Carr, R v

A sentence for breach of a sexual offences prevention order must reflect the gravity of the particular breach, including any repetition, its effect on the protected person and the need to protect the public. Those features do not justify a disproportionate sentence. Sentencing comparison must distinguish less serious contact from conduct such as stalking or attending the protected person’s home. A targeted second breach by sending a card to the original victim warranted immediate custody, but a four-year sentence was excessive. A concurrent sentence of 12 months was appropriate.

The appellant pleaded guilty to breaching a sexual offences prevention order which prohibited him from approaching, following or communicating with females under 16. While on licence following an earlier breach and offences involving indecent photographs of children, he sent a Christmas card directly to a 14-year-old girl whose earlier complaint had led to the order.

At the Crown Court at St Albans, the judge imposed four years’ imprisonment, concurrent with the custodial term being served following recall on the earlier extended sentence. The appellant appealed against sentence. The issue was whether the four-year term properly reflected the seriousness of this second, targeted breach.

1. Appeal allowed. The four-year sentence was set aside and replaced by 12 months’ imprisonment, concurrent with the custodial term then being served.
2. The sentencing judge was entitled to treat the matter as serious. It was a second breach, it was directed at the girl whose fear had contributed to the making of the order, and public protection was an important sentencing consideration.
3. Those aggravating features nevertheless had to be assessed by reference to the conduct constituting the breach. Sending the Christmas card was less serious than stalking the girl or going to her home. The court considered the sentencing comparisons reviewed in R v Fenton [2007] 1 Cr App R(S) 97, including R v Wilcox [2003] 1 Cr App R(S) 43. They demonstrated that the four-year term, only 20 per cent below the statutory maximum, was disproportionate to this breach.
4. The court noted that the sentencing judge’s reference to an inability to impose a consecutive term concerned section 265 of the Criminal Justice Act 2003. That circumstance had already been taken into account. The proper sentence was 12 months’ imprisonment.

• Court of Appeal (Criminal Division) In [2009] EWCA Crim 224, the court allowed the sentence appeal and substituted 12 months’ imprisonment, concurrent with the existing custodial term.
• Crown Court at St Albans The sentencing judge imposed four years’ imprisonment for the admitted breach of the sexual offences prevention order, concurrent with the term being served following recall.
• Central Hertfordshire Magistrates’ Court Made the sexual offences prevention order on 16 January 2007.