R v Joseph Jack Wachowiak

This is an application for leave to appeal against sentence which has been referred to the Full Court by the Registrar. The applicant Jack Joseph WACHOWIAK, now aged 29 years, was formerly a Corporal in the 15th Signal Regiment. On 18 February 2026 he was convicted, following trial before a Court Martial, held at the Military Court Centre Catterick, of committing a criminal offence contrary to section 42 of the Armed Forces Act 2006, namely sexual assault, contrary to section 3 of the Sexual Offences Act 2003. The offence took place on 23 January 2025 during a social event in the evening of an Army skiing expedition. At the time of the offence the applicant was a participant in Exercise MERCURY SNOWRIDER. This two-week exercise is the annual snowboarding championship and training camp for the British Army's Royal Corps of Signals, usually held in Austria. The applicant was aged 28 years at the time of the offence. He was a person of previous good character with an exemplary service record, having held the rank of Corporal since 2023.

On 12 March 2026, the Court Martial announced its sentence. Judge Advocate General, His Honour Judge Large (“the judge”) gave the Board’s reasons for sentence and he asked, in the customary form, the President of the Court Martial, Lt. Col, Anderson of the Royal Scots Dragoon Guards, to impose the following sentence on the applicant. First, dismissal of the applicant from His Majesty's Service; second, reduction in the ranks; and third, a period of service detention of 140 days. The applicant was also placed on the sex offenders register for a period of 5 years.

The applicant is represented this afternoon by Mr Dingle Clark of Counsel, who did not appear below. Mr Clark’s core submission is that the sentence we have described, and in particular, the applicant’s dismissal from service were manifestly excessive and out of all proportion to the offending, which he said was of a momentary nature. Squadron Leader Luke Ainsworth (who did not appear below) represented the prosecution before us.

We are grateful to counsel for their concise and focussed written and oral submissions. We turn to the facts and the brevity of some of our description is to avoid referring to any details that might permit jigsaw identification of the complainant.

In January 2025, the applicant and the complainant attended the exercise in Austria. The complainant is also a member of HM Forces but the applicant and the complainant did not know one another, and they had not had any previous interactions, aside from seeing each other on the slopes during the exercise.

On the night of 23 January 2025, a party was organised in a local bar. The complainant and the applicant each attended this party. They were not in the same group. During the evening, the applicant approached the table at which the complainant was sat with her friends and asked her if she was sleeping with one of the men present at her table. The complainant said that she did not find that funny and the applicant left. However, subsequently, he kept stopping at her table, pestering her, and asking the same question. Unsurprisingly, the complainant lost her temper and told the applicant to stop being a "creep" and said he was making her feel uncomfortable. The others at the complainant's table were also getting annoyed at the applicant. As the evening progressed, the applicant became increasingly more intoxicated and appeared at the complainant's table on a number of occasions.

Unfortunately, matters did not end there. At around midnight, the complainant went to the bar to get herself a drink. The applicant approached her. She said to him “What do you want now, I’ve already told you you’re being a creep”. The applicant said he just wanted to talk to her, but as she went to leave the bar he grabbed her left breast, enclosing it in his right hand and squeezing it. The complainant was shocked, upset and distressed by his behaviour - she shoved the applicant off.

The complainant immediately disclosed the incident to those she was with, and later to others who were taking part in the military exercise. She also called her boyfriend by phone in a distressed state. The applicant was identified by the complainant to others - he was passed out on a bench outside the bar. The following day she formally reported the incident. The applicant was returned to his unit while an investigation took place.

The applicant was interviewed under caution on 25 January 2025 and denied the sexual assault. At a further interview on 10 April 2025, he provided a prepared statement, maintaining that denial and made no further comment.

