Abstract
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia, reviews recent appeal judgments and other judicial developments that inform sentencing and early release.
Burglary
Prolific house burglar: Hope of rehabilitation
In August 2022 S. burgled the home of a woman aged 74, in the daytime while she was out, entering through an insecure downstairs window. Stolen items included a large quantity of jewellery of considerable sentimental value and a credit card. The defendant was caught through his use of the card in a nearby shop. He admitted another burglary of that kind committed the previous day and in due course asked for seven other burglaries to be taken into consideration. Aged 34, the defendant had a substantial record for residential burglary from 2010 and had incurred a four-year sentence in 2014 and a 57-month sentence in 2016. In August 2022 he had been convicted of assault on an emergency worker. He was now liable to the three-year minimum term provisions under the Sentencing Act 2020 s314.
Following his guilty plea on 17 November 2022, he was considered a possible candidate for the C3 project (the Crime Free Community Desistance Programme), run by the police and designed to rehabilitate offenders, directed particularly at repeat domestic burglars. The sentence was adjourned for him to be assessed, though the judge made clear that the adjournment did not amount to any kind of promise as to the eventual outcome. During the assessment, he admitted a further six offences of that nature, including one committed in 2019 when he was on licence deriving from his 2016 term, which would otherwise have remained unsolved. Some stolen items had been recovered.
When he came back before the Crown Court (and a different judge) in February 2023, a detailed report from a police officer recommended that his sentence should be deferred for four months to allow him to undertake C3, During that time strict conditions would require him to wear a GPS tag, be drug-tested at least three times a week, attend appointments organised by the National Probation Service or other organisations and take part in restorative justice meetings if appropriate. One of S.'s victims supported the C3 proposal. A PSR (pre-sentence report) also supported S.'s engagement in the C3 Programme, not through deferment but while subject to a three-year community order, also proposing a mental health treatment requirement and a rehabilitation activity requirement.
The judge identified deferral of sentence as being predominantly applied in cases which were either at the custody threshold or the community sentence threshold, where there was a proper and realistic prospect of a non-custodial sentence at the end of the deferral period. Given the minimum term provisions, this was not such a case. Those provisions could be avoided if exceptional circumstances applied, relating either to the offence or the offender. Though there were no exceptional circumstances relating to the offence, it was argued on B.'s behalf that exceptional circumstances applied to him, his remorse being identified, through his cooperation in admitting unsolved crimes. As for the C3 opportunity, the judge acknowledged that this was an unusual provision but, in his view, did not count as ‘exceptional’ for the purposes of s314. By reference to the relevant Guideline, the judge imposed a term of 38 months’ imprisonment.
On appeal against the sentence, it was argued on B.'s behalf that sentence may be deferred without an indication that a non-custodial sentence will be imposed in the event of compliance with specified conditions. In the Court of Appeal's view that would be ‘wholly contrary to the purpose of deferring sentence’.* Deferment of sentence is not to be used where the court cannot state in clear terms what the sentence will be if the defendant complies. That is not to say that deferment of sentence will never be appropriate in a case to which the minimum term provisions apply. So long as the court is able to say that exceptional circumstances apply either at the date of deferment or will apply if the defendant meets the conditions of the deferment, then it is perfectly possible to defer sentence. Having said that, we consider that in those circumstances the proper course would be for the court to grasp the nettle there and then.
On the facts of this case, it had been open to the Crown Court to impose a community order with very stringent conditions rather than defer the sentence. The judge had not said that, as a matter of principle, deferment can never occur in a minimum-term case. That would have been wrong but deferment in such cases is an option to be used sparingly. In most cases, the court should consider whether a community order is appropriate rather than a deferment of sentence. That applies generally and not just to cases where minimum sentence provisions apply.
