Neutral Citation Number: [2006] EWCA Crim 2156
Case No: 200601348 A5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
HIS HONOUR JUDGE SPENCE
S20050294
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/09/2006
Before :

LORD JUSTICE MOSES
MR JUSTICE LEVESON
and
HIS HONOUR JUDGE WARWICK McKINNON
(sitting as a Judge of the Court of Appeal Criminal Division) 
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Between :

	STEVEN FENTON	Appellant	
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	REGINA	Respondent	

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Mr J. Fielding (instructed by the Registrar of Criminal Appeals) for the Appellant
Mr M. Edmonds (instructed by Crown Prosecution Service) for the Respondent

Hearing date : 19/09/2006
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Judgment
Mr Justice Leveson : 
1.	Having pleaded guilty before Magistrates to an offence of doing an act prohibited under the terms of a Sex Offender Order, this appellant was sentenced on 24th February 2006 by His Honour Judge Spence in the Crown Court at Reading to a term of 2 ½ years imprisonment, with a direction that the period of 137 days spent on remand should count towards the sentence.  He now appeals against that sentence by leave of the single judge.  
2.	To understand the background against which this appeal must be judged, it is necessary to explain the origins of this offence and the history of this appellant.  In the same way that antisocial behaviour orders represented a response by Parliament to the increasing concern about the impact on the public of antisocial behaviour in its many constituent forms, so sex offender orders were similarly directed to those convicted of serious sexual crime.  The intention of the order was to prohibit conduct which might well not otherwise constitute a criminal offence but which gave rise to legitimate concern that it was the precursor to further sexual offending.  
3.	Having been convicted of rape in 1992 (when he was sentenced to a term of 9 years imprisonment), and in the light of concerns about his behaviour (doubtless in part evidenced by a large number of appearances before the court after his release from that sentence, twice for indecent exposure, three times for offences of violence, twice for separate Public Order Act offences and four times for offences associated with drunkenness, on 5 October 2000, the Liverpool Magistrates made this appellant the subject of a Sex Offender Order under section 2 of the Crime and Disorder Act 1998 in his name at that time, Steven John Beech.  Its terms included a prohibition upon the appellant being drunk in any place other than a domestic dwelling and from using towards any female threatening abusive or insulting words or behaviour. 
4.	Three days later, the order was breached when he was drunk.  He was particularly abusive to a female police officer and for breach of the order he was sentenced to 12 months imprisonment.  In dismissing his appeal, the Lord Chief Justice, Lord Woolf observed that if ever there was an individual where a sentence of this sort was appropriate for this sort of conduct, it was this appellant.  
5.	On 23rd April 2003, the order was renewed at Aberdeen Sheriff’s Court in circumstances that are not clear from the material available to us.  It was then in terms that prohibited the appellant from (a) using, threatening abusive or insulting words or behaviour towards any female, (b) assaulting or attempting to assault any female (c) taking up residency in any premises in which female persons resided save with the consent of the Chief Constable of the area in which those premises were situated and (d) being drunk or under the influence of illicit drugs in any place.  Given his history, the appellant cannot have been under any misunderstanding as to the significance of this order. 
6.	Within three months, on 22nd July 2003, the appellant was cautioned by the Thames Valley police for breach of the order.  On 21st July for a further breach, the Oxford Magistrates deferred sentence.  On 4th September 2003, for two breaches, he was sentenced to a total of six months imprisonment and on 12th January 2004, for a further breach he was recalled for two months and sentenced to a further 4 months.  On 17th January 2005, a still further breach resulted in a term of 12 months imprisonment.  On 30th September 2005, following concerns about his behaviour towards two female members of staff at St Leonard’s Hostel in Reading, where the appellant was residing, he was given a final warning by the chair of the multi-agency protection panel.
7.	So we come to 11.30 pm on 8th October 2005.  The appellant was outside a public house in Reading when two women, aged between 18 and 20 approached a door supervisor to ask him to do something about the appellant saying that he had attempted to touch them up.  The door supervisor saw the appellant halfway down a queue of people waiting to enter the public house, but he did not appear to be part of the queue.  As the supervisor approached, he heard the appellant say to two females in the queue, “dirty little bitches”, “dirty little cunts” and other abusive and obscene remarks.  He appeared to be drunk. 
