R v Benjamin Willey

The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offence in this case and, under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 29 January 2024, the appellant was convicted in the Crown Court at Isleworth of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. He was acquitted of rape and assault by penetration which were counts 1 and 2 on the indictment.

On 16 April 2024, the trial judge (HHJ Lindsey Rose) sentenced the appellant to an 18-month community order with a rehabilitation activity requirement of 30 days and an unpaid work requirement of 200 hours. The appellant was ordered to pay £1,800 towards the prosecution costs and is required to comply with the notification provisions of Part 2 of the Sexual Offences Act 2003 for 5 years and may be included list by the disclosure and barring service.

The appellant appeals against sentence with the permission of the single judge. He does so on the ground that the sentence is manifestly excessive because the length of the community order is too long and the rehabilitation activity requirement is not justified.

The facts of this case date back to October 2020 and can be summarised shortly. The appellant met the complainant on a dating app. They then messaged via WhatsApp and made arrangements to meet on 27 October 2020. On that date, they went on a date and had some dinner. The appellant then accompanied the complainant home. They had each consumed a lot of alcohol during the date but both said they were not particularly intoxicated. The appellant had been insistent on taking the complainant home and although she did not want him to come into the house he persisted. He asked to use her bathroom and she agreed for him to do so. Once inside her home they kissed and there was some consensual sexual activity. The complainant then made it clear that she wanted that to end. As she got off the bed she said she wanted the appellant to leave. The appellant called himself a taxi. Before the appellant left he kissed the complainant again on the lips in a manner which the complainant described as occurring when the appellant pushed her against the wall. That occurred just before the appellant left the property and it was that kissing without consent that formed the sexual assault on count 3 of the indictment.

The appellant was 25 at the date of the offence and had no previous convictions. He is now 28 years old and he was employed full-time as a data engineer. He was, and is, employed full-time as a data engineer for a car company.

At the sentencing hearing the judge was provided with a victim personal statement, Defence Sentencing Note, prosecution responses to that note, various character references and a pre-sentence report and she had, of course, heard the trial. It was agreed between counsel that the offending fell within category 3B of the relevant Sentencing Council Guidelines which provides for a starting point of a high-level community order and a category range of a medium-level community order to 26 weeks’ custody. The judge also had a pre-sentence report prepared by Mr Donaghey, dated 24 March 2004. The opening section of that report set out the summary of the offence, much of which was taken from the CPS case summary. The middle section of that relates to the allegations of which the appellant was acquitted.

The pre-sentence report concluded by explaining by the author of the report: “In my professional assessment, the level of risk of serious harm can be managed within the community. I would recommend any order to compose a single requirement of Unpaid Work and to last a period of 12 months.” The author of the report had interviewed the appellant and considered all relevant matters in reaching that assessment and was well aware that the appellant had been acquitted of the matters at count 1 and 2 of the indictment.

We now turn to the sentence. The judge noted that in terms of aggravating factors the offence took place in the complainant’s home late at night and, as a result of the offending, the complainant was compelled to leave her home and has not lived there since. The appellant had also been drinking alcohol. In mitigation, the appellant was of previous good character and there was positive character evidence. The judge also noted the delay in the case and that the appellant had been charged two years after interview and the case had taken some 3½ years to come to trial and had been hanging over him in the meantime. The judge referred to the report from Probation and that no RAR days had been recommended. She then said that the officer who had attended court, having discussed the matter with senior probation officers at court, had recommended that such days be included and she explained what she had been told by the probation officer in court. The author of the report (Mr Donaghey) was not present at court. The judge noted the difference between the report and what the probation officers at court had told her and reminded herself that the sentence was ultimately a matter for her and, as far as she was concerned, any sentence passed should have a rehabilitative element and she was of the view that RAR days were required in this case as part of the sentence to address the issues of rehabilitation. The judge reminded herself (more than once) that she was sentencing the appellant for only the offence for which he had been convicted and not any other matters. She then passed the sentence we have identified at the start of this judgment, explaining that it was the least possible one, taking account of all the aggravating and mitigating factors and having regard to the seriousness of the offence.

