Fenton v R

Sentence for breach of a protective order is for breach of the order itself. Proportionality requires the court to consider the seriousness of any underlying conduct, but the sentence is not capped by the maximum available for that conduct as a separate offence.

A breach creating a real or obvious risk to the persons protected by a Sex Offender Order is substantially more serious. Repeated breaches may justify a sentence markedly higher than the underlying conduct alone would attract. Where there is no such risk, community measures may assist compliance; persistent disobedience may nevertheless require custody to uphold the authority of the court.

The appellant had pleaded guilty before magistrates to breaching a Sex Offender Order. On 24 February 2006, the Reading Crown Court sentenced him to two and a half years’ imprisonment.

The breach occurred when he was drunk in Reading and made sexually offensive, abusive and obscene remarks to young women. It was his sixth breach of the order. The appellant had a substantial offending history and reports assessed him as presenting a very high risk of further offending and harm. He did not engage with programmes intended to address his behaviour.

He appealed on the ground that the sentence was manifestly excessive and that a structured treatment-based response was required. The central issue was the proper approach to sentence for repeated breaches of a Sex Offender Order.

1. Appeal dismissed. A substantial custodial sentence was justified, and the term of two and a half years was neither wrong in principle nor manifestly excessive.

2. When sentencing for breach of a protective order, the court sentences the statutory offence of breach. If the conduct also amounts to a separate criminal offence, its maximum penalty is relevant to proportionality. It does not, however, cap the sentence for breach, which is a distinct offence carrying its own maximum sentence.

3. The same approach applies to a Sex Offender Order. Where a breach creates no real or obvious risk to the people whom the order protects, a community penalty may be appropriate to assist compliance. Repeated breaches may nevertheless require custody so that court orders are not disregarded with impunity.

4. Conversely, a breach which creates a real or obvious risk to the protected class must be treated more seriously. Multiple or repeated breaches may then justify a sentence significantly greater than the particular underlying misconduct would ordinarily attract. That reflects the protective statutory purpose of the order.

5. Here, the repeated breaches, the sexually offensive conduct towards young women while drunk, the appellant’s lack of insight, and his refusal to engage with risk-reduction programmes demonstrated the risks which the order was designed to minimise. The breach was not trivial or at the lowest end of seriousness. The court declined to adjourn for a further assessment, leaving any prospective transfer decision to the responsible authorities.

• Court of Appeal (Criminal Division) dismissed the appellant’s sentence appeal.
• Reading Crown Court on 24 February 2006 imposed two and a half years’ imprisonment after the appellant’s guilty plea before magistrates to breaching a Sex Offender Order.