8.	The police were called and the appellant walked off.  He was followed using CCTV and continued to shout abusively.  He was then stopped by two police officers to whom he was aggressive with the result that he was warned about his behaviour and possible breach of section 5 of the Public Order Act and told to leave the town centre.  He did not leave and continued to be abusive; thus, he was arrested.  When in custody, his status as subject to the Sex Offender Order was established.  On interview, he accepted that he was drunk whilst in the town centre but could not recall being abusive towards anyone.  He said that he was aware of the conditions set by the Sheriff’s Court and acknowledged that he had psychological issues that needed addressing.
9.	The appellant is now 43 and has appeared before the courts on no fewer than 56 occasions over a 30 year period, the relevant details of which for present purposes we have set out.  A pre-sentence report made it clear that the appellant felt that he had done nothing wrong and was aggrieved both about the original order and the prosecution.  The writer described the appellant as having an untreatable, psychopathic anti-social and borderline personality disorder, with drug and alcohol misuse being a significant factor.  He showed a total disregard and lack of empathy for others, had no insight into his offending behaviour which he invariably denied and for which he took no personal responsibility.  He minimised his offending as being meant as a joke.  Thus the conclusion was expressed that there was a high risk of his re-offending with a very high risk of harm to the public. He tended to target more vulnerable members of the community but he posed a risk to all adults, male and female.  Such was the view of the officer (who had also had contact with the appellant outside the preparation of the report) that the imposition of the maximum sentence was recommended in order that his treatment needs might be assessed and appropriate prison treatment programmes accessed.
10.	There was also a body of medical evidence.  In 2002, a psychologist considered that the appellant was at high risk of sexually violent recidivism.   In 2004, two psychiatrists reported that he suffered from an anti-social personality disorder.  One spoke of “abnormally aggressive and seriously irresponsible conduct” and concluded that he was dangerous such that attempts at treatment should be in a high security hospital.  The other referred to “impulsive criminal behaviour, substance misuse and lack of regard for others”.  While recognising that following his release from the 9 year term, there had been no further sexual offending, save for indecent exposure while drunk, the doctor said that he was totally without insight into the nature of his difficulties and denied many of his problems.  He also suggested that further breaches of the Order should be visited with the maximum possible custodial sentence.
11.	It was in those circumstances that the learned Judge came to pass sentence.  He said that this was breach number 6 and involved the appellant being particularly offensive to two young girls and not particularly cooperative with the police.  The judge went on to sentence on the basis that it was probably abuse on his part rather than aggression and that the maximum (5 years) was not appropriate.  Giving credit for the plea of guilty, the sentence of 2 ½ years was reached.
12.	This appeal has been mounted on the basis that the sentence was manifestly excessive, notwithstanding the number of previous breaches and that there was a public interest in the matter being looked at afresh, so as to determine what could be done to minimise the risk of return to serious offending.  It was submitted that a more structured approach was required and that it was wrong to impose manifestly excessive sentences solely for the purpose of delaying the appellant’s inevitable release.
13.	When granting leave, the single judge sensibly ordered a pre-appeal report and a further medical report. Dr Teyjpal Singh, in the report to the Court said: 
“I believe that Mr Fenton presents with a very high risk of re-offending and is at risk of further violence, sexual and acquisitive offending.  He poses a risk to all adults, male, female and also to children alike.  As Mr Fenton is showing no insight into his offending behaviour, the issue of public protection merits serious consideration.”  
14.	Furthermore, the original pre-appeal report (dated 12th June 2006) identified problems that the appellant had experienced in prison and made the position crystal clear.  The writer explains:
“I am informed that Mr Fenton remains on the segregation unit at HMP Camp Hill due to his violent attitudes and uncooperative behaviour.  He has shown no intention of engaging with any offending behaviour programmes or with the Prison Service in devising any constructive sentence plan approach to addressing his offending behaviour.  I understand that he refuses to accept that he ha done anything wrong and by his general attitude and demeanour it is apparent that he deeply resents his current incarceration.  It seems that the Prison Service is simply keeping him contained.  I gather that a referral to Broadmoor Hospital for assessment with a view to transfer is currently being progressed.”  
