Macfhearchair, R. v

Factual and Procedural Background

This is an appeal by the Appellant against the imposition of a discretionary life sentence imposed on 18 October 2024 by the Crown Court. The Appellant was convicted after pleading guilty to multiple offences arising from incidents on 1 August 2023, including an attempt to sexually assault by penetration (the Schedule 19 offence, Count 3), stalking involving serious alarm or distress (Count 1), sexual assault (Count 2) and common assault (Count 4). The life sentence was imposed pursuant to s.285 Sentencing Act 2020 following a finding of dangerousness. The Appellant challenges that life sentence as manifestly excessive or wrong in principle with leave of a single judge. The court heard expert reports, a pre-sentence report, victim personal statements, and submissions from both parties. The appeal court reviewed the sentencing exercise and made a minor correction to the minimum term to account for an agreed number of days on remand.

Legal Issues Presented

1. Whether the imposition of a discretionary life sentence under s.285 Sentencing Act 2020 was manifestly excessive or wrong in principle.
2. Whether the sentencing judge erred in applying the factors identified in Attorney General's Reference No 27 of 2013 (R v Burinskas) when determining that a life sentence was justified.
3. Whether the calculation of the minimum term (including credit for plea and deduction for time on remand) was correct.

Arguments of the Parties

Appellant's Arguments

• Attorney Desai submitted the judge erred on each of the Burinskas factors and that the life sentence was not necessary.
• Contended there was insufficient evidence of "significant planning" or that the Appellant was "on the prowl" seeking victims; no evidence he remained searching between incidents.
• Argued the judge should not have taken into account the Appellant's failure to give further evidence about his reason for being in the area; burden of proof lies with the prosecution.
• Submitted the stalking offence (Count 1) was mis-categorised as higher harm and that location should not have been treated as aggravating.
• Maintained previous convictions did not justify life; pointed to gaps in offending and that some convictions were not for contact offences.
• Argued the judge placed excessive weight on inability to estimate how long the Appellant would remain dangerous and underestimated expert evidence (including the addendum) that treatment could address risk factors.

Respondent's Arguments

• Attorney Wilson submitted the judge conducted a careful sentencing exercise, applied the correct categorisations and aggravating factors, considered the Burinskas questions and reached the right conclusion that life was justified.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a careful review of the sentencing exercise and addressed the Burinskas factors in sequence. It upheld the sentencing judge's conclusions:

• Seriousness: The court agreed the Schedule 19 offence and associated offences were extremely serious. It accepted the judge's inference that the Appellant had been seeking lone young female victims that night, justifying the finding of "significant planning" and categorisation of the Schedule 19 offence as category A2.
• Previous convictions: The court accepted the sentencing judge's characterisation of the Appellant as a recidivist sex offender whose pattern of sexualised offending and breaches of SOPO/SHPOs demonstrated persistent and escalating behaviour.
• Risk and duration of dangerousness: The court found the expert evidence (Doctor Hopton and Doctor Duffield) and the pre-sentence report supported the judge's conclusion that it was impossible to say when, if ever, the Appellant would cease to pose a serious risk to young women, and that no reliable estimate of duration could be made.
• Alternatives and proportionality: The court accepted the judge had considered alternative sentences and that a life sentence remained the sentence of last resort but was justified on the facts and evidence presented. The court noted that uncertainty about duration of danger alone does not justify life unless other factors support that conclusion; here those other factors were present.
• Categorisation and aggravating factors: The court rejected the Appellant's challenges to categorisation and to treating location/time as aggravating, concluding the judge was entitled to those assessments (and that any suggested miscategorisation of Count 1 would not have changed the overall outcome or minimum term, especially given an arithmetical error that favoured the Appellant).
• Minimum term calculation: The court explained how the determinate notional sentence was reached, acknowledged an arithmetical slip by the judge that benefited the Appellant, and corrected the remand deduction by applying precedent requiring deduction by days, resulting in a revised minimum term.

Holding and Implications

APPEAL DISMISSED

Holding: The appellate court dismissed the appeal and upheld the sentencing judge's decision that a discretionary life sentence under s.285 Sentencing Act 2020 was justified on the facts and evidence presented. The court made one calculatory correction to the minimum term: treating the pre-deduction term of 5 years and 3 months as 5 years and 91 days and deducting 438 days of remand, resulting in a minimum term of 4 years and 18 days.

Implications: The direct effect is that the life sentence and dangerousness finding remain in place and the minimum term is marginally reduced to reflect the corrected remand deduction. The opinion applies established authorities (notably Burinskas) and does not purport to create new legal precedent beyond applying those authorities to the facts of this case.