The complainant gave evidence at trial essentially recounting what we have recorded. The applicant also gave evidence in his defence. In summary, he said that he had only approached the complainant’s table once. He denied asking her if she was sleeping with a man present at the table, although he accepted that, in jest, he asked her if she "fancied him". The applicant said that at the party he was “tipsy” but not drunk. He said had not approached her at the bar and had not touched her breast, and that it must have been someone else who had done so.

The Court Martial, which was made up of the President and the five Member Board, with the judge presiding, convicted the applicant. We turn to the sentence, which is the subject of this application.

Following detailed submissions in mitigation from Counsel then representing him, the judge gave the Court's reasons for the sentence. He referred to both the Guidance on Sentencing in The Service Courts – Version 7 (January 2025) ("the Service Guidance") and the Sentencing Council's Definitive Guideline for Sexual Assault (“the Definitive Guideline”). As appears from his sentencing remarks, the material part of the Service Guidance had been drafted by the judge himself.

Given the nature of the grounds on which leave to appeal is sought by Mr Clark it is appropriate that we set out in some detail the way in which the Judge Advocate General explained the Court Martial’s approach in structuring the sentence and the reasons for the sentence.

The judge said as follows:

"... you know that sexual offences are treated very seriously in the Armed Forces. One of the reasons for that I give in my guidance at paragraph 6.2:

“Service personnel have little choice where and with whom they serve. They may live in close confines, with only a curtain or, if on operations, nothing separating them from others. They may share facilities including ablutions and social spaces. They work, eat, and socialise together. Sexual offending undermines the bond of trust which must exist between those who serve together, affects morale and ultimately operational effectiveness”."

Mr Clark, for the applicant, seeks leave to appeal on a number of discrete grounds but his overarching submission was that the sentence was manifestly excessive. As he describes the complaint in his written grounds he says the sentence "did not fit the offender or the offending", and the court wrongly gave weight to the applicant’s rank as a non-commissioned officer. He argued this was not a proper factor in the offence as the applicant was off-duty at the time of the events. Mr Clark further argued that the Court Martial failed to take into consideration or give sufficient weight to a number of matters: first, the applicant’s positive good character as set out in his previous reports and character references; second, the content of the pre-sentence report and its recommendation for a non-custodial sentence; and third, the effect on the applicant of a sentence of dismissal from the service. Mr Clark also forcefully submitted that a period of detention should not have been imposed at all, or, alternatively, if such period was necessary, 140 days was too long. He also underlined the point to which we have already referred, and which he called “the momentary” nature of the offence.

Squadron Leader Ainsworth for the prosecution argued that there was no error of principle in the Court Martial’s approach and on the particular facts, it properly applied both the Service Guidance, and the Definitive Guideline. He underlined the importance the Armed Forces give to taking sexual offences seriously. We turn to our analysis and conclusions.

Mr Clark's submissions were persuasively presented, but we do not consider that there was any error in the sentence or that it was manifestly excessive. We will address each ground in turn but our overall conclusion is that the sentence properly reflected both the Service Guidance and the Definitive Guideline.

We will first address the custodial aspects of the sentence and how the Court came to the conclusion that 140 days detention in service custody was appropriate. First, it is not in issue that the judge was right to place the offence in category B3 (Culpability B and Harm 3). Indeed, we note that this appears to have been the agreed position of all Counsel below. The starting point for B3 is a high-level community order, and the category range is a medium level community order up to 6 months’ imprisonment. The judge then considered aggravating and mitigating factors and at 9C of the transcript, which we will again quote. He said: ‘Looking at service factors which affect culpability and harm there are two factors, the effect on morale and the adverse effect on the reputation of the Armed Forces which are directly relevant here and I think you understand this, this is just the sort of offending which young female service personnel abhor and serious sentences are required. For that reason and making allowance for your good character as we do so we move to the upper limit of the sentencing bracket and take the start point at four months’ imprisonment.’