The judge's conclusion was one reasonably open to him in applying the relevant principles to S.'s circumstances. His co-operation with the police could not be regarded as exceptional. His acceptance of the C3 programme was greatly to his credit, but it had not been outside the reasonable range of judicial responses for this judge to find that it did not amount to exceptional circumstances. Some judges may have taken a different view, but the Appeal Court would not interfere. However, the Court detected an error in the way the judge had calculated the final custodial term, taking into account the aggravating factors, mitigation and credit for the plea, and thus substituted a term of 876 days, being three years less the 20% credit for plea permitted under s314. R v SWINBOURNE, [2024] 1 Cr App R(S) 8.
Brazen ram-raiding: Exceeding the guideline
Dealing with the appeals against the sentence of co-defendants convicted of conspiracy to commit commercial burglary, the Court of Appeal noted that the relevant Guideline (Burglary 2012, revised in 2022) ‘was not designed for, and is not particularly apt in the context of, the sentencing of very serious offending involving an organised crime gang committing high-value commercial burglaries involving ram raid and “smash and grab” tactics’, as had been the case in the present enterprise. Over an extended period in 2019–2020 these appellants had committed a string of raids targeting luxury designer stores of Kensington and Chelsea. They had been extremely well organised and had used sophisticated methods, in the planning and execution of the crimes and in avoiding detection. Using recently stolen vehicles and cloned plates, wearing disguises and gloves to prevent DNA tracing, ensuring that their phone communications could not be used to identify them and using lookouts and strategically placed members of the gang already in position, they had entered the premises only briefly, seizing as many high-value goods as possible, using high powered mopeds to circle the premises and ward off members of the public, before escaping on fast motorbikes. They quickly disposed of stolen items using trusted fences in apparent legitimate venues such as Hatton Garden. They were eventually caught through skilful police surveillance.
Under the Guideline, an offence of this kind comes within Culpability Category A (high culpability, given ‘a significant degree of planning and/or organisation’) and Harm Category 1 (theft of and damage to property causing a substantial degree of commercial/economic loss to the victim with extensive damage to property) (whether economic, commercial, cultural or of personal value). For a 1A offence, the Guideline indicates a starting point of two years’ imprisonment with a range between one to five years’ imprisonment. The Appeal Court observed that a single instance of the appellants’ offending would merit a sentence considerably in excess of five years. The two ring leaders had incurred aggregate terms of 13 years and 12½ years respectively, with fellow conspirators incurring sentences of seven years. As the Guideline was wide of the mark it remained open to sentencers to draw on past Court of Appeal decisions in respect of organised crime of this nature, as was appropriate in other spheres of serious offending such as highly organised drug crime. Further, the Sentencing Council has stated that a sentencer's assessment of the totality of the offending ‘may result in a sentence above the range’ indicated for an individual offence, ‘including a sentence of a different type’.
The judge in this instance had in mind that each raid was ‘meticulously planned’ and carried out with ‘ruthless efficiency’. ‘Everyone knew exactly what their role was on the job and where they were supposed to be. A group was assembled. Meetings were held beforehand. Tools were used, having been obtained specifically for each operation [being] simply left behind as a matter of policy so that the group could carry as many stolen goods as they could and get away as quickly as possible.’ Very high-value items were targeted – expensive diamonds and jewellery, branded watches and designer handbags which ‘retail for thousands’. None of the goods were ever recovered. Though the raids mostly occurred around 02.00 in the morning the West End locations were never deserted. ‘The drama of the offences, the way they were carried out, the speed and a great deal of force means that anyone witnessing would have been extremely scared and alarmed.’ The offending had been ‘brazen’.
In the Appeal Court's view, the individual sentences imposed had been carefully crafted with regard to each defendant individually, his involvement, personal circumstances and associated mitigation. The judge had not erred in her approach to sentencing, having regard to the guidelines and the relevant authorities. Accordingly, the main ground of appeal – that the sentences had been manifestly excessive – was dismissed. R v O’HARE and Others, [2023] 2 Cr App R(S) 48.
