Neil David Thursby [2019] EWCA Crim 958

The appellant was sentenced in 2016 to a suspended sentence for making indecent images of children and a Sexual Harm Prevention Order without limit of time was made. It is unlikely that an indefinite order would now be made following subsequent guidance from the Court of Appeal. He subsequently breached the SHPO and was sentenced to 6 months imprisonment with 6 months concurrent for failing to comply with notification requirements. The suspended sentence of 9 months was activated in full and ordered to run consecutively making a total of 15 months imprisonment.

The appellant had changed his mobile phone and number and failed to notify the police in accordance with his SHPO, in fact he lied to them and said he had not yet obtained a new phone following the theft of his old one. The appellant was homeless from April to his arrest in September and failed to notify the police. No improper material was found on his phone and no harm caused to any other person.

The issue on appeal was the activation in full of the suspended sentence, the new offending taking place in the third and final quarters of the operational period, he had completed the internet sex offender programme and the rehabilitation activity requirement days.

Held: this case fell in the second category “new offence similar in type and gravity to offence for which suspended sentence was imposed”, where there has been medium to high level compliance the penalty to be considered is to apply an appropriate reduction taking into account the work completed. The suspended sentence should have been activated as to 6 months only but ultimately this does not assist the appellant. As the judge had totality in mind he imposed concurrent sentences for the new offending and, in principle, consecutive sentences would not have been open to challenge although the individual terms would have been shorter. Had he imposed consecutive terms of 3 and 6 months and then activated the suspended sentence reduced to 6 months the overall term would have been the same. The appeal was dismissed.