Mayne, R. v

In sentencing for breach of a sexual risk order, a court may make measured use of the guideline for breaches of sexual harm prevention orders. That guideline does not apply directly and must be adapted to the different statutory context. In particular, a person subject to a sexual risk order may have no conviction for a sexual offence, and the shared maximum penalty does not justify unmodified use of the guideline.

The seriousness of the breach must reflect the risk from which the order protects children. Serious distress caused to an adult may aggravate sentence, but it does not necessarily make the case one of very serious harm. The wording and proportionality of stringent child-contact prohibitions under the Sexual Offences Act 2003 should be addressed at a hearing where the defendant is present and represented.

The appellant was sentenced in the Crown Court at Northampton to two years and 10 months’ imprisonment for breaching a five-year sexual risk order. The order had been made after he accessed child sexual exploitation pornography online, although he was not prosecuted for that conduct.

He began a relationship with a woman who had two young children. He visited her home without informing her of the order or obtaining the approval required by its child-contact prohibition. The jury rejected his claim that he believed the order prohibited only unsupervised contact with children.

The sentencing judge used the guideline for breach of a sexual harm prevention order, treated the offence as culpability A and harm category 1, and imposed immediate custody. The issue on appeal was whether that approach produced a sentence that was manifestly excessive.

1. The appeal was allowed. The sentence of two years and 10 months’ imprisonment was quashed and replaced with one of 18 months’ imprisonment.

2. The guideline for breach of a sexual harm prevention order could properly be used as a measured aid to sentencing a breach of a sexual risk order. It did not directly govern the latter offence. A sexual risk order may be imposed on a person who has not been convicted of a sexual offence, and the identical five-year maximum penalty did not justify applying the guideline without modification.

3. The appellant deliberately ignored the order when he formed a relationship with a mother of young children and visited her home without the required disclosure or social-services approval. Immediate custody was therefore justified. However, the sentencing judge’s assessment at the bottom of culpability A did not sit comfortably with a starting point of three years and a reduction of only two months.

4. The order sought to protect children from risk of harm. The distress suffered by the children’s mother on discovering the appellant’s history was a relevant aggravating factor. Yet, had she had no children, the conduct would not have breached the order. The case could not properly be placed in harm category 1, even if the sexual harm prevention order guideline had applied directly.

5. The court also expressed concern, obiter, that a prohibition on any child contact, without the qualification of unsupervised contact, could be exceptionally stringent. Such an order should be considered, including its wording and proportionality, at a hearing at which the defendant is present and legally represented. The court contrasted the wording approved in R v Smith [2012] 1 Cr App R(S) 82.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence and substituted 18 months’ imprisonment.
• Crown Court at Northampton HHJ Mayo imposed two years and 10 months’ imprisonment for breach of a sexual risk order and made an indefinite restraining order preventing contact with Laura.