R v Kevin Kombi

Sentencing for breach of a sexual risk order should have regard to the guideline for breach of a sexual harm prevention order, but remains fact-sensitive. The judge should assess the circumstances giving rise to the order and may apply the guideline’s culpability, harm, seriousness and mitigation factors. The absence of rehabilitative intervention does not justify an automatic reduction in the guideline starting points, although it may be relevant mitigation. A sexual risk order may be varied only on a proper application under the Sexual Offences Act 2003. Jurisdiction cannot be created by agreement. Conviction for breach triggers notification requirements under the Act.

The applicant pleaded guilty to three offences of breaching a sexual risk order and received consecutive sentences totalling 53 months’ imprisonment. At a later slip-rule hearing under the Sentencing Code 2020, the Crown Court rescinded an unlawfully made sexual harm prevention order and purported to extend the sexual risk order for 20 years.

The applicant sought leave to appeal against sentence and challenged the Crown Court’s jurisdiction to vary the sexual risk order. The Court of Appeal also considered the effect of the conviction on notification requirements. The central issues were whether the sentence was manifestly excessive and whether the variation had been made by a court on a valid statutory application.

1. Sentence. The application for leave to appeal against the length of sentence was refused. The sentence of 33 months for the offence involving V and the consecutive 20 months for the two later breaches, totalling 53 months, was not manifestly excessive and fell within the sentencing judge’s discretion.
2. A judge sentencing for breach of a sexual risk order should have regard to the guideline for breach of a sexual harm prevention order. The exercise is fact-sensitive. The judge should consider the circumstances giving rise to the order. The guideline’s factors concerning culpability, harm, seriousness and personal mitigation can be applied without resentencing the conduct that led to the original order.
3. The absence of rehabilitative intervention does not require a downward adjustment to the guideline starting points for breach of a sexual risk order. It may be relevant mitigation in an individual case. Conversely, the fact that rehabilitation had been provided may aggravate a breach if the order was nevertheless disobeyed.
4. The judge’s categorisation of the offending and assessment of the starting points were open to him. The credit for the guilty plea on the first offence was generous, given its late timing. The judge also properly addressed totality, although other judges might have imposed a lower sentence.
5. Variation. Under s.122D(1) and (7) of the Sexual Offences Act 2003, a sexual risk order may be varied only on a complaint to a magistrates’ court. Under s.122D(2), the application must be made by the defendant or a relevant chief officer of police. An application by prosecuting counsel was insufficient, and jurisdiction could not be conferred by agreement. The principles in R v Ashford [2020] EWCA Crim 673 were applied.
6. If a permissible application had been made, the judge could have been invited to sit as a District Judge (Magistrates’ Court) under s.66 of the Courts Act 2003. The guidance in R v Gould [2021] EWCA Crim 447 concerning the judge’s capacity, the powers exercised and the necessary records had not been followed.
7. Permission to appeal against the variation was granted. The variation of the sexual risk order was quashed. A proper application for variation should be made to the magistrates’ court. The court also clarified that conviction for an offence under s.122H of the Sexual Offences Act 2003 engages the notification requirements through s.122I(4) and s.80, by operation of law.

1. Court of Appeal (Criminal Division) — [2023] EWCA Crim 784. Leave to appeal against sentence was refused. Permission to appeal against variation of the sexual risk order was granted, and that variation was quashed. The court clarified the applicable notification requirements.
2. Crown Court at Snaresbrook — On 31 March 2023 the applicant was sentenced to consecutive terms totalling 53 months’ imprisonment. On 25 May 2023 the court rescinded the sexual harm prevention order and purported to extend the sexual risk order for 20 years.