The report concluded that the original conclusions in the Pre Sentence Report remained relevant and pertinent. 
15.	With those documents the matter came before the full court but, perhaps not surprisingly in the light of the contents of the reports, Mr Fielding applied for an adjournment to obtain a psychiatric report which had been commissioned on behalf of the appellant and a further report from a Probation Officer to address what packages might be available by way of psychiatric assistance.  To that application, the Court acceded and this further information is also available.
16.	In the psychiatric report commissioned on behalf of the appellant, Dr Wilkins entirely agreed with the conclusions drawn in the previous reports that the appellant fulfilled the criteria for anti-social personality disorder.  He also considered, however, that he might have suffered Attention Deficit Hyperactivity Disorder and suggested that he should have a trial of treatment with stimulant medication which for good reason should be in prison.  He went on to observe that further incarceration was likely to provoke further deterioration in the appellant’s behaviour increasing resentment and alienation.  He acknowledged that, in the community, individuals such as the appellant were extraordinarily difficult to manage effectively and concluded:
“I consider Mr Fenton to be a risk to the public. Whatever any trial of treatment with stimulant drugs might yield, he is someone who, particularly when intoxicated, is prone to behave in an anti-social and even aggressive manner.  This superimposed upon his underlying personality attributes make him a potential threat to the general public and women in particular. … Whether he is considered to be mentally disordered enough for admission to a special hospital remains to be seen.  Mr Fenton does not want this and this may well be a significant impediment.  However, from the point of view of public safety, I can see little end to the cycle of imprisonment, release and re-offending unless and until some solution is found to his problem or he is simply incarcerated for whatever length of time it takes for his condition to improve sufficiently to make rehabilitation in the community a viable option.” 

17.	The further report from the Probation Officer was unable to comment on psychiatric options but said that an assessment for the Broadmoor Dangerous and Severe Personality Disorder Unit was being planned on an urgent basis.  In the absence of such a transfer, the multi agency protection panel would accommodate Mr Fenton supported by a condition of residence and risk management at the highest MAPPPA level at the same hostel at which he had been residing when last arrested.  He observed however that stringent conditions would serve simply to contain and hopefully reduce the offending risk but that as the recent breaches revealed, his “risk and dangerousness is enduring and assessment reports are unhappily consistent in their pessimistic prognosis for his behaviour in the future.”  We are now told that the Unit at Broadmoor has agreed that the referral should be accepted and members of the clinical team are hoping to visit the appellant in the near future.
18.	It is against that background that we now consider the merits of this appeal. At the heart of the argument is the submission that a sentence of 2 ½ years is simply not justified for the little offence caused to the women who were abused on 8th October, let alone for the lack of co-operation with the police.  If any crime was committed, it is at the lowest end of public disorder and thus, as a matter of retributive proportion, should not attract any custodial penalty let alone one of the length passed.  What must be done, it is argued, is to find a sentence that will reduce the risk of potential re-offending rather than sentence on the basis of an assumption which might itself create a self fulfilling prophecy as the appellant further develops his grievance as to the way in which he has been treated and becomes more and more entrenched in his disorder.
19.	Mr Fielding supports his argument that the sentence is too long by reference to a number of other cases concerned with similar behaviour;  long sentences in each were supported only where the breaches were more serious because the likelihood of very much graver crime was greater.  Thus, in Brown (2002) 1 Cr App R (S) 1, an offender with six previous convictions for sexual offences was rightly sentenced to 3 years imprisonment for 3 breaches of a Sex Offenders Order when within days of his release, he had first approached a 14 year old, placing his arm over his shoulder, waved £5 at a 13 year old at a bus station and made sexual remarks to another 14 year old; he was rightly considered a very serious risk to children.  Deliberate and flagrant breaches in the form of unsupervised contact with boys was also evident in Moore (2005) 1 Cr App R (S) 101 page 575 when the sentence upon an offender who had a record of serious sexual offending against young boys and who breached the order shortly after release was reduced to 4 years imprisonment.  
