Byrne, R v [2009] EWCA Crim 1555

Case No 200901484 A4[2009] EWCA Crim 1555
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 1 July 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE BURNETT
HIS HONOUR JUDGE HALL
(Sitting as a Judge of the Court of Appeal, Criminal Division
Between
R E G I N ACrownv
Between
FRANKIE BYRNE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr J Lloyd-Jones appeared for Appellant
J U D G M E N T

LORD JUSTICE PILL: Burnett J will give the judgment of the court.

[2]MR JUSTICE BURNETT: This is an appeal against sentence brought with leave of the single judge. On 12 October 2006, the appellant was made the subject of a Sexual Offences Prevention Order ("a SOPO") by the Northampton Magistrates. In 2003, he had been released from prison having served two thirds (or thereabouts) of a 15-year sentence for buggery imposed on December 1994. That offence was one of 12 offences for which he was then sentenced. Whilst two of the offences concerned photographs, the other ten all concerned sexual activity with boys.[3]The appellant had been convicted of another series of such offences in 1985, in respect of which he was sentenced to seven years' imprisonment. The application for a Sopo was prompted by police concern that the appellant was associating with children, associating with other sex offenders and loitering near a school. The order made by the magistrates was in wide-ranging terms. Those material to this appeal are as follows:
"It is ordered that the defendant is prohibited from: 1. Seeking the company of or being in the company of any young person under the age of 16 unless authorised in writing by a Police Officer from the relevant Public Protection Unit (for the avoidance of doubt the normal incidental and unavoidable contact of day-to-day life, for example speaking to shop assistants, would not breach this order). 2. Communicating with or contacting any young person under the age of 16 years by writing, telephone, internet, text or e-mail. This prohibition does not seek to prohibit contact with any young person under the age of 16, which is inadvertent and unavoidable in the course of daily activities. 3. Visiting, residing or spending the night in a dwelling where a young person under the age of 16 years lives, unless authorised in writing by a Police Officer from the relevant Public Protection Unit. 4. Undertaking any work, whether paid or voluntary, which by its nature is likely to bring him into contact with young persons under the age of 16 years. ... 6. Being alone with any young person under the age of 16 years. 7. Going into any school, nursery, crèche, playgroup, play area, or swimming pool ..."
That order was expressed to have force until further order.[4]On 27 February 2009, at the Crown Court at Northampton, the appellant pleaded guilty to seven counts of breaching the SOPO. He was sentenced by HHJ Wide QC to two years' imprisonment on each count, to run concurrently.[5]The period during which the breaches occurred extended from April 2007 until August 2008, a period of about 16 months. The breaches principally concerned the appellant's relationship with two boys: S, who was born in 1993; and D, who was born in June of the same year. He also had contact with the siblings of S, and other children with whom he came into contact through a church. The contact with the two boys was protracted, extending over the whole indictment period. The appellant took them to the cinema and bought them food and drink. He took them to shops, and he exchanged phone numbers with S. The appellant made contact with S via his mobile phone. After the initial meeting, the appellant began to visit the church where S's family worshipped. He there met both his parents and his three younger siblings.[6]The appellant began to play football with children at the church. In those circumstances the pastor, very properly, considered that he should make the statutory criminal record checks. Once the appellant had wind of this, he stopped playing football, and so the pastor no longer needed to undertake the checks. The appellant well knew that his previous offending and the SOPO would come to light if checks were made. So it is clear that he carefully conducted himself to avoid that possibility.[7]Nonetheless, the appellant continued with his contact with S and S's family. By way of example, he met the family both at the local park and at their home. In August 2007, the church held its annual trip to a park, and on this occasion the appellant travelled with S's family. He was alone with S and his siblings as he walked around the park, and he played games with them. There was also a visit to a swimming pool, during which the appellant played with the children in the pool, for example by ducking them.[8]In November 2007, the appellant gave S a mobile phone as an early Christmas present, and after Christmas visited the family at their home. He had dinner with them and he played hide and seek with the children. S continued to see the appellant on a regular basis, sometimes at church and almost every Saturday, sometimes on his own, and sometimes with D. The appellant would pay for cinema tickets and sweets and drinks, as we have indicated. For his 15th birthday, the appellant took S out and bought him presents. In June 2008, he gave him another mobile phone.[9]The appellant often met D after school. He sent him birthday cards. The appellant would buy him sweets and drinks and give him expensive presents. Additionally, he gave him clothes, including boxer shorts. He gave him a total of about £500 in cash. At one stage he provided D with his home address, although there is no suggestion that D went there. The appellant also took D to the cinema, not only in the company of S and on his own, but with his mother.[10]In due course, the police became aware of the contact. On 18 September 2008, the appellant was interviewed by the police on a voluntary basis. He agreed that he had been present in the court when the SOPO was made. He had a copy of the order and he understood its terms. PC Gilbert had in fact visited the appellant on six occasions to remind him of its terms.[11]The appellant was very frank in his interview. He made it clear that his continuous breaching of the order had been entirely deliberate. He did it, he said, to prove to himself that he could be in the company of children "without laying a finger on them", as he described it. There is no suggestion that the appellant sexually abused either of the boys or the other children with whom he had contact in breach of the SOPO. The limit of touching was repeatedly placing his arm on the shoulders of one of the boys, until that boy, feeling uncomfortable about it, told him not to.