R v Darren David Wheeler

For breaches of a Sexual Harm Prevention Order causing or risking little or no harm, repeated offending may support culpability category B and the appropriate harm category is 3. The frequency of breaches should not be used to justify a disproportionate further increase in sentence. A short interval between making the order and its breach is a serious aggravating feature. Consecutive sentences must reflect mitigation, guilty plea credit and totality. An extension of time to challenge conviction may be refused where the guilty plea was clearly instructed, properly advised, voluntary, and unsupported by any arguable vitiating factor.

The appellant pleaded guilty in the Crown Court at Woolwich to two breaches of a Sexual Harm Prevention Order. He was sentenced to consecutive terms of six months and 12 months’ imprisonment. He renewed an application for an extension of time to seek leave to appeal conviction and sought to adduce fresh evidence concerning his solicitors’ service. He also appealed sentence on limited grounds, challenging the categorisation of the offences, the starting points and the application of totality.

1. Conviction appeal. The application for an extension of time to seek leave to appeal conviction was refused. The fresh evidence from the appellant’s mother did not alter the single judge’s assessment. The appellant had given clear instructions to counsel that he wished to be arraigned and then entered guilty pleas. There was no arguable basis for concluding that the pleas were unintended, improperly advised or otherwise vitiated. The case against him was overwhelming.
2. Sentencing categorisation. The offences properly fell within culpability category B. They caused or risked little or no harm or distress and therefore fell within harm category 3. The frequency of previous breaches was reflected in the culpability categorisation. It did not justify increasing the six-month starting point for count 2 to 16 months.
3. Aggravating feature and mitigation. The short period between commencement of the order and its breach was a serious aggravating feature. It justified increasing the starting point for count 2 from six months to nine months, but not further. Personal mitigation arising from the appellant’s disabilities reduced that figure to eight months, which became six months after 25 per cent credit for the guilty plea.
4. Totality and count 1. Count 1 was less serious. Although a consecutive sentence was appropriate, the original eight-month term failed to allow adequately for mitigation, the guilty plea and totality. The appropriate sentence was two months’ imprisonment.
5. The sentence appeal was allowed. The consecutive sentences were substituted with six months on count 2 and two months on count 1, producing an aggregate sentence of eight months’ imprisonment. The fresh-evidence application was considered under section 23 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): refused the application for an extension of time to seek leave to appeal conviction and allowed the appeal against sentence, substituting an aggregate sentence of eight months’ imprisonment.
• Single judge: refused leave to appeal conviction, granted limited leave to appeal sentence and granted a representation order.
• Crown Court at Woolwich: recorded guilty pleas and imposed consecutive terms of six months and 12 months’ imprisonment.