Aspects of violence
‘Non-fatal strangulation’: Applying Cook
B. had been in a relationship with V., mother of a boy aged three, for around nine months, ending unhappily in May 2022, shortly after she gave birth to their daughter. In October 2022 she secured a non-molestation order (NMO) that prohibited B. from using or threatening violence against V., from intimidating, harassing or pestering V. and from entering the family home or contacting V., other than through her solicitors. In November 2022 B. approached V. while she was parked outside a shop, following her when she drove off and appearing at the window of the car when she was stationary at a junction. He had appeared drunk and had tried to open the car's rear door where her baby was placed. V. reported this to the police. On arrest for breach of NMO, he claimed that she had been driving dangerously; he had been concerned for the safety of his daughter and so had a reasonable excuse for breaching the NMO.
Before that allegation had reached court, V. had reconciled with B. and on 23 December he was at her home. He picked up their infant daughter while she was sleeping and refused to hand her back to V. as requested. When she sought to remove the child from him he seized her by the throat and squeezed it, choking her, subsequently pushing her to the floor and sitting on her, then applying a headlock. When she struggled free, he pushed her down the stairs, causing her to hit her head on a wall. He then wrapped his arms and legs around her and squeezed her. When she threatened to call the police, he eventually left the house. The two children had been present and distressed.
On conviction after trial of intentional strangulation and assault occasioning actual bodily harm (ABH), B. was committed to the Crown Court for sentence, alongside the earlier breach of NMO. He had committed these three offences while subject to a community order imposed in March 2022 for an offence of dishonesty. There had been a gap in his convictions between 2015 and 2021. He incurred a total of three years and 10 weeks’ imprisonment; 10 weeks for breach of NMO, a consecutive term of three years for the ABH and a concurrent term of 12 months for the strangulation offence.
On B.'s appeal against the sentence, the Court of Appeal referred to the recent judgment in Cook (‘In Court’, December 2023) providing guidance on sentencing for the new offence of intentional strangulation. The Court reiterated that Cook means that arguments made with a view to lowering the sentence based on the absence of specific harm caused by strangulation will fail, in view of the harm inherent in the act. The Court added that where an offender is convicted of both intentional strangulation and assault occasioning actual bodily harm the correct approach will normally be to consider the appropriate sentence for the offence of intentional strangulation, treating that as the lead offence, and then to consider the extent to which that sentence should be increased to reflect the additional criminality involved in the other aspects of the assault and the assault as a whole. That said, sentencers should guard against ‘double counting’ the strangulation which, under the guideline for ABH assault, is a factor that raises the offender's culpability.
Adopting a starting point of 18 months’ custody for the strangulation offence, as indicated in Cook, the Appeal Court noted numerous aggravating factors including: the presence of children; offending under the influence of alcohol, while on bail and also while subject to a community sentence; the victim's vulnerability as a woman in her own home caring for a young child and baby and seeking to protect her baby. The Appeal Court also inferred from the terms of the non-molestation order that there had been previous violence towards V. All of these matters, together with B.'s previous convictions, required a significant increase from the starting point to no less than 30 months.
As regards the ABH, that had involved a persistent attack which went beyond the initial strangulation, at one stage using a headlock ‘which may well in itself have qualified as strangulation’. The aggregate total of three years for the December episode had not been manifestly excessive. Appeal dismissed. R v BUTLER, [2023] 2 Cr App R(S) 50.
Unlawful act manslaughter by choking: Merited term and dangerousness
In the course of a late evening heated argument in a hotel bar between male customers, including V., aged 43, that became a brawl, K. aged 46, and another man M. had sought unsuccessfully to calm matters. It reached a point where V. was grappling with M. and had his hand on K.'s neck. Having broken away, K. came back behind V., punching him very hard twice to the back of his head before placing his arm around V.'s neck and wrenching him backwards, both falling to the floor with K. under V. Others threw themselves onto them. K. had maintained constant pressure around V.'s neck for around 50 seconds until he lost consciousness. Attempts to resuscitate V. were unsuccessful. The cause of death was identified as sustained and forceful compression of the neck, in conjunction with underlying and severe heart disease.