The appellant’s ground of appeal is that the sentence passed is manifestly excessive for two reasons. First, the rehabilitation activity requirement was not justified, and second, the 18-month period of the community order is too long. Ms Karaiskos KC, for the appellant, submits that the offence of sexual assault was at the lower end of seriousness and although the judge correctly identified the aggravating features, caution should be adopted when assessing their impact. In particular, although it is accepted the complainant felt compelled to leave her residence due to this case, the conviction for sexual assault should not be aggravated by the alleged behaviour in respect of counts 1 and 2 of which the appellant was acquitted by the jury.

The appellant’s counsel then points to the mitigating factors identified by the judge which she submits is powerful mitigation. She also points to the events at court in relation to the conflicting recommendations from probation officers and in particular those who attended court and disagreed with the recommendations of Mr Donaghey had not interviewed or spoken to the appellant and the court had not time to read all the material relevant to this case.

The appellant maintains that the community order is too long as he is able to complete the order in less than 12 months and that the length of the order is relevant as to whether or not he is subject to the requirements of Sexual Offenders Register. This is because the notification provisions do not apply where the defendant has received a sentence of less than 12 months.

The appellant submits that it is unfair for him to be subject to the stringent and lengthy requirements of the register when a community order of 12 months or more is not justified. He presents a low risk of reoffending. He could complete a community order in less than 12 months and it is not his fault that the Probation Service initially indicated that they could not accommodate this duration when the sentence was imposed.

The judge was correct to categorise this offence as falling within category 3B of the relevant Sentencing Council Guideline, which has a starting point of high-level community order. The relevant aggravating and mitigating features were also correctly identified by the judge. The judge was also correct to identify that the appropriate sentence was a community order.

The Sentencing Council’s Guideline on the Imposition of Community and Custodial Sentences says this in relation to community order levels: “The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high).”

Later down the guideline explains: “At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so.” The guideline then continues by explaining a full list of requirements including those aimed at offender rehabilitation is given below. In relation to “high”, the guideline explains that this is for offences which only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances. More intensive sentences which combine two or more requirements may be appropriate. In relation to a high-level community order suitable requirements might include any appropriate rehabilitative requirements, 100 to 300 hours of unpaid work, curfew requirements within the highest range and exclusion requirements lasting in the region of 12 months. In relation to a medium-level community order the guideline explains this is for offences that obviously fall within the community order band, and then suitable requirements might include any appropriate rehabilitative requirements, greater number of hours of unpaid work, for example, 80 to 150 hours, curfew requirement within the middle range, exclusion requirement lasting in the region of 6 months and a prohibited activity requirement.

Returning to the facts of this case. This was a case where the appellant had strong personal mitigation given the positive character references and his full-time employment. That was recognised in the pre-sentence report, both in terms of the requirement of unpaid work and the 12-month period of supervision.

This was a case which obviously fell within the community order ban and, having identified the starting point, falls below a high-level community order and towards a medium-level community order and therefore towards the lower end of the 3B category range. On the basis of the author of the pre-sentence report, who had interviewed the appellant and read all the papers, there was no justification for rehabilitation activity requirement days in this particular case, or for the order to last for a period of more than 12 months.

In these circumstances a requirement of 200 hours of unpaid work together with a 30-day rehabilitation requirement over a period of 18 months was a community order with requirements that were too onerous for the facts of this case and we are satisfied were manifestly excessive. We agree that there should have been no rehabilitation activity requirement and that the time permitted to complete the unpaid work and supervision should have been for a period of 12 months, as was set out in the pre-sentence report. We are not persuaded that the period of the order should have been any shorter than 12 months. That period not only allows the appellant the time to do the unpaid work of 200 hours but also allows the appropriate period of supervision; all of which form part of the community order and, again, as was recommended in the pre-sentence report. We do not see any basis to go below a period of 12 months.

