Rawlinson v R.

For a threshold offence under Sexual Offences Act 2003, notification requirements arise only when the prescribed sentencing condition is met. Section 132 treats the offender as convicted for these purposes on that later date. A conditional discharge for exposure does not meet the relevant condition, but a later custodial re-sentence does. The requirements then run from the date of re-sentence.

The requirements arise by operation of law. An appeal lies only against a judicial ruling on their application, not against notification of their consequences. A section 92 certificate is evidential, not part of sentence. It is susceptible to judicial review only for public-law error. Notification requirements are not additional punishment and must be left out of account in sentencing.

The appellant pleaded guilty in 2015 to exposure contrary to section 66 of the Sexual Offences Act 2003 and received a three-year conditional discharge. In 2017, after his conviction and three-year sentence for an unrelated drugs offence, the Crown Court re-sentenced him for the exposure offence to two months’ imprisonment concurrently.

The court later informed him that Part 2 notification requirements applied for seven years and issued a section 92 certificate. He appealed against the notification requirements, the certificate, and the two-month sentence. The central issues were when the statutory requirements arose, whether the Court of Appeal had jurisdiction over them or the certificate, and whether the custodial sentence was excessive.

1. The appeal against sentence was allowed. The two-month concurrent sentence for exposure was quashed and no further sentence was imposed. The offence was a category 3 exposure offence. Although there were aggravating features, it did not cross the custody threshold. It was a childish and distressing act, but there was no apparent sexual motivation or gratification.

2. The appellant was not subject to notification requirements when he received the conditional discharge. Under paragraph 33 of Schedule 3, an adult conviction for exposure attracts the regime only if the victim was under 18 or the offender receives one of the specified disposals. A conditional discharge was not one of them.

3. When the Crown Court later imposed imprisonment for the exposure offence, the sentencing condition was met. By section 132, read with sections 80 and 82 of the Sexual Offences Act 2003, he was then regarded as convicted for Part 2 purposes. The seven-year period therefore began on the date of re-sentence, not on the original conviction date.

4. The requirements arose by operation of law. There was no appeal against them because the sentencing judge had made no appealable ruling; informing an offender of the requirements under rule 28.3 did not itself amount to such a ruling.

5. The certificate under section 92 was not part of the sentence. It was evidence of the stated facts and could be challenged by judicial review if wrongly issued. It was correctly issued when made, because the custodial sentence then satisfied the threshold. Its later consequences did not create a public-law error requiring it to be quashed.

6. Once the custodial sentence was quashed, the sentencing condition was no longer met and the notification requirements fell away. The court declined to reconstitute itself as a Divisional Court to quash the certificate.

• Court of Appeal (Criminal Division): Allowed the sentence appeal, quashed the concurrent two-month sentence for exposure, and imposed no further sentence. It held that it had no jurisdiction to hear an appeal against the notification requirements or the section 92 certificate.
• Crown Court at Cardiff: In July 2017, re-sentenced the appellant for exposure to two months’ imprisonment concurrently with a three-year sentence for a drugs offence. In December 2017, the court authorised a certificate under section 92 of the Sexual Offences Act 2003.
• Cardiff and Vale of Glamorgan Magistrates’ Court: In January 2015, convicted the appellant of exposure and imposed a three-year conditional discharge.