20.	A good example of the circumstances in which lesser sentences have been passed is to be found in Wilcox (2003) 1 Cr App R (S) 43 when a sentence of 2 years imprisonment was reduced to 12 months for six breaches of a similar order five of which were committed after it had been varied to make compliance easier.  In that case, the order was to prohibit the offender (whose occupation was dealing with children’s party equipment) from remaining at a party after the equipment had been assembled.  It was not suggested that his breach went further than simply remaining present, on grounds said to be economic necessity:  the sentence was then described as a shot across the bows because he had treated the order with contempt rather than that he had gone further and caused alarm or distress to any child.
21.	Finally, Mr Fielding refers to Perry [2003] EWCA Crim 2489 in which a sentence of 4 years imprisonment was said to wholly excessive.  No sentence was then passed, while efforts were made to find a hostel: he had been in custody for a period which exceeded a 12 month sentence which the court observed was the longest sentence that would have been appropriate.  Again, the facts are important.  The initial order had been made upon an offender without his opposition after many convictions for indecent assault on girls and forbad him from remaining in the company of anyone under the age of 17.  The breach was committed when he was seen pushing the pram of a two year old boy:  there is no suggestion that he had ever been a danger to boys of any age.  Further, that offender had worked very hard in an effort to address his offending behaviour and the reports recommended continuation of treatment he was receiving.  
22.	The proper approach to cases of this type can be informed by a study of the decisions relating to anti social behaviour orders.  This can be ascertained by an analysis of a series of decisions of this court and, in particular, Braxton [2005] 1 Cr App R (S) 167, Boness [2005] EWCA 2395, Lamb [2005] EWCA 2487 and Stevens and Lovegrove [2006] EWCA 255.  Summarising the relevance of the maximum penalty for breach of an ASBO and the interrelation between that sentence and the maximum for the underlying criminal behaviour (assuming that the breach is, in addition, criminal conduct) in the last mentioned case, Sir Igor Judge P said: 
“26. The principle to be derived from the legislation and the authorities can, in our judgment, be readily identified. Anti-social Behaviour Order requires specific statutory criteria to be established.  In brief, the order is intended to provide protection against harassment, alarm or distress, caused by Anti-social behaviour.  It is obvious that when passing sentence for breach of an anti-social behaviour order, the court is sentencing for the offence of being in breach of that order.  Plainly, any sentence, in any court, must be proportionate or, to use the word with which all sentencers are familiar, "commensurate". Therefore, if the conduct which constitutes the breach of the Anti-social Behaviour Order is also a distinct criminal offence, and the maximum sentence for the offence is limited to, say, 6 months' imprisonment, that is a feature to be borne in mind by the sentencing court in the interests of proportionality.
27. It cannot, however, be right that the court's power is thereupon limited to the 6 months maximum imprisonment for the distinct criminal offence.  That would treat the breach as if it were a stand alone offence, which at the time when it was committed did not amount to a breach of the court order.  In reality, the breach is a distinct offence on its own right, created by statute, punishable by up to 5 years' imprisonment.  We therefore reject the submission that it was wrong in principle for the judge to have imposed a custodial sentence, where, for the instant offence of drunkenness, the maximum sentence would have been a fine.  To the extent that the submission of the appellant on this particular aspect of the appeal is supported by Morrison, we respectfully conclude that its authority has been wholly undermined.”

23.	How should the court approach sentence in such cases?  In Lamb, supra, the judgment of the court in a case presided over by Hallett LJ, the position in Braxton (when a sentence of 3 ½ years imprisonment was upheld on the basis that what the offender might have considered trivial represented repeated breaches of an ASBO that had caused real concern and distress) was contrasted with breaches that did not involve such consequences.  The matter was put in this way:
“18. The vital distinction between that case and the circumstances with which we are concerned is that albeit the deliberate and multiple flouting of the order is the same (indeed, there are more breaches of the ASBO in this case), the social impact of this appellant's offending is very much less and, indeed, did not impact on the public in any way. Save for one occasion when the appellant was drunk (without there being any suggestion that he was causing a nuisance), none of these breaches have resulted from antisocial behaviour as such. The ever longer sentences have been driven only by the determination of the court to ensure that its orders limiting the appellant's movements are not flouted.
