R v Joseph Jack Wachowiak

In sentencing sexual offences committed during a military exercise, the service context may materially increase culpability and justify severe consequences. Service personnel participating in such an exercise are properly treated as on duty, even where the offending occurs at a social event. The offender’s rank is a relevant sentencing factor. A service court may impose immediate service detention where the seriousness of the offence requires custody, and may use the statutory comparison between service detention and a community order when assessing proportionality. In sexual-offence cases, dismissal from service is appropriate in all but the most exceptional case. The transient duration of an assault does not, by itself, make it less serious.

The applicant, a former Corporal in the 15th Signal Regiment, was convicted by Court Martial of sexual assault contrary to section 3 of the Sexual Offences Act 2003, as an offence under section 42 of the Armed Forces Act 2006. The offence occurred during an Army skiing and snowboarding exercise in Austria, at a social event attended by service personnel.

The Court Martial imposed dismissal from service, reduction in rank, 140 days’ service detention and five years on the sex offenders register. The applicant sought leave to appeal against sentence, contending that the sentence was manifestly excessive. He relied particularly on the momentary nature of the assault, his good character and service record, the pre-sentence report’s recommendation of a non-custodial sentence, the effect of dismissal, and the fact that he was said to have been off duty.

The central issues were whether the service context and the applicant’s rank were properly taken into account, whether immediate service detention and its length were justified, whether the custodial term should have been suspended, and whether dismissal was disproportionate.

1. Disposition. Leave to appeal against sentence was granted, but the appeal was dismissed. The sentence was neither erroneous in principle nor manifestly excessive.
2. Custody and proportionality. The offence was properly placed in category B3 under the Definitive Guideline, with a range from a medium-level community order to six months’ imprisonment. The Court Martial was entitled to treat the service factors affecting culpability and harm, including the effect on morale and the adverse effect on the reputation of the Armed Forces, as relevant. It was also entitled to take four months’ imprisonment as the custodial starting point, allowing for the applicant’s good character.
3. The 20-day uplift for service detention was permitted by section 4.5.2 of the Service Guidance, reflecting the difference between service detention and a civilian prison. By reference to paragraph 93A of Schedule 3 to the Sexual Offences Act 2003, and section 4.6.4 of the Service Guidance, 140 days’ service detention was treated as akin to a medium-level community order. The detention therefore fell within the lower end of the applicable category range and was not manifestly excessive (paras 18–20).
4. The assault’s momentary nature did not reduce its seriousness. The Court considered that submission failed to reflect the evidence and the complainant’s response to the assault (para 21).
5. The Court Martial was entitled to refuse to suspend the custodial sentence because the seriousness of the offence required immediate custody. It was also entitled to select service detention as being in the interests of justice, including because it permitted resettlement activity (para 22).
6. Military status and dismissal. Personnel participating in the exercise were properly regarded as on duty throughout it. The social setting and the applicant’s financial contribution did not alter that conclusion. It was therefore proper to consider his rank in sentencing, consistently with the Service Guidance (para 23). Dismissal was not disproportionate. The Court endorsed the guidance that dismissal is appropriate in sexual-offence cases in all but the most exceptional case, given the compelling policy considerations of service life (para 24).
7. The Court Martial had taken the applicant’s good character and the pre-sentence report into account. It was nevertheless entitled to conclude that custody was necessary after considering the available custodial and non-custodial options (para 25).

• Court Martial: On 18 February 2026, the applicant was convicted of sexual assault. On 12 March 2026, the Court Martial imposed dismissal from service, reduction in rank, 140 days’ service detention and five years on the sex offenders register.
• Court of Appeal (Criminal Division), Court of Appeal Martial Appeal Court: Leave to appeal against sentence was granted, but the appeal was dismissed. The Court held that the sentence was neither erroneous in principle nor manifestly excessive.