Neil David Thursby [2019] EWCA Crim 958
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Regina v Neil David Thursby [2019] EWCA Crim 958 was an appeal against sentence heard by the Court of Appeal (Criminal Division) which dismissed the appeal notwithstanding that the judge below may not have expressly applied the relevant guideline.
On 18th February 2019 in the Crown Court at Oxford, following committal for sentence, Mr Thursby was sentenced to a total of fifteen months’ imprisonment comprising six months for breach of a Sexual Harm Prevention Order, six months concurrent for failing to comply with notification requirements, and activation in full of a nine-month suspended sentence to run consecutively.
On 15th December 2016 Mr Thursby had been sentenced to nine months’ imprisonment suspended for 24 months for making indecent images of children, with requirements to participate in an internet sex offender treatment programme and up to 25 rehabilitation activity requirement sessions. Automatic notification requirements applied for a default period of ten years, and he was made subject to a Sexual Harm Prevention Order without limit of time, which had the effect of making the notification requirements apply indefinitely unless and until the order was revoked. In late January 2018 Mr Thursby changed his mobile telephone number, rendering him uncontactable by supervising officers. The Sexual Harm Prevention Order required him to notify the Public Protection Officer within three days of coming into possession of a smartphone or other device capable of accessing the internet. On 3rd February 2018 a police officer spoke with him and he lied, stating that his mobile phone had been stolen and that he had not yet replaced it but would notify the police when he did so. In fact he already possessed a new handset and number and did not contact the police. He was arrested on 22nd March 2018 in possession of two mobile phones which he had failed to notify. He was then living in a youth hostel in Oxford but on release from police custody was not permitted to return there. He gave his address as Central Backpackers in Oxford, where he stayed until April 2018 but not thereafter. By September 2018 he had still not notified the police of his change of address. He was arrested on 27th September 2018 and told the police he was sleeping rough outside a gym where he could wash himself and his clothes. No explanation was advanced for his failure to comply with either the Sexual Harm Prevention Order or the notification requirements, and the only sensible conclusion was that he no longer accepted the need to comply. No improper material was found on his mobile phones and his breaches had led to no harm to any other person. The appellant had completed the internet sex offender programme and the one-to-one offending behaviour work as part of the rehabilitation activity requirement, and his response to supervision was described as satisfactory. On 29th October 2018, towards the end of the two-year suspended sentence, he had been dealt with for breach of the requirements concerning failure to keep an appointment, for which five further rehabilitation activity requirement sessions were imposed. There had been no repetition of the original offending.
The judge below imposed six months’ imprisonment concurrent for the two new offences after allowing full credit for guilty pleas and applying the definitive guideline for breach offences. No complaint was made as to those sentences. The judge activated the suspended sentence in full to run consecutively, having regard to the principle of totality. The new offences had been committed in the third and final quarters of the two-year term of the suspended sentence.
Miss Turudija-Austin, on behalf of Mr Thursby, challenged the activation of the suspended sentence in full.
The court considered the sentencing guidelines for breach offences, which also assisted as to the approach to sentence for breach of a suspended sentence on conviction for further offences. The first consideration was the nature of the new offences, divided into four descending categories. It was not apparent from the transcripts that the judge had been referred to the guideline for breach of a suspended sentence order, and the guideline was not referred to in the sentencing remarks. The judge was entitled to conclude that the case fell into the first category of multiple new offences, as there were two offences different in time and nature. In those circumstances the guidelines indicated that the appropriate penalty was full activation of the original custodial term. The judge was entitled in principle to activate the suspended sentence in full and had in mind the total sentence. The judge could have imposed consecutive sentences for each of the new offences. The total term of fifteen months was stern but not manifestly excessive. Since the judge did not expressly apply the guideline, the court also considered the alternative that the case came within the second category of new offence similar in type and gravity to the offence for which the suspended sentence was imposed. The Sexual Harm Prevention Order and notification requirements were there to help prevent repetition of the original offending. The guideline provided that where the second category applied and where there had been medium to high level compliance with the suspended sentence order, the penalty to be considered was activation but with appropriate reduction to the original custodial term, taking into account any unpaid work or curfew requirements completed and, the court added, any other completed requirement such as those in this case. Considered in this way, the suspended sentence should have been activated as to six months only. However, this did not ultimately assist Mr Thursby because the judge did have in mind totality when imposing concurrent sentences for the two new offences. In principle consecutive sentences would not have been open to challenge, although the individual terms would have been shorter. Had the judge imposed consecutive terms for the new offences of, say, six months and three months respectively, and then activated the suspended sentence reduced to six months, the total sentence would have been the same and there would have been no arguable appeal.
In short, the appeal was dismissed because although the judge may not have expressly applied the guideline, the total sentence of fifteen months remained appropriate whether viewed as full activation for multiple offences or as reduced activation with consecutive sentences for the new offences.