Knowles, R. v

Sentencing for breach of a Sexual Offences Prevention Order must reflect the risk which the prohibited conduct creates for the people whom the order protects. Conduct that appears minor in isolation may warrant immediate custody where it activates a known trigger for serious sexual offending, occurs against a background of non-compliance, and demonstrates that the offender cannot be managed safely in the community.

The risk-based approach in R v Fenton [2007] 1 Cr App R (S) 97 remains a material guide. On a sentence appeal, the court will not interfere unless the sentence was wrong in principle or manifestly excessive.

The applicant had a long history of serious sexual offending against children. He was subject to a Sexual Offences Prevention Order, amended to prohibit him from purchasing alcohol, consuming it in public, or being intoxicated in public between 7 am and 7 pm. Those restrictions reflected the finding that alcohol was a precursor or trigger for his sexual offending.

At Manchester Crown Court, HHJ Atherton sentenced him on 28 June 2011 to 14 months’ imprisonment after he bought alcohol and was intoxicated in public. Although there was no contact with children on that occasion, the sentencing judge took account of his recent disengagement from supervision and failure to attend arranged breath tests.

He sought an extension of time and appealed his sentence, contending that custody was inevitable but that insufficient weight had been given to mitigation. The central issue was whether 14 months’ imprisonment was wrong in principle or manifestly excessive.

1. Extension and outcome. The court granted an extension of time, but dismissed the appeal against sentence. The term of 14 months’ imprisonment was neither wrong in principle nor manifestly excessive.
2. Assessment of a breach. The breach was not to be assessed solely by its immediate appearance. Buying alcohol and being intoxicated in public involved no actual approach to or contact with children, but the prohibitions existed because alcohol was a recognised precursor or trigger for this offender’s serious sexual offending.
3. Risk and compliance. The court applied the risk-based sentencing approach described in R v Fenton [2007] 1 Cr App R (S) 97. A breach which creates a real or obvious risk to those protected by the order requires more serious treatment. Repeated breaches may justify sentences substantially higher than the particular act would otherwise attract.
4. Application to this case. The mitigating features included the apparently limited nature of the breach, the absence of contact with children, the appellant’s distress about repeated moves caused by press attention, and his asserted earlier compliance. However, the fuller material showed that since about March 2011 he had disengaged from supervision, failed to attend breath tests, and caused serious concern. The sentencing judge had approached the difficult exercise carefully and sensitively. The pre-sentence report assessed him as currently unmanageable in the community, so custody was justified.

• Court of Appeal (Criminal Division): Dismissed the appeal against a 14-month sentence for breach of a Sexual Offences Prevention Order.
• Crown Court at Manchester: HHJ Atherton imposed the sentence on 28 June 2011.