

Holding and Implications

DISPOSED OF: The renewed application for leave to appeal against sentence was refused. The court expressly agreed with the single judge's reasoning and concluded the Applicant's grounds were not arguable.

Implications: The trial judge's sentence — a 12 year extended sentence comprising seven years' custody with a five-year extended licence on count 1 and an 18-month concurrent term on count 2 — stands. The court indicated no new legal principle or precedent was established; the decision affirms the trial judge's application of the sentencing guideline, the assessment of dangerousness under section 279 of the Sentencing Act 2020, and the view that delay and the victim's occupation did not materially affect the propriety of the sentence in this case.