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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT GUILDFORD MR RECORDER HUNTER 45MV0808522 CASE NO:202400978 A2 [2025] EWCA Crim 806 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE GREEN
MRS JUSTICE CHEEMA GRUBB
MR JUSTICE GOOSE
REX
v
ALEXANDER ROBINSON
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MR TOMAS McGARVEY appeared on behalf of the Appellant
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JUDGMENT
MR JUSTICE GOOSE:
On 13 October 2023 the appellant, Alexander Robinson, who is now aged 28, pleaded guilty in the magistrates' court to offences of breach of a Sexual Harm Prevention Order contrary to section 103 of the Sexual Offences Act 2003, and of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. He was committed for sentence to the Crown Court pursuant to section 14 of the Sentencing Act 2020.
On 23 February 2024 in the Crown Court at Guildford before Mr Recorder Hunter, the appellant was sentenced to 6 months' imprisonment, suspended for 24 months, with conditions of attending an Accredited Programme for 27 days, a Rehabilitation Activity Requirement for up to 30 days and to complete 100 hours of unpaid work. A concurrent sentence of 3 months' imprisonment, also suspended for 24 months, was imposed in respect of the indecent images offences.
The appellant was also made the subject of two further orders: a Sexual Harm Prevention Order for 10 years and a Notification Requirement under Part 2 of the Sexual Offences Act 2003, also for 10 years. In addition, he was ordered to be included in the relevant list maintained by the Disclosure and Barring Service.
The appellant appeals with leave of the Single Judge. The appellant is focused upon the 10-year term of both the Sexual Harm Prevention Order and the Notification Requirement.
The offences
On 7 December 2018 the appellant (who was then aged 22) was convicted of three offences of making indecent images of children contrary to the 1978 Act. He was made the subject of a Sexual Harm Prevention Order for 5 years, with conditions including that he should not use any internet enabled device unless it had the capacity to retain and display its history. Also, the appellant was required to notify the appropriate officer of any such device he possessed and to make it available upon request.
On 28 July 2022 the police attended the appellant's home address and requested to see his mobile phone. Upon reviewing his phone, it became clear that the appellant had permission and use of two other mobile phones which were logged on to the internet at his address. A search was undertaken, which eventually revealed the location of two Nokia phones inside a bag within a communal shelf at the rear of the property. The failure to disclose those phones to officers for inspection was in breach of the Sexual Harm Prevention Order made on 7 December 2018. Once the initial phones were seized and examined, one of them revealed the images of children, two of which were within category C (the lowest level of seriousness for such material). The third image was a cartoon revealing similar activity and at the same level of seriousness.
Sentencing
In a pre-sentence report dated 11 December 2023 its author assessed the appellant as being suitable for programme treatments within a community order or attached to a suspended sentence of imprisonment. Significantly, the appellant was assessed as posing a low risk of offending within the next two years for general offending but a high risk in respect of indecent image offending. He was also found to be of high risk of self-harm.
In sentencing the appellant, the Recorder concluded that the offences crossed the custody threshold and required the imposition of a sentence of imprisonment but acceded to the suggestion within the pre-sentence report that it be suspended. The total sentence was 6 months' imprisonment suspended for 24 months and the programme requirements we have identified were imposed.
The Recorder then stated as follows:
"As a consequence of this sentence, there will be notification requirements. You’ll be placed on the sex offenders register for a period of 10 years and you will be told of the requirements there. I’m also imposing another Sexual Harm Prevention Order for the period of notification which in this case will be a period of 10 years."
The Recorder did not go on to explain why the period of both orders was 10 years, although it was implicit in sentencing that a further and longer period were reasonable given the breach offence.
Grounds of Appeal
The appellant initially provided his own grounds of appeal in which he explained that the 10-year period for both orders was too long. In helpful advice and grounds of appeal by Mr McGarvey on behalf of the appellant, for whose written and oral submissions we are grateful, it is contended that the notification requirement for a 10-year term was not lawful because it exceeded the 7-year maximum within section 80 of the Sexual Offences Act 2003. Further, in order to ensure that the Sexual Harm Prevention Order and notification requirements are conterminous, both should be reduced to 7 years.
In a Respondent's Notice the prosecution have accepted as correct that the period of the notification requirements must be reduced and that it would be appropriate to do so for the Sexual Harm Prevention Order also.
Discussion and conclusion
In passing a suspended sentence of 6 months' imprisonment, the court was also required to impose a notification requirement the length of which was to be determined by section 80 of the Sexual Offences Act 2003. For a sentence of imprisonment of 6 months or less, that period is 7 years beginning with the date of conviction. Therefore, the imposition of a 10-year notification requirement did not comply with section 80 of the 2003 Act. It follows that we must reduce the notification term to 7 years from the date of conviction.
On behalf of the appellant, Mr McGarvey also argues that once the notification requirement is reduced to 7 years, the Sexual Harm Prevention Order should be similarly reduced. This is to achieve both orders of the court operating for the same period of time. He refers to section 352 of the Sentencing Act and a previous decision of this court in a different constitution in R v Kyle Stevens [2023] EWCA Crim 397. The length of a sexual harm prevention order, as well as its terms, must be that which is necessary to protect against an identified risk of harm and be proportionate to the nature and scale of that risk. No issue is taken by the appellant on the terms of the order, only its length in comparison with the notification requirement.
Whilst section 352 of the Sentencing Act 2020 makes provision for the period of the notification requirement to match that of the sexual harm prevention order, in the circumstances of the appellant we are satisfied that the period needs to be increased from the 5-years' period of the order made in 2018: firstly, he committed the further offences in breach of that earlier order, and secondly, he presents as a high risk of further similar offending as identified within the pre-sentence report. Accordingly, a longer period of order was required.
The Recorder, when imposing a 10-years' Sexual Harm Prevention Order, did not explain why it was that length rather than a period between 5 and 10 years, other than it required a period in excess of 5 years. Given that the Notification Requirement period must be 7 years, we consider that the Sexual Harm Prevention Order should also be for 7 years. Accordingly, we allow this appeal against sentence limited to the period of both requirements to 7 years. All other orders will remain undisturbed.
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