Accordingly, we quash the sentence passed and impose a community order with one requirement, namely 200 hours’ unpaid work to be completed in 12 months. All other orders remain in place. That also means that the notification requirements apply, which is the effect of the relevant statutory provisions and are automatically applied as a matter of law. That concludes our conclusions on this appeal.

MS KARAISKOS: I am very grateful to my Lady. Given that the original sentence has been quashed, this is a case where the appellant was or is funding his legal representation on a private basis; he was not eligible for legal aid as I understand it. The Criminal Procedure Rules allow the Court a discretion to, on an appeal, allow expenses to be taxed from Central Funds. I wonder whether this is a case in which such an application could be made.

LORD JUSTICE LEWIS: It is for you to tell us if you are making the application and then for us to decide whether to grant it. If you want time to think about that and make the application in writing.

MS KARAISKOS: It is usually done in writing and it is usually my instructing solicitors will do that and set out the relevant hours and the fees, so I make the oral application and for the written application to then follow with the relevant schedules.

LORD JUSTICE LEWIS: What are you asking us to do? Are you asking us to make an order or simply to recall that we allow an application to be made in writing within 14 days?

MS KARAISKOS: My initial argument would be for the application to be granted and then quantity to be determined behind the scenes. I do not trouble the Court with quantity today. My initial application if the Court is not with me on that, I ask for 14 days which your Lordship has just indicated.

LORD JUSTICE LEWIS: Let me make a note. We have allowed the appeal, we have quashed the 18 months and the rehabilitation requirement. We have substituted an order of 12 months, with 200 hours’ unpaid work and the order that you are seeking you need to tell us which section of which Act you are relying on in making such an application.

MS KARAISKOS: I am referring to the Criminal Procedure Rules Part 45.

LORD JUSTICE LEWIS: You have the summary which refers to various costs orders. It is not absolutely clear what the position is there.

MS KARAISKOS: No, that is why I have looked into it. The Crown Court provisions are different and those are the ones that are set out in the case summary that is provided for today. I do not rely on that provision. But your Lordship is quite right, it is slightly ambiguous.

LORD JUSTICE LEWIS: We cannot make an order if we do not have power to make it as a matter of law. We will retire and discuss this. My instinctive reaction, unless there is anything else you want to say, is that we ought to be absolutely sure, deal with the order that we have dealt and that your client knows it is 12 months and no RAR and 200 hours and adjourn the remainder of the hearing so there can be no question of it being functus and allow a written application to be made which will have to set out the provisions upon which you reply plus the amount sought and we are not guaranteeing that will or will not be granted. It seems that will make sure that we as a Court have the powers to do what you are saying and we will know the amounts. Shall we just retire for two minutes just to discuss that.

LORD JUSTICE LEWIS: Ms Karaiskos, we are slightly concerned that we do not have jurisdiction. One of my colleagues sensibly took his computer with him and we checked section 16(4) of the Prosecution of Offences Act to see. This has only arisen now, you could not tell whether or not we were going to allow the appeal or on what terms and it would not be fair to prejudice your client. So we will not refuse the application but nor will we grant it. What we will do is we will make the orders that we have indicated about the quashing of the substitution of the appropriate community order, we will adjourn the remainder of the appeal and we will allow you to make an application in writing within 14 days: (i) setting out the jurisdiction that you say the power, you say that the Court of Appeal has (ii) making your application and saying why it is that Mr Willey should have his costs as you have outlined and (iii) the amount sought. Are you sure that we have the power to do this? Why should we do it? If we do do it, how much should we do it for? Is that clear?

MS KARAISKOS: Thank you very much.

LORD JUSTICE LEWIS: Thank you very, very much you have been very helpful. If you discover that you have no power, perhaps kindly notify the Criminal Appeal Office of that fact as well so the matter can then finally be concluded and everything will be dealt with, but thank you very much again.