That amounted to 120 days custody and the judge then added 20 days to reflect that this would be served in Service detention not a civilian prison. See in this regard section 4.5.2 of the Service Guidance which permit such an uplift and states, "When a sentence of Service detention is imposed as an alternative to a prison sentence, it is generally appropriate to apply an increase to the length of the sentence of Service detention to reflect the difference in regimes".

At first blush it might appear that a custodial sentence as opposed to some form of Service Community Order was not appropriate on the facts of this case: this is a B3 case under the Definitive Guideline. However, again the service context is all important. So, the Service Guidance as to how a Service Community Order and a sentence of Service detention may be compared says (by reference para 93A of Schedule 3 of the Sexual Offences Act 2003) that a period of Service detention of 140 days (so 20 weeks) is akin to a medium level community order. We refer in this regard to see section 4.6.4 of the Service Guidance. It follows that the period of 140 days Service detention was within the lower end of the category range in the Definitive Guideline, when read together with the Service Guidance. Accordingly, we do not consider the custodial aspect of the sentence was imposed in error or was manifestly excessive.

We should also say that we were not attracted by the submission that this sexual assault was to be treated as less serious because it was momentary. Having read the evidence of the complainant at trial, we consider that this submission does not do justice to the facts, and does not fairly reflect how she felt following the assault.

We turn to the issue of suspension of this custodial term. The judge set out why the sentence was not being suspended by the Court Martial in the following terms at 9D-E. He said ‘We consider it is not possible to suspend the sentence because the seriousness of the offence means that appropriate punishment can only be obtained by immediate custody but we do have a further choice to make, a decision to make, and that is whether you must serve the sentence of imprisonment in a prison or whether a sentence of service detention would be in the interests of justice. We consider that it would, it would both relieve the pressure on the Prison Service and allow you to undertake, should you wish to do so, resettlement activities to get you ready for a career in civilian life and to find yourself accommodation.’ In our judgment, the Court Martial was entitled to decline to suspend the sentence for the reasons given by the judge.

We turn next to the submission that the appellant was not on duty when the offending occurred and weight was wrongly given to his rank. Mr Clark highlighted the social context in which the offence was committed. We were not attracted by this submission. The appellant at the time of the offence was a participant in a military exercise. This exercise serves as a major winter sports event, combining competition with training to develop snowboarding skills, discipline, and adventurous training for soldiers and is authorised by The Army Winter Sports Association. Service personnel are rightly considered on duty at all times during such exercises and it does not make any difference that they made a financial contribution to joining the exercise. It was therefore in our judgment entirely proper for the Court Martial to consider the appellant’s rank during sentencing. This was also in line with the Service Guidance which at section 3.1.12 states: “Consideration of Rank or Rate - When sentencing, the Service Courts will always take account of the rank of an offender; normally the higher the rank the greater the degree of culpability”.

We turn next to the issue of dismissal from service. We reject the submission that dismissal from His Majesty's Service was a disproportionate penalty. We respectfully endorse what is said in the Service Guidance at 6.3 that in sexual offence cases "dismissal will be appropriate in all but the most exceptional case." There are important and compelling policy reasons which justify such a strict approach in the military context. When that context and the offending in issue in this case are properly considered, in our judgment dismissal from Service was not manifestly excessive or disproportionate.

Finally, as to the alleged failure of the Court Martial to consider the applicant’s good character, we do not accept this point. The transcript before us shows that the Court appropriately took into account that the applicant had previous good character and as we have recorded, they in terms stated they had made an allowance for good character. It is also clear they considered the entirety of the pre-sentence report including custodial and non-custodial options. The Court was provided with the pre-sentence report in advance and was directed by the prosecution to consider it in full. We also note that the applicant’s trial Counsel drew to the Court’s attention particular aspects of the PSR and commended the recommendation made by the writer of the PSR of a service community order. The Court Martial were well aware of these matters but were entitled to take the view that a period of custody was necessary for the reasons they gave.

For these reasons, we grant leave to appeal against sentence, but we dismiss the appeal.