In a police interview, K. had claimed that he had simply sought to get V. off his friend. Facing prosecution, K. had entered a plea of not guilty but three weeks before trial his offer to plead guilty to manslaughter was accepted by the Crown and he received an extended sentence of 17 years (a custodial term of 13 years and an extension period of four years). The judge had requested a PSR but a misunderstanding about whether K. was remanded in custody or on bail had prevented preparation. By reference to the relevant Guideline (Manslaughter, 2018), the judge placed the crime within Category B (death caused in the course of an unlawful act which carried a high risk of death, which was or ought to have been obvious to the offender), thus indicating a starting point of 12 years. Aggravating factors were identified as K.'s intoxication and the crime location in a public place at night. He rejected the claim that K. had been defending himself and considered that the fact that he had a prosthetic leg was irrelevant. Having determined a term of 15 years, the judge had allowed a 15% reduction for the plea. M. had pleaded guilty to affray and s20 GBH, incurring 20 months’ imprisonment.
The judge had concluded that K. met the ‘dangerousness’ test on the basis of his previous convictions, incurred between February 1994 and October 2014, several featuring assault. In 2001 he had incurred 24 months for ABH, with a further six months for ABH later that year. As the Court of Appeal later put it, ‘whilst not the worst form of offending for violence, he has a number of crimes of violence to his name, but none since 2014 (some eight years before the current criminality), although there is evidence within the facts of the previous criminality that he is somewhat explosive of character’.
On appeal, it was argued on K.'s behalf that he had not met the test for an extended sentence and the custodial term had been manifestly excessive. A PSR directed by the Court of Appeal had relayed that K. had been disinhibited by alcohol that night, having drunk five or six pints of beer plus a rum and coke between 18.00 and 23.00. He had experienced a ‘baleful upbringing with a disruptive childhood, also witnessing and experiencing domestic violence’. He was assessed to evidence poor problem-solving skills and poor emotional regulation, with cognitive distortion and poor temper control. He had expressed remorse but was considered to ‘harbour ingrained propensities to be engaged in instrumental and expressive violence’. He was assessed to pose a high risk of serious harm to members of the public, likely to be other males with whom he came into conflict.
The Court of Appeal had ‘no hesitation’ in rejecting both defence arguments. The crime had plainly fallen within Guideline Category B. ‘Any individual who grabs another individual around the neck and does so for a substantial amount of time plainly has appreciated, or ought to have appreciated, there is a high risk of death associated with such conduct.’ Though the judge had been wrong to suggest some degree of ‘pre-meditation’ (which requires some element of planning before the event), his approach had otherwise been correct. Though K. had shown belated remorse by his late guilty plea, there was nothing revealing ‘heightened remorse’. Though the judge's conclusion in determining 15 years before discount had been at the upper end of that open to him and ‘very severe’, that had not been manifestly excessive.
As regards ‘dangerousness’, it ‘is usually wise for the sentencing court to obtain a PSR to specifically address the issue’ and in the face of the confusion preventing same, this step should have been pursued, notwithstanding the further delay that would have caused. It was also unfortunate that the judge did not specifically draw to the attention of counsel for the defence that he was actively considering a finding of dangerousness and contemplating an extended sentence (as the Guideline stipulates). However, in light of the information and assessment belatedly available, the Appeal Court considered K. ‘a man of violence, who has a propensity to violence, and is unable to regulate his temper. When disinhibited by alcohol, this provides a recipe for him to act with violence and, in this case, sustained and prolonged violence which was inherently dangerous. A neck-hold is a particularly dangerous act when it is prolonged.’ The judge had not been wrong in principle to pass an extended sentence; nor was the extension period manifestly excessive. R v KILKENNY, [2024] 1 Cr App R(S) 3.
