R v Michael John Harris

For sentencing a breach of sex offender notification requirements, the harm category must be based on evidence capable of establishing, to the criminal standard, that the breach risked very serious harm or distress. The original offences and previous failures to comply must be considered, but their age and history alone do not establish high risk where the breach itself caused no serious harm. Persistent, long-term and multiple breaches may justify a sentence above the guideline range in category 2A, particularly where previous similar offences make deterrence material. The sentence must nevertheless remain proportionate: a term double the category starting point was excessive on these facts.

The appellant was sentenced by the Crown Court at Teesside on 2 December 2022 to a total of 32 months’ imprisonment for five failures to comply with sex offender notification requirements, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003. The breaches concerned bank and credit-card details, two social-media accounts and an address where he stayed with a new partner.

The sentencing judge treated the offending as category 1A under the Sentencing Guidelines, based on the highest levels of culpability and harm. The appellant pleaded guilty at the earliest opportunity. He appealed against the harm categorisation and the length of sentence for the first offence. The central issue was whether the evidence established a risk of very serious harm or distress.

1. Appeal allowed in part. The Court of Appeal concluded that the sentencing judge had insufficient evidence to place the offending in the highest harm category. The appellant’s new partner was understandably distressed when informed of his history, but the relationship was genuine, there was no evidence that he had contacted children through her, and the breach itself had not caused very serious harm.
2. In assessing harm under the Sentencing Guidelines, the court must consider the original offences for which the order was imposed and the circumstances in which the breach arose. The original offences, committed 11 years earlier, did not themselves establish a high risk. The history of previous convictions for non-compliance also did not permit an inference of high risk in the absence of evidence supporting that conclusion to the criminal standard. The police statement relied upon did not assess the appellant as being at high risk.
3. The offending therefore fell within harm category 2, culpability category A. The starting point for category 2A was one year, with a range of 26 weeks to two years’ custody. The previous convictions, prolonged period of non-notification and five separate offences were serious aggravating features. They justified a sentence above the guideline range, particularly because the previous similar offences gave the sentence a deterrent function. However, a pre-credit sentence of four years, double the starting point, was manifestly excessive. A sentence of three and a half years before credit for plea was justified.
4. Full credit for the earliest guilty plea reduced the sentence for the first offence to two years and four months. The sentence for the first offence was quashed and replaced with that term. The sentences for offences 2 to 5 were unaffected.

1. Court of Appeal (Criminal Division): In [2023] EWCA Crim 528, leave having been granted by the single judge, the appeal was allowed in part. The sentence for the first offence was quashed and replaced with two years and four months; the remaining sentences were unaffected.
2. Crown Court at Teesside: On 2 December 2022, before HHJ Carroll, the appellant was sentenced to a total of 32 months’ imprisonment for five notification breaches.
3. Teesside Magistrates’ Court: The appellant was committed for sentence on 4 November 2022.