R v Mark Donoghue

On an appeal against sentence, a sentencing judge is not bound by a pre-sentence risk assessment, but a materially different finding of future risk must have a justifiable basis. An index offence may alone support dangerousness in principle, yet a finding of high risk requires more than excessive reliance on that offence where the offender is a first-time offender of otherwise good character. A custodial term close to the top of the guideline range requires significant aggravation. Good character and relevant mitigation cannot be discounted entirely. The Court of Appeal quashed the unsupported dangerousness finding and manifestly excessive extended sentence, substituting seven years’ determinate imprisonment.

The appellant appealed against sentence after being convicted in the Crown Court of paying for sexual services of a child, contrary to section 47(1) of the Sexual Offences Act 2003. The victim was aged 15. The sentencing judge found the appellant dangerous under the Sentencing Act 2020 and imposed an extended sentence of nine years’ custody plus three years on extended licence, together with a Sexual Harm Prevention Order and indefinite notification requirements. The appeal challenged both the finding of dangerousness and the length of the custodial term.

Appeal allowed in part. The Court of Appeal applied the established approach that sentence may be disturbed only where it is wrong in principle or manifestly excessive, while recognising the sentencing judge’s advantage in assessing the competing features of the offence.

1. Dangerousness. A sentencing judge is not bound by a pre-sentence report. However, a substantially different assessment of future offending must have a justifiable basis. The judge had relied excessively on the facts of the index offence and had not shown that the Probation Service’s conventional risk assessment omitted relevant matters, included irrelevant matters, or was otherwise flawed.
2. A finding of dangerousness may in principle be based on the index offence alone. On these facts, however, the appellant’s first offence, his age and his otherwise good character meant that additional factors were required before concluding that he presented a high risk of reoffending and causing significant harm. The finding was therefore unsustainable under the Sentencing Act 2020.
3. Custodial term. The applicable guideline was that for sexual activity with a child. The agreed Category 1A classification had a five-year starting point and a range of four to 10 years. A term close to the top of that range required significant aggravating factors. Planning, joint offending, alcohol use and the victim’s vulnerability were relevant, but the victim’s personal vulnerability was not shown to have been known to the appellant. His positive good character and mitigation could not be discounted entirely.
4. The appropriate custodial term was seven years. The Court quashed the dangerousness finding and the 12-year extended sentence, substituting seven years’ determinate imprisonment. The Sexual Harm Prevention Order and reporting restrictions were left undisturbed.

1. Court of Appeal (Criminal Division): On 17 February 2023, the sentence appeal succeeded in part under [2023] EWCA Crim 244. The dangerousness finding and extended sentence were quashed, and a seven-year determinate sentence was substituted.
2. Crown Court: Following conviction on 3 December 2021, the appellant was sentenced on 29 September 2022 to nine years’ custody plus three years on extended licence, with a Sexual Harm Prevention Order and indefinite notification requirements.