S113. Breach of SOPO or interim SOPO
Date Updated: January 2012
Title: Sexual Offences
Offence: Breach of SOPO or interim SOPO
Legislation: Sexual Offences Act 2003 - S113
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:
- On indictment - 5 years
- Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Aggravating and Mitigating Factors
There are no sentencing guidelines. Some assistance may be provided by the sentencing guidelines for breach of a protective order (although it does not specifically address SOPO'S) and the magistrates courts guidelines.
The guidance for breach of a protective order suggests that were he breach also constitutes an offence both should be charged, Where necessary, consecutive sentences should be considered to reflect the seriousness of the counts and achieve the appropriate totality. If only the breach is charged then the sentence should reflect hat it amounts to a substantative offence aggravated by the fact it involves a breach of an order. Equally if only the substantative offence is charged the breach of the order should be treated as an aggravating factor.
The guidance goes on to recommend that If breach of a protective order has been charged where no substantive offence was involved, the sentence should reflect the circumstances of the breach, including whether it was an isolated breach, or part of a course of conduct in breach of the order; whether it was planned or unpremeditated; and any consequences of the breach, including psychiatric injury or distress to the person protected by the order. As the orders referred to in the guidance (restraining and non-molestation orders) often have a named complainant it is submitted in the case of a SOPO the court should look for injury or distress to any 'class of person' covered by the order.
When sentencing for a breach of an order, the main aim should be to achieve future compliance with that order where that is realistic.
The guidance suggests that breaches of an order be treated more seriously than breaches of a conditional discharge.
Aggravating features for breaches of an order that may be relevant to a SOPO include:
- Vulnerable victim,
- Offence is a further breach
- History of breaching court orders,
- Only short time since order made.
The magistrates guidelines state that when sentencing for the breach of an order for which there is not a specific guideline, the primary objective is to ensure compliance.
Relevant Sentencing Case Law
R v Brown [2002] 1 Cr App R (S) 1 HELD: It would be wholly illogical if against the background the order was for the protection of children, a judge did not have the protection of children foremost in his mind. The quality of the acts which constituted the breach are not the only consideration in determining seriousness.
R v Clark [2002] EWCA 1009 D had a perverted interest in girls of 9 and 10 an order was made saying he he must not reside with people under 16. After complying for a year he moved to an address where there were two boys aged 3 and 18 months. He did not notify the address to the police. HELD: There was no suggestion of targeting of girls. The appropriate sentence was 18 months (not 3 years) for the breach and 3 months concurrent (not consecutive) for the notification breach as it arose from the same facts.
R v Wilcox [2002] EWCA 1430 D had a business arranging children's parties. The SOPO originally allowed him to arrange the business side. It was varied after a breach to allow him to attend provided he left an hour before the start and did not return until an hour after. He remained at 5 parties over a 3 week period. HELD: The real offence was the continual breach. Custody was inevitable but 1 year not 2.
R v Fenton [2007] 1 Cr App R (S) 97 - D 43 with 56 convictions including a 9 year sentence in 1992 for rape. In 2000 a SOPO was made. D breached it within 3 days and received 12 months. The order was renewed in 2003 and there were a number of breaches. In 2005 the defendant while drunk made lewd suggestions to a number of women outside a night club. The SOPO banned him from being drunk other than in a private dwelling or threatening behaviour towards any female. The PSR said D denied the offence and showed no victim empathy. In addition he was described as having a borderline personality disorder with a high risk of reoffending and causing harm to the public. HELD: A proper approach is to consider the sentences for ASBO's. If the breach does not involve a real or obvious risk to the group that it is designed to protect then a penalty that allows the offender to live within the order may be appropriate but in the case of repeated breaches a custodial sentence would be necessary. If the breach does create a real or obvious risk to the group it is designed to protect then a higher custodial sentence may be imposed than the specific criminal offence would attract. D had not shown willingness to seek or take help available, which was a feature in cases where lesser sentences had been justified. 2 and a half years was not manifestly excessive.
R v Byrne [2009] EWCA Crim 1468 - D was sentenced in 1985 to 15 years for buggery, involving young boys. The same year he got a further 7 years for similar offences. In 2006 following concerns about him loitering near children and schools a SOPO was made. D pleaded guilty to seven breaches. Over a 16 month period he befriended 2 14 year old boys taking them to the cinema and the park, playing football with them etc. Some of this was with there parents present. It was accepted there was no evidence of any improper behaviour. In interview D admitted the breaches saying he wanted to prove he could be in the company of children without laying a finger on them. HELD: These breaches were calculated defiance. This was a very serious case 2 years.
R v Hemmingway [2010] EWCA Crim 408 32 months upheld for a defendant with a history of breaches who was hostile to authority and had no intention of changing his behaviour. CA thought the sentence was severe but justified by the history of disobedience.
Consider Also
- A conditional discharge is not available for breaches of a SOPO.
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