In a recent judgment, Sir Declan Morgan, the Lord Chief Justice, found that two offenders who admitted sexual assault by penetration contrary to article 6(1) of the Sexual Offences (Northern Ireland) Order 2008 had received unduly lenient sentences.

In both cases – Byrne and Cash – the men committed the offence by digital penetration of the victim’s vagina. The trial courts were told that an ECO was available under a pilot launched by the Probation Board in 2015 if the judge was considering a sentence of 12 months or less.

In Byrne, the trial judge considered that the appropriate sentence was one of 12 months and, in accordance with the ECO pilot, imposed a sentence of 80 hours community service with two years’ probation.

In Cash, the trial judge considered that a sentence of 12 months was appropriate and, in those circumstances, imposed an ECO comprising 100 hours community service and three years’ probation.

The Director of Public Prosecutions appealed the sentences on the basis that they were unduly lenient. In its submissions, lawyers for the DPP said an ECO was not a suitable disposal in cases of this sort even if the appropriate determinate sentence was one of 21 months or less.

The DPP submitted that the particular focus of the ECO was on changing the lives of repeat offenders with an emphasis on restorative practice within the community. In cases such as Byrne and Cash, victims are highly unlikely to wish to have anything to do with their abuser, and if the sentencing range falls within the ECO range, the offenders are unlikely to have any previous relevant convictions or live chaotic lifestyles.

In his judgment, Sir Declan said: “We accept that an ECO does not necessarily follow where a sentence of 12 months or less is considered appropriate for this offence. We also recognise that the rehabilitation of such offenders involves different strategies from those with chaotic lifestyles.

“We do not, however, accept that as a matter of principle the benefits of an ECO in promoting public safety through rehabilitation even in this sort of case should be underestimated. That accords with the statutory objectives of combination orders in Article 15(2) of the Criminal Justice (Northern Ireland) Order 1996. We do not, therefore, accept that in the right case an ECO for this offence would be wrong in principle.”

However, he noted the vulnerability of the victim in both cases, particularly in Byrne in which it was a “seriously aggravating factor”. The appropriate sentence in Byrne was a determinate custodial sentence of between 21 months and two years, and the appropriate sentence in Cash was “at least 21 months or a few months higher”.

This being the case, Sir Declan said the judges “are satisfied that the sentences in this case were unduly lenient”. He substituted for the sentences imposed a determinate custodial sentence in each case of 18 months, comprising nine months in custody and nine months on licence.