Wachowiak, R. v

Factual and Procedural Background

This is an application for leave to appeal against sentence referred to the Full Court by the Registrar. The Plaintiff prosecuted and the Defendant (aged 29 at the time of the hearing) was formerly a Corporal in Company A. On 18 February 2026 the Defendant was convicted after trial before The Military Court (held at The Military Court) of an offence under section 42 of the Armed Forces Act 2006, namely sexual assault contrary to section 3 of the Sexual Offences Act 2003. The incident occurred on 23 January 2025 during a social event at Exercise A in The State. The complainant was also a member of HM Forces; they did not know one another prior to the exercise. At the event the Defendant repeatedly approached the complainant, made unwelcome comments and, at the bar, grabbed and squeezed the complainant's left breast. The complainant reported the incident, identified the Defendant, and a subsequent investigation led to interviews in which the Defendant denied the offence. At trial the complainant gave evidence; the Defendant denied touching the complainant. The Court Martial convicted. On 12 March 2026 the Court Martial imposed dismissal from His Majesty's Service, reduction in rank, 140 days' service detention (with the Defendant placed on the sex offenders register for five years). The Defendant sought leave to appeal the sentence; the application was heard by a three-judge Full Court including Judge EDIS, Judge SAINI and Judge HILL. The Defendant was represented by Attorney CLARK; the prosecution was represented by Attorney AINSWORTH.

Legal Issues Presented

1. Whether the sentence imposed by the Court Martial, in particular dismissal from service and 140 days' service detention, was manifestly excessive.
2. Whether the Court Martial erred in treating the Defendant's rank as an aggravating factor given the Defendant was off-duty at the time of the incident.
3. Whether the Court Martial failed to give sufficient weight to the Defendant's previous good character and the pre-sentence report (including its recommendation for a non-custodial sentence).
4. Whether the custodial element should have been suspended or avoided, and whether the assault was of such a "momentary" nature that a custodial sentence was inappropriate.

Arguments of the Parties

Defendant's Arguments (Attorney CLARK)

• The overall sentence, especially dismissal from service, was manifestly excessive and disproportionate to the offending.
• The Court Martial wrongly gave weight to the Defendant's non-commissioned rank although the Defendant was off-duty at the time.
• Insufficient weight was given to: (a) the Defendant's positive good character and service record; (b) the pre-sentence report's recommendation for a non-custodial sentence; and (c) the effect of dismissal on the Defendant.
• The offending was "momentary" and did not justify immediate custody; if any detention was appropriate, 140 days was too long.

Plaintiff / Prosecution's Arguments (Attorney AINSWORTH)

• There was no error of principle in the Court Martial's approach; the Service Guidance and the Definitive Guideline were properly applied.
• The Armed Forces appropriately treat sexual offences seriously given their effect on trust, morale and operational effectiveness.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court undertook a step-by-step analysis confined to the material before it. It accepted the Court Martial's placement of the offence in category B3 (Culpability B, Harm 3), noting that this categorisation was not in issue and had been agreed. The Court explained that the Definitive Guideline's B3 starting point is a high-level community order with a range up to six months' imprisonment. The judge had taken a start point equivalent to four months' imprisonment (120 days) to reflect moving to the upper limit of the B3 bracket after assessing aggravating and mitigating factors. Pursuant to the Service Guidance (section 4.5.2), the judge added 20 days to reflect service detention as an alternative to a civilian prison regime, producing a total of 140 days' service detention. The Court accepted the Service Guidance's comparison (section 4.6.4 and reference to paragraph 93A of Schedule 3 of the Sexual Offences Act 2003) that 140 days' service detention is akin to a medium level community order, and thus within the lower end of the Definitive Guideline range when read with the Service Guidance.

On the contention that the assault was "momentary", the Court rejected that characterisation as inconsistent with the complainant's evidence and her reaction. Regarding suspension, the Court endorsed the judge's conclusion that the seriousness of the offence required immediate custody and that service detention rather than suspension or a community order was justifiable, including for pragmatic resettlement reasons and to relieve prison pressure.

On the rank/off-duty issue, the Court held that participants in Exercise A were properly treated as on duty for sentencing purposes; accordingly the Defendant's rank could be taken into account in line with Service Guidance section 3.1.12 (consideration of rank or rate). On dismissal, the Court endorsed the Service Guidance principle that dismissal is appropriate in sexual offence cases except in the most exceptional cases, and found dismissal not disproportionate given the service context and policy considerations.

Finally, the Court found that the Court Martial had properly considered the Defendant's good character and the pre-sentence report (including its non-custodial recommendation) but was entitled to conclude custody was required.

Holding and Implications

HOLDING: The Full Court granted leave to appeal against sentence but DISMISSED the appeal, upholding the Court Martial's sentence (dismissal from service, reduction in rank, 140 days' service detention, and placement on the sex offenders register for five years).

Implications: The direct effect is that the original sentence remains in force. The Court emphasised that, in the military context and applying the Service Guidance alongside the Definitive Guideline, dismissal and the custodial element were lawful and not manifestly excessive. The opinion does not purport to establish a new precedent beyond affirming the application of the Service Guidance and Definitive Guideline to these facts.