R v Nafees Ahmad

The appellant Nafees Ahmad, who is aged 37, appeals the sentence imposed upon him on 12 July 2024 in the Crown Court at Manchester, Crown Square, by Mr Recorder Rankin. He had previously pleaded guilty in the Magistrates' Court on 20 May 2024 and was committed for sentence to the Crown Court for three offences of breach of a Sexual Harm Prevention Order, contrary to section 103I (A1) and (3) of the Sexual Offences Act 2003, together with an offence of Failing to Comply with Notification Requirements, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003. He was sentenced to a total of three years' imprisonment. He appeals that sentence with leave of the single judge.

Before going further, we must mention an error in the statutory provisions which were used in these proceedings. As we have stated, the appellant was charged and committed for sentence to the Crown Court for breach of section 103I (A1) and (3) of the Sexual Offences Act 2003. However, it would appear that the Sexual Harm Prevention Order had been made under section 345 of the Sentencing Code and that the breach should have been charged as contrary to section 354 of the Code rather than under the Sexual Offences Act 2003. It appears this error has not, however, invalidated his convictions and sentence in this appeal, as the appellant was not misled or prejudiced by this technical charging defect which has been confirmed to this court, helpfully, by Ms Henshaw. Accordingly, the convictions were safe (see R v Stocker [2013] EWCA Crim 1993, [2014] 1 Cr App R 18).

The background to this sentence involved the appellant being convicted of attempting to engage in sexual communication with a child on 14 February 2023 for which he was sentenced, on 23 May 2023, to 10 months' imprisonment suspended for 18 months. He was also made the subject of Notification Requirements and a Sexual Harm Prevention Order for a period of 10 years. Subsequently, on 14 June 2023 he appeared before the Magistrates' Court for breach of the Sexual Harm Prevention Order, to which he pleaded guilty, and was sentenced in the Crown Court to imprisonment for six months. Although it is not recorded in his record of antecedents, the suspended sentence was also activated in full consecutively, making a total sentence of 16 months' imprisonment.

After he was released, the Sexual Harm Prevention Order continued, such that the appellant was the subject of a routine compliance visit by the police. On 19 May 2024 they attended the appellant's address and asked he if he had any devices other than those already disclosed and registered with the police. The appellant denied that he had. But after checks upon the appellant's registered mobile phone, a number of messages were revealed to numerous females asking them to contact him on a separate telephone, ending 4163. That was not a registered phone in accordance with the order. When asked about it, the appellant said the phone belonged to a friend and was not his. He denied that he had any other devices. When the police used the appellant's phone to call that 4163 number, a mobile phone was heard to ring and was discovered hidden in a plant pot in the bedroom of the appellant's home.

Investigation of the unregistered mobile phone revealed six social media accounts and alias usernames, all being used by the appellant and not registered within the terms of the Order. Officers found Snapchat accounts with an image of the appellant at 6 o'clock that morning, which had been sent to a female and within which the appellant appeared and was wearing the same clothes he wore at the time of his arrest. It appeared that the appellant's messages were to adult females rather than children.

After arrest the appellant made no comment in police interviews but in due course, as we have stated, he pleaded guilty before the Magistrates' Court.

In sentencing the appellant, the Recorder concluded that the breach offences (being numbers 1 to 3 on the committal notice) fell within category A2 of the guideline and provided a Starting Point for sentence of two years' imprisonment with a range of 36 weeks to three years. The aggravating factors of seriousness included the previous breach offence in 2023 and that the appellant had made efforts to hide the device from the police.

In mitigation, the appellant had not at the time of these offences been in contact with children. The Recorder, appropriately, chose the breach offences as the lead for sentencing purposes and imposed concurrent sentences for all the offences.

Before discount for plea, the sentence arrived at was 54 months (or four and a-half years), substantially above the sentence range. This was to reflect the overall offending. After plea discount of sentence, three years was imposed.

On behalf of the appellant it is argued that the appropriate category for the breach offences was A3 and not A2, which provided a Starting Point of one year in custody with a range of up to two years; secondly, that the sentence of 54 months before plea discount was excessive. On behalf of the appellant, Ms Henshaw, for whose submissions we are grateful in the course of this appeal, argues that the harm caused by the appellant would more comfortably fit within the lesser category.

Whilst it is accepted on behalf of the appellant that the breach offences were appropriately categorised at the upper level of culpability because there was a persistent breach, it is argued that those breaches caused or risked little or no harm or distress. It is submitted that there is no evidence of any intent to call children. However, this rather overlooks the broader aspect of the risk of harm. In possessing an additional mobile phone, which had not been disclosed or registered with the police in accordance with the Order, it made available the opportunity for the appellant to cause harm or distress to children at some point. The fact that he had been convicted of such offending previously, giving rise to the Sexual Harm Prevention Order, meant that there was a real and significant risk that he would do so again.

We are satisfied that the Recorder was correct to determine that the level of harm for these breach offences fell within category 2 and not category 3, in the circumstances of the offences. However, even taking into account the aggravating factors of seriousness that would necessitate for each of them a starting point of two years within the guideline, we do not consider that such an increase should have been above the upper range in the category. The persistence of the offending leading to three offences was reflected in the categorisation of culpability and should not be reflected in any further upward adjustment of the sentence.

The failure to comply with Notification Requirement does appropriately lead to an increase in the sentence, but in our view should not lead to a sentence above three years' imprisonment.

Accordingly, and with respect to the Recorder, we are persuaded that the sentence of 54 months' imprisonment before plea discount was excessive. In our judgment the sentence of three years' imprisonment was appropriate which, after full plea discount, leads to a sentence of two years' imprisonment. Therefore, we allow this appeal against sentence and reduce the sentences on offences 1 to 3, each being a breach of the Sexual Harm Prevention Order, to two years' imprisonment, all being concurrent with each other and with the sentence on offence number 4. The sentence is, thereby, reduced to two years' imprisonment.

To that extent this appeal is allowed.