Byrne, R v

Sentencing for breach of a sexual offences prevention order requires an assessment of both culpability and harm. Culpability is aggravated where the offender deliberately, persistently and wholesale ignores the order. Harm includes the immediate risk created by the breaches and the nature and magnitude of the general risk demonstrated by the offender’s previous sexual offending.

The absence of a further sexual assault does not remove the risk or potential harm caused by sustained breaches. Deliberate and repeated breaches which expose children to a serious underlying risk may properly attract a significant custodial sentence, both for punishment and deterrence.

The appellant appealed, with leave, against concurrent terms of two years’ imprisonment imposed at the Crown Court at Northampton for seven breaches of a sexual offences prevention order.

The order prohibited him from, among other things, associating or communicating with persons under 16, being alone with them, entering specified places, and undertaking work likely to bring him into contact with them. Over about 16 months he deliberately maintained extensive contact with two boys and other children, despite knowing the order’s terms and taking steps to prevent his history becoming known.

No sexual assault was alleged during the breaches. The central issue was whether the concurrent two-year sentences were manifestly excessive.

1. Appeal dismissed. The concurrent sentences of two years’ imprisonment for the seven breaches were not manifestly excessive.

2. In R v Fenton [2007] 1 Cr App R (S) 97, the court had explained that sentencing for breach of a sexual offences prevention order depends on the nature of the breach, including repetition and the risk created for those whom the order protects. A breach involving no real or obvious risk may permit a community penalty, but repeated breaches require custody; breaches creating real or obvious risk may justify substantial sentences.

3. The assessment of seriousness required separate consideration of culpability and harm. Culpability was high because the appellant knowingly and persistently defied the order for about 16 months. Harm was not confined to whether sexual abuse occurred. It included the immediate risks to the children and the underlying general risk reflected in the appellant’s grave previous sexual offending.

4. The appellant’s sustained contact with boys, gifts, outings and occasions alone with them exposed them to risk. His conduct also had the capacity to cause anxiety to the children, their parents and the church when his background emerged. The absence of a further sexual assault did not make the breaches low-level.

5. Significant custodial sentences were necessary to deter calculated and persistent disregard of such protective orders. The court also considered R v Moore [2005] 1 Cr App R 110 as a sentencing comparison involving deliberate and flagrant breaches which put boys at risk.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence and upheld concurrent terms of two years’ imprisonment.
• Crown Court at Northampton: on 27 February 2009, following guilty pleas to seven breaches of a sexual offences prevention order, imposed two years’ imprisonment on each count, concurrently.
• Northampton Magistrates’ Court: on 12 October 2006, made the sexual offences prevention order.