Sexual harm
Autistic image hoarder: Forfeiture and prevention issues
When the police searched T.'s home and seized 17 devices, some of which he acknowledged sharing with his children, they were able to trace indecent images of children plus extreme pornography. As he had amassed over four million images, only a small quantity had been examined. Following T.'s guilty pleas, the judge took into account his diagnosis of autistic spectrum disorder and imposed a suspended sentence order (20 months’ imprisonment suspended for two years, with an unpaid work requirement), an approach that the Court of Appeal subsequently considered ‘both merciful and appropriate’. The Crown Court also ordered the forfeiture of the 17 devices (it was subsequently accepted that the correct order would be a deprivation order) and made a sexual harm prevention order (SHPO) of indefinite duration.
On T.'s appeal against those ancillary orders, it was claimed on his behalf that a distinction should have been drawn between the devices and the material on them and that the order should not have covered the lawful material and should have related to the seven devices containing unlawful images, not all 17. In the alternative, it was submitted that a mechanism should be devised by which the lawful material could be extracted. It was proposed that an expert should be appointed to remove the lawful material from the devices.
The Court of Appeal did not accept that the deprivation order should be limited to the unlawful material on the devices. Such an order in these terms would require the public to bear the cost of removing the lawful material. The alternative submission had far greater attraction and the Court directed a three-month ‘interregnum’ before the deprivation order took effect, to enable the designated expert to comb the devices and prepare a schedule of the identified lawful material, which would be signed off by the police.
As regards the duration of the SHPO, the Appeal Court recognised the established principle that an order should not be made for an indefinite period rather than a fixed period unless the court is satisfied with the need to do so. In this instance, the pre-sentence report had noted that T. had scored as a medium risk of indecent image reoffending but had stated: Until further exploration of his sexual thoughts is undertaken, I assess that Mr T.'s sexual risk of reoffending may increase if he does not gain further help implementing relapse prevention strategies to manage inappropriate and distorted sexual thoughts in the future. The risk is further heightened when Mr T. is feeling bored, sexually frustrated, when he is repeating ‘collecting behaviours’ and when he is experiencing issues within his intimate relationships. … he has been assessed as posing a medium risk of serious harm towards children.
R v TAN, [2024] 1 Cr App R(S) 2.
Prolonged historic intra-familial abuse
When aged in his mid- to late-40s, GS began subjecting his pubescent son V. to constant sexual abuse, extending to oral penetration, and associated controlling behaviour aimed at isolating the boy from family and social connection, that continued from 1976 into V.'s adulthood and his time at university until V. at age 23 felt able to tell GS that their shared sexual activity should stop. Having then ceased contact with his father, V. had sought him out in 2019 to challenge him about his historic behaviour, and the police becoming involved in 2021. Prosecuted (under the statutory law in force at the time of offending) for indecency with a child in the period when V. was aged 11 to 13 and for indecent assault when the boy was aged 14 to 15, GS, by now aged in his mid-80s, had pleaded guilty, accepting V.'s recollection in full while claiming poor memory. V. had experienced enduring and severe psychological damage arising from his traumatising ordeal. GS had no other criminal history.
Citing GS's very high culpability and the extreme harm he had caused to V., the sentencing judge identified various aggravating features – ejaculating into his son's mouth, his use of controlling and domineering conduct and the offending location in the family home. In mitigation, he cited: the absence of convictions; GS's advanced age and his associated ill-health. In applying the current relevant Guideline (Sexual Offences, 2013, revised 2022) the judge considered that consecutive sentences were merited but indicated that was constrained by the very much lower maximum sentences for these offences under the law applicable at the time they were committed. Starting with an aggregate starting point of 17 years, he reduced this by half to reflect mitigation, with a further 10% discount for late pleas. That led him to impose 90 months’ imprisonment, with a further aggregate additional liability to licence (required for an offender of ‘particular concern’) of 24 months.
