Anonymised Summary of Appellate Judgment

Factual and Procedural Background

The Appellant was convicted in the Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and acquitted of rape and assault by penetration (counts 1 and 2). The offending arose from a meeting arranged via a dating app on 27 October 2020. After dinner and mutual alcohol consumption the Appellant accompanied the complainant to her home. There was some consensual sexual activity which the complainant asked to stop. As the Appellant prepared to leave he kissed the complainant on the lips in circumstances she described as him pushing her against a wall; that non‑consensual kiss formed the basis of the sexual assault conviction (count 3).

At first instance (the trial judge) the Appellant was sentenced on 16 April 2024 to an 18‑month community order, with a 30‑day rehabilitation activity requirement (RAR), 200 hours unpaid work, payment of £1,800 towards prosecution costs, and notification obligations under Part 2 of the Sexual Offences Act 2003 for five years. The Appellant appealed by permission on the ground that the sentence was manifestly excessive, specifically challenging the length of the community order and the inclusion of RAR days.

Legal Issues Presented

1. Whether the sentence imposed was manifestly excessive in that the 18‑month community order duration was longer than justified.
2. Whether the rehabilitation activity requirement (30 RAR days) was justified in the circumstances.
3. Whether the Court of Appeal has power to order payment of privately funded appellate legal costs from Central Funds (raised when counsel sought permission to apply for taxation from Central Funds and adjourned for written application).

Arguments of the Parties

Appellant's Arguments

• The sexual assault fell at the lower end of seriousness within category 3B of the Sentencing Council guidelines and should not be aggravated by aspects of conduct related to counts of which the Appellant was acquitted.
• Strong mitigation existed: previous good character, positive references, steady full‑time employment and delay between interview, charge and trial.
• The pre‑sentence report (author: Attorney Donaghey) recommended a 12‑month community order with unpaid work only and expressly advised that risks could be managed in the community; the probation officers who attended court and recommended RAR had not interviewed the Appellant.
• The 18‑month duration produced collateral consequences (longer community order can engage notification requirements) and was thus unfair where a 12‑month order was sufficient and recommended by the author of the pre‑sentence report.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The appellate court accepted the trial judge correctly categorised the offence as within category 3B of the relevant Sentencing Council guideline and that a community order was the appropriate disposal. The court reviewed the guideline text on community order bands and requirements, noting that a high‑level community order has a starting point of intensive rehabilitative measures whereas a medium‑level order sits lower within the band.

The court analysed aggravating and mitigating factors identified by the trial judge: aggravation included the location (the complainant's home) and the complainant having felt compelled to leave her home; mitigation included the Appellant's good character, employment, delay and positive references. The court gave weight to the pre‑sentence report prepared by Attorney Donaghey, who had interviewed the Appellant and recommended a single requirement of unpaid work over 12 months, stating the risk of serious harm could be managed in the community.

The court observed a conflict between the written pre‑sentence report and oral recommendations made by probation officers at court who had not interviewed the Appellant; the trial judge had relied on the latter when imposing RAR days. Applying the Sentencing Council guidance and the report's assessment, the appellate court concluded that the offending sat towards the lower end of category 3B and that RAR days were not justified. The court found the combination of a 30‑day RAR and an 18‑month duration was unduly onerous and manifestly excessive. It determined that a 12‑month community order with 200 hours unpaid work permitted sufficient time for completion and supervision and accorded with the pre‑sentence recommendation. The court therefore quashed the original sentence and substituted the 12‑month order with unpaid work only. It noted that notification requirements apply automatically by operation of statute.

Holding and Implications

APPEAL ALLOWED; ORIGINAL COMMUNITY ORDER QUASHED; SUBSTITUTE COMMUNITY ORDER IMPOSED: 12 MONTHS WITH 200 HOURS UNPAID WORK (NO RAR).

Consequences: the 30‑day rehabilitation activity requirement and the 18‑month duration were removed and replaced by a 12‑month community order containing only a 200‑hour unpaid work requirement. All other orders from the original sentence (including the prosecution costs order and statutory notification obligations) remain in place; notification requirements apply automatically by law. The court did not set a new legal precedent beyond its application of the Sentencing Council guideline and the facts of this case.

Post‑ Judgment Procedural Note

The Attorney for the Appellant requested permission to apply for taxation of privately funded appellate costs from Central Funds. The court declined to decide the application orally, expressed concern about jurisdictional power to make such an order, adjourned that discrete application, and permitted a written application within 14 days setting out the legal basis and amounts sought. The court indicated it would consider the written submission and reserved decision on whether it had power to make such an order.