19. We recognize that this is an important objective in itself. An order of the court must be obeyed. We do not accept, however, that being found in a place within the proscribed area without any evidence of associated antisocial behaviour deserves to be visited with a sentence as long as 22 months' detention. Where breaches do not involve harassment, alarm or distress, community penalties should be considered in order to help the offender learn to live within the terms of the ASBO to which he or she is subject. In those cases when there is no available community penalty (into which category we include this case given the appellant's refusal to *92 engage with agencies prepared to help him and the frequency of his breaches), custodial sentences which are necessary to maintain the authority of the court can be kept as short as possible. This approach is consistent with that adopted by the Court in the albeit unrelated area of shoplifting: see Page and others [2004] EWCA Crim 3358; [2005] 2 Cr.App.R.(S.) 37 (p.221) in which the Vice President spoke of the need for proportionality between the sentence and the particular offence.  ”
24.	Sentences of 22 months were reduced to 8 months but the court emphasised that such short sentences are not appropriate if the breach of the ASBO itself involves harassment alarm or distress to the public of the type that the legislation was designed to prevent.
25.	So too in relation to Sex Offender’s Orders.  If the breach does not involve any real or obvious risk to that section of the public whom it is intended should be protected by the order, a community penalty which further assists the offender to live within the terms of the order may well be appropriate although repeated breaches will necessarily involve a custodial sentence if only to demonstrate that the orders of the court are not to be ignored and cannot be broken with impunity.  Any breach which does create a real or obvious risk to those whom the order is intended to protect must inevitably be treated more seriously and multiple or repeated breaches may well justify sentences that might otherwise have been considered far higher than any specific criminal offence or misconduct would have attracted.  That, after all, is the statutory purpose behind the legislation in the first place.  
26.	Turning to the facts of this case, there are a number of features which are extremely worrying.  First, there is the multiple and repeated breaches of the order against the background that the appellant feels aggrieved that he should be subject to such restrictions notwithstanding his background of offending and does not believe that he has done anything to justify criminal sanction.  Secondly, the nature of the breaches and, in particular, the sexually offensive approach to young women while drunk, demonstrate the existence of the very risk factors that the order was designed to minimise.  Third, the recent behaviour of the appellant in custody has only served to reveal that he is not prepared to engage in the type of programme that could assist him to understand why he continues to be subject to the order, how he might modify his behaviour to live within its terms and, just as important, what he should do to obtain help if he feels himself that he is at risk of continuing to breach the order.  One of the features of those cases in which lesser sentences are justified is the willingness to seek and take the help that is available.
27.	Mr Fielding argues that the longer that the appellant remains in custody, the more damage to his personality is likely to result and that the Court should either impose a community penalty or reduce the term to permit his release.  Alternatively, a short further adjournment should be allowed to permit for his assessment by Broadmoor.  He submits, on instructions, that although the appellant has no wish to go to Broadmoor, he is willing to accept help and will co-operate.  
28.	We are not in a position to say whether the appellant should be transferred to Broadmoor and neither do we consider it appropriate to adjourn the hearing of this appeal for his suitability to be assessed: although it may be that the assessment could be conducted comparatively quickly, by the time any final decision has been made, the custodial element of this sentence will either have expired or, alternatively, will be near to expiring.  If, at that time, he is approved for transfer to this Unit, the Secretary of State can take the necessary steps.  If he is not suitable, the Probation Service will have had a little time again to try to engage with the appellant and help him to prepare for release.  It is sufficient for the purposes of this appeal to make it clear that the features of the case to which we have referred, including the appellant’s record, are such that we do not consider the breaches of the Order to be trivial or at the lowest end: a substantial custodial sentence was entirely justified.  Furthermore, notwithstanding the risks to which the medical evidence refers, his behaviour since sentence has done nothing to allay or reduce our legitimate concerns.  The term of 2½ years imprisonment was neither wrong in principle nor manifestly excessive and the appeal is dismissed.  We end only by expressing the hope that the appellant will engage with those who are seeking to help him come to terms with his undoubted difficulties and live his life so as not to give rise to a risk to others.