On reference by the Attorney General on grounds of undue lenience, the Court of Appeal reiterated the principles that have been established in recent leading judgments when approaching historic sexual offending, including the stipulation that the sentencer should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence. In this instance, the judge had been correct to identify that, under the guidelines for the equivalent modern offences, the totality of GS's offending would have attracted a starting point in excess of 20 years for what could be justifiably characterised as including a campaign of rape.
However, the judge had fallen into error in feeling constrained to take a lower figure than that of 20 years by reason of the maximum sentences for the offences charged, which had led to him to treat an appropriate sentence after trial as one of 17 years for all the offending, before taking account of personal mitigation. The maximum total sentence for the offences charged, available under the applicable old law, had been one of 26 years. That ‘gave ample scope for sentencing in accordance with the guidelines for the equivalent modern offences so as to reflect modern attitudes’. Further, given the extent of GS's offending, the counts on the indictment being specimen allegations, terms at or approaching the statutory maximum would not have been wrong in principle.
Further, the judge allowed far too great a reduction for personal mitigation, which in reality was not very substantial. He had been ‘entitled to assume some element of ill health’ from the circumstances of the case, such as GS being on crutches in the dock, but ‘not such as to attract a very substantial degree of mitigation in the absence of any report or of any detailed information about the nature of the ill health or any prognosis’. Old age merits a modest degree of mitigation, though ‘prisons are generally able to make provision for the elderly’. An appropriate total sentence, taking account of all available mitigation, would have been not less than 17 years after a trial which, with a discount of about 10% for the plea, would become one of 15 years three months. The Appeal Court substituted that term, the additional licence provisions remaining unchanged. R v GS (ATTORNEY GENERAL's Reference), [2023] 2 Cr App R(S) 41.
Breach of sexual risk order
In July 2019, K. had been made the subject of a five-year sexual risk order (SRO) made by a magistrates’ court, prohibiting him (here in précis) from: (a) contacting any woman to inform them falsely that she had been previously engaged in sexual activity with him and/or his friends or relatives; (b) using such false claim to persuade any woman to meet him; and (c) being alone with any woman he knew to be vulnerable, through intoxication, mental health problems or homelessness; (d) using any internet-enabled device unless he had given relevant details to the police, did not delete its history and made the device available for police inspection. He had been cautioned as a juvenile for pushing a girl into a toilet at school and demanding oral sex. Women had since complained that he would contact them on social media and falsely suggest that either he or others had been involved with them sexually at parties. That had resulted in a conviction for malicious communication.
Having started to follow V. on Instagram in January 2021, K. had communicated to her in July 2021 that he had walked in on her when she was having sex with another man. She had no recollection of such an incident. He refused to give her any further details unless she went for a drink with him. They had met and drunk together in a bar. When K. told her that he was drunk, V. was concerned for his safety and she accompanied him back to his hotel room, having booked an Uber to collect her from there. She later complained that whilst she waited for her cab K. had sexually assaulted her, penetrating her vagina with his fingers.
When prosecuted for sexual assault by penetration and breach of SRO, K. claimed that all activity was consensual and contested the breach. Having been acquitted of sexual assault in May 2022, he was granted bail in respect of the breach, with conditions that prevented him from accessing or creating any social media platform and from owning more than one phone, details to be supplied to the police. In November 2022, the police received information about Snapchat activity traceable to his phone and attributed to that phone number. On searching his home officers located a phone in his bed that was being used in breach of his bail conditions and SRO. He denied that the phone was his, said he did not know who it belonged to and refused to provide the phone's PIN number. Remanded in custody, K. applied to be re-arraigned in respect of the SRO breach and changed his plea to guilty. Prior to sentence, he was charged with three further SRO breaches, arising from November 2022, admitting two of the allegations. The police now sought an SHPO.
