England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		9 March 2010

Tuesday 9 March 2010

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Griffith Williams to give the judgment of the court.

MR JUSTICE GRIFFITH WILLIAMS:

1. On 29 January 2010, at the Crown Court at Peterborough, the appellant, Steven Victor Grosvenor, pleaded guilty to an offence of failure to comply with the notification requirements of a Notification Order, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003. He was sentenced by His Honour Judge McKittrick to eight months imprisonment. No separate penalty was imposed for an offence of obstructing a constable. He appeals against sentence by leave of the single judge.
2. On 30 March 2009, at the Crown Court at St Albans, the appellant was sentenced to a total of twelve months imprisonment for twenty offences of possession of indecent photographs or pseudo-photographs of a child (mostly level 4 images), one offence of breaching a Sexual Offences Prevention Order by which he was prohibited from possessing photographs of children under the age of 16 years, and three Road Traffic Act offences. He was ordered to comply with the notification requirements for ten years.
3. The appellant was released on licence from that sentence on 27 August 2009. A condition of the licence was that he reside at a probation hostel in Peterborough. He had made it clear before he was sentenced on 30 March that he would not be prepared to reside at a probation hostel when released. He did not go there, as directed, nor did he attend at a police station to notify the police of his address or whereabouts.
4. He was arrested at an address in Northampton on 4 October 2009 when he initially gave a false name (which gave rise to the charge of obstructing a constable), although he gave his correct name after only a matter of minutes. He was returned to prison on 5 October.
5. When he was interviewed about these matters on 5 November 2009 the appellant said that he had been aware of the requirement to register with the police, but that he had been "sofa surfing", that is to say that he had no fixed address and had been sleeping on the sofa at the homes of various of his friends. He said that he knew he was in breach of the licence condition and had expected to be arrested and recalled at any time. He said that as he was of no fixed abode he took the view that there was no address that he could notify to the police. He expressed concern that the police had gone to his neighbours in the past and informed them that he was a sex offender, and that he therefore had no intention of giving an address. It was his intention to vanish "into the ether".
6. The appellant is 37 years old. He has been convicted of 210 offences on 39 occasions, although these offences in the main involved the taking of motor vehicles and allied Road Traffic Act offences. On 12 August 1999 at Cambridge Magistrates' Court he was sentenced to five months imprisonment for an offence of taking indecent photographs or pseudo-photographs of children. Although the antecedent history does not record it, he was made the subject then of the notification requirements because on 13 July 2000, at the same magistrates' court, he was sentenced to seven days imprisonment for an offence of failing to notify the police of his address. On 19 June 2003, at the Crown Court at Luton, he was sentenced to six months imprisonment with an extension period of three years, and made subject to the notification requirements for seven years for an offence of making an indecent photograph or pseudo-photograph of children. No separate penalty was imposed for an offence of failing to notify the police of his address. On 31 March 2008, again at the Crown Court at Luton, he was sentenced to concurrent terms of six months imprisonment for nine offences of making or possessing indecent photographs or pseudo-photographs of a child. He was again made subject to the notification requirements for seven years. The history of his relevant offending ends with the conviction on 30 March 2009 to which we referred earlier in this judgment.
7. On the appellant's behalf Mr Johashen submitted that it was known before he was released on licence that he would breach his licence. We are at a loss to understand how that mitigates the offence. He submitted that the sentence should have taken into account the appellant's mistaken belief that in the absence of fixed accommodation he was not obliged to notify the police of his address. To that we shall return. Mr Johashen submitted that when serving what remained of the sentence, the appellant co-operated with the Probation Service and provided it with details of the address at which he proposed to live on his release so that it could be checked, thus demonstrating that he intends in future to comply with the notification requirements.
8. The burden of Mr Johashen's submissions was that the appropriate sentence should have been no more than three months imprisonment. In support of that submission we were referred to three decisions of this court: R v Clark [2003] 1 Cr App R(S) 2, R v B [2005] 2 Cr App R(S) 65, and R v Bowman [2006] 2 Cr App R(S) 40.
9. Before we refer to those decisions, it is necessary to consider the statutory provisions which are to be found in Part 2 of the Sexual Offences Act 2003. Section 84(1)(d) provides that an offender who has been made subject of these provisions must (our emphasis), within the period of three days beginning with his release from custody, notify the police of his new home address or the address of any other premises in the United Kingdom at which at the time the notification is given he regularly resides or stays.
10. Giving the judgment of this court in B, Aikens J (as he then was) said:

"9. The provisions of the Sexual Offenders Act 1997, re-enacted in the Sexual Offences Act 2003, that require notification of the whereabouts of sexual offenders are important. Those provisions are there for the safety of the public, and also in some cases for the protection of the offender. It is vital if the purposes of those provisions of the Sexual Offences Act 2003 are to be fulfilled that the requirements of notification are complied with by offenders. That is signalled by the fact that the maximum sentence for failing to comply with those provisions is one of five years' imprisonment."

11. In Clark the facts were that the appellant, who had been convicted in 1996 of attempting to abduct a child, breached a Sex Offender Order requirement that he should not reside at a place where persons under 16 resided. By breaching that requirement he failed also to notify the police of a change of address. There was no suggestion on the facts of that case that any child residing at the premises was in danger of any offending by the appellant. This court quashed a sentence of three years imprisonment and substituted for it a sentence of 18 months imprisonment for the breach of the Sex Offender Order, but upheld a sentence of three months imprisonment as "perfectly proper and proportionate to the offence", although it ordered that it should be served concurrently with the 18 month sentence because the facts were the same as those which formed the principal offence.
12. In B the appellant was released on licence from a sentence of five years imprisonment for an offence of attempted rape on condition that he reside when on licence at a hostel in Brighton. He failed to notify the police of his address and within days left the hostel. When he was arrested some weeks later for an unrelated matter he was taken into custody and his licence was revoked for a period of four months. This court quashed a sentence of six months imprisonment for the notification offence and substituted for it a sentence of three months imprisonment.
13. In Bowman the appellant was convicted of rape in 1993. In 1998 and in March 2005 he was convicted of failing to notify the police of his address. Following the later conviction, he again failed to notify the police when he moved out of an address and lived rough for three months before he moved into a new address, the details of which he notified to the police. This court substituted a sentence of two months imprisonment for the sentence of six months imposed at the Crown Court.
14. We observe that in each of those cases, by reason of the offender's failure to comply with the notification requirements, his whereabouts were unknown for only a matter of weeks in the cases of Clark and B, and for some three months in the case of Bowman.
15. These decisions suggest that the sentencing range following conviction for failing to notify a change of address for periods of up to three months or so is in the range of four to six months, but we would emphasise that such a range is only appropriate in the judgment of this court where there are no aggravating factors. Where a sexual predator deliberately flouts the notification requirements, or there are repeated breaches of the notification requirements, a longer sentence would be appropriate. The fact that an offender chooses to live rough is not necessarily a mitigating factor. While this court recognised in Bowman (paragraph 7) the difficulties of complying with the notification requirements when an offender is of no fixed abode, or homeless, the Act imposes a mandatory duty on the offender to notify the police of his whereabouts and so an offender's decision to be of no fixed abode when accommodation is or can be made available to him will rarely mitigate the offence.
16. We return to the facts of the present case. There is no evidence that the appellant is a sexual predator. His whereabouts were unknown for some five weeks and his use of a false name was an instinctive reaction from which he quickly resiled. All that said, this was the third occasion when he had failed to comply with the notification requirements. There is also a conviction for a breach of a Sexual Offences Prevention Order. These are matters which in the judgment of this court indicate on the appellant's part an indifference to court orders.
17. We are satisfied that it cannot be argued that there is a ceiling of three months imprisonment or so for offences of this nature, not least when the offender has a settled intention to ignore the provisions. In the judgment of this court the sentence imposed by His Honour Judge McKittrick cannot be said to be manifestly excessive.
18. It may be appropriate for the issue of the level of sentence for this type of offence to be reconsidered by another division of this court for the purposes of a guideline decision. With those observations we conclude this judgment by dismissing the appeal.