S122. Breach of foreign travel order
Date Updated: January 2012
Title: Sexual Offences
Offence: Breach of foreign travel order
Legislation: Sexual Offences Act 2003 - S122
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 and the magistrates courts guidelines. The CPS sentencing manual for breaches of a SOPO (s113) may also assist.
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 that 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
No cases on this but see Fenton on breach of a SOPO:
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.
Consider Also
- A conditional discharge is not available for breaches of a SOPO.
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