In passing sentence, the judge sought to make clear that he was not having any regard for the sexual assault allegation but described K.'s behaviour as ‘exploitative, manipulative and predatory’. The judge considered it right to assume from K.'s refusal to provide the PIN number that there was material on the phone relating to the SRO that he did not want the police to see because it would divulge further criminality. In any event, K. had admitted to the PSR writer that he had been using Snapchat, though he was still minimising his behaviour and the judge considered that the admissions made had been ‘guarded and not genuine’. Though references from friends and family were favourable, the judge considered that K. ‘put on a different face to them than he put on before other young women’. His friendly persona pulled people in.
Though the Sentencing Council had not provided a Guideline for SRO breach offences, the judge applied the guidance for breach of SHPO (2018), thus indicating in respect of the episode involving V. a starting point of three years with a range between 24 months and 54 months. K.'s subsequent offending had been persistent, aggravated by his criminal record and his breach of bail and disobedience to court orders. The judge identified a starting point of 24 months with a range between 36 weeks and 36 months. In respect of V. he reduced a term of 42 months to 39 months to reflect totality, with a 15% discount for plea, resulting in a sentence of 33 months. In respect of the further offending, he reduced a term of 33 months to 30 months to reflect totality, with a full discount for the plea, resulting in a sentence of 20 months, consecutive, making an aggregate term of 53 months. The judge also imposed the requested SHPO but was subsequently informed that there was no power to make an SHPO for breach of SRO and so used the slip rule to vary the SRO to match the terms of the unlawful SHPO and extended the duration of the SRO to 20 years.
On appeal, it was submitted on K.'s behalf that though the SHPO Guideline was relevant, and both offences carried the same maximum penalty, the judge had not paid sufficient regard to distinctions between the orders in determining breach penalty. An SHPO could be made only if there was a previous conviction for a relevant offence whereas an SRO could be made without any underlying offence having been committed. Further, it was inherent in the existence of an SHPO being imposed after an offence had been committed that rehabilitative work would have been conducted, whether in the community or in custody. A downward adjustment from the starting point in the SHPO Guideline had thus been merited.
The Court of Appeal observed that in respect of SHPO and SRO breach, ‘the judge should look at the circumstances which gave rise to the order that was made’. Where a person is prosecuted for breach of an SHPO, a judge is not resentencing for the original offence which resulted in the imposition of the SHPO. Rather, the judge is considering the circumstances of the breach against the relevant background. The specific factors which are identified under both culpability and harm in the SHPO Guideline can readily be applied to breach of a sexual risk order, as can the factors which increase or reduce seriousness or reflect personal mitigation.
Further, the Appeal Court did not accept that there is a distinction between an SHPO and an SRO because the former presupposes that there will have been some rehabilitative intervention. ‘This may or may not have happened depending on how quickly the SHPO has breached.’ In any event, the nature of rehabilitation is not referred to in the SHPO guideline. In some cases of SHPO breach it may be a mitigating factor that the defendant had not received rehabilitative intervention, and possibly ‘it may be an aggravating factor if a person has had the benefit of such intervention and has nevertheless breached the order’. However, the possible existence of rehabilitative interventions is not a reason for suggesting that the starting points under the SHPO Guideline should be reduced in the case of an SRO. The sentence here had not been manifestly excessive. The appeal against the length of the term was dismissed.
As regards the variation of the SRO, a court has jurisdiction to vary such an order only on the application of a person authorised to do so by the relevant statute. That included the police but in this case, the police had not made such an application. The slip rule application had come from the Prosecution Service who were not authorised to do so. If the police had applied the Crown Court judge could have opted to sit as a district judge with the powers of a magistrates’ court. The judge should not have varied the SRO himself but should have required a proper application in accordance with the Sentencing Act 2020s.122D. The purported order was thus quashed in the expectation that an appropriate application for variation would be made to the magistrates’ court.
Finally, the Appeal Court noted that the judge had been told incorrectly at the slip rule hearing that K. would not be subject to sexual offender notification requirements. The Court thus clarified that K. would be required to notify. R v KOMBI, [2023] 2 Cr App R(S) 49.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.