[12]In general terms, it is plain that the breaching of this SOPO was a piece of calculated defiance of a court order by the appellant. Mr Lloyd-Jones, who appeared before the learned judge as he did before us, submits that the sentence of two years' imprisonment on a plea was simply too long. He submits that the breaches of the SOPO fall at the lowest end of the scale because they were not accompanied by any associated sexual offending or other harm. He also prays in aid the fact that the appellant has not been convicted of further sexual offences since his release from prison in 2003. He suggests that the fears of the police and magistrates have in fact been shown to be groundless. In particular, he submits that, for the most part, the contact with children took place in public when other adults were either present or nearby. Indeed, it was principally on the cinema trips when the appellant was alone with one or both of the boys.[13]Mr Lloyd-Jones has drawn our attention to the valuable discussion of principle and of other cases relevant to sentencing for breach of a SOPO in R v Fenton [2007] 1 Cr App R (S) 97. Leveson J (as he then was), giving the judgment of the court, compared breaches of SOPOs with breaches of Anti-Social Behaviour Orders ("ASBOs"), indicating that the approach in cases involving ASBOs could inform the approach in cases of breach of SOPOs. He noted that, in the case of ASBOs, this court contrasts cases involving repeated breaches, which cause real concern and distress, with isolated breaches or breaches that do not have such consequences. A similar approach was appropriate with SOPOs. If the breach did not involve any real or obvious risk to the section of the public whom it was intended to protect by the order, he indicated that a community penalty, which further assisted the offender to live within the terms of the order, might well be appropriate, although repeated breaches would necessarily involve a custodial sentence, if only to demonstrate that orders of the court were not to be ignored. A breach which did create a real or obvious risk must inevitably be treated more seriously, and multiple or repeated breaches might well justify substantial sentences. That is a short summary of the judgment between paragraphs 22 and 25.[14]As we have indicated, in considering the facts of the case before him, Leveson J reviewed a large number of earlier decisions of this court, which are conveniently collected together in volume 3 of Thomas: Current Sentencing Practice at Part B3-7.3. As the court recognised in Fenton, SOPOs are directed towards reducing the risk of further sexual offending by an individual whose sexual tastes put him in jeopardy of offending if he indulges them.[15]We have reviewed the various cases referred to by Leveson J, and those additionally to be found in Thomas. It is plain that each of those cases turns upon its own facts. It is unsurprising that, in the area of breach of SOPOs, there is an almost infinite variety of factual matrices that can arise.[16]In the course of argument, we considered the case of R v Moore [2005] 1 Cr App R 110. It concerned four breaches of a Sex Offender Order made under the Crime and Disorder Act 1998, the statutory predecessor to the current regime. The sentencing judge had imposed a total sentence of six years' imprisonment on a plea. The maximum penalty was five years for a single count, as it is for a breach of a SOPO. The six-year total was achieved by making consecutive sentences. This court reduced the overall sentence to one of three years. That was undoubtedly a tough sentence in the light of the earlier cases, yet this court characterised the offending in that case as constituting deliberate and flagrant breaches of the order in circumstances where young boys had been put at risk, even though no sexual assault had in fact taken place in association with the breach.[17]The importance of whether an appellant has deliberately chosen to ignore a SOPO on a wholesale basis and persistently is a feature that echoes through the previous cases in this area. It goes to the question of culpability, which must always be considered in determining the seriousness of offending.[18]The other aspect that informs an assessment of seriousness is that of harm. Here, the question of an assessment of the risks run by the breach of the SOPO comes into play. In our judgment, that assessment includes not only a consideration of the immediate risks which were generated by the breach to the other people concerned; it also imports a consideration of the nature and magnitude of the underlying general risk posed by the offender, reflected in his previous offending. Sexual offending covers a very wide spectrum, all of it serious. But some much more serious than others. It is to be noted that the underlying offending of this appellant was very serious indeed.[19]In our judgment, the facts of this case suggest a very high degree of culpability on the part of the appellant. He quite deliberately chose to breach the SOPO, essentially putting himself above the law for a period of about 16 months. His contact with these boys were too numerous to particularise. His history of earlier offending suggests a potent sexual attraction to underage boys. Mr Lloyd-Jones does not suggest that these boys were not put at risk at all. They were. But it is true that the risk did not materialise.[20]The general nature of the risk that this SOPO was concerned with was that the appellant would again offend in the way that he did in 1994, which, as we have indicated, was at the top end of the scale for sexual offending. We do not accept that the course of conduct pursued by the appellant has necessarily caused no harm. It is not difficult to imagine the anxiety that the boys are likely to have suffered when they discovered that the appellant's friendship may well have had sexual connotations, nor the anxiety of their parents and those of the church when the truth of the appellant's background became apparent.[21]The seven counts to which the appellant pleaded guilty cover deliberate and constant breaches of the SOPO over a period of 16 months. For the reasons that we have identified, this was a very serious case. Significant sentences are, in our judgment, necessary in this environment as a deterrent. We conclude that the sentence of two years was not manifestly excessive.[22]In the circumstances, this appeal will be dismissed.