Nathaniel Bricknell [2019] EWCA Crim 1460

Nathaniel Bricknell [2019] EWCA Crim 1460 was an appeal before Lord Justice Holroyde, Mr Justice Julian Knowles and Sir John Royce against sentences totalling 12 months’ imprisonment for three offences of failing to comply with notification requirements contrary to section 91 of the Sexual Offences Act 2003. The Court of Appeal dismissed the appeal.

Mr Bricknell, aged 35, pleaded guilty in the magistrates’ court to three offences and was committed for sentence to the Crown Court at Basildon. On 16 May 2019 he was sentenced to concurrent terms of 12 months’ imprisonment on each count. He had become subject indefinitely to the notification requirements in June 2009 when he received an extended sentence of five years’ custody with a three-year extension period for rape. The requirements obliged him to report to the police within three days if he stayed for 12 hours or more in a household which included someone under 18, to notify any address at which he stayed for seven days or more within a 12-month period, and to notify any new bank account.

In February 2017 Mr Bricknell had been sentenced to eight weeks’ imprisonment suspended for 12 months for failing to comply with the notification requirements. That offence involved forming a relationship with a woman who had two young children and failing to notify the police that he had stayed with her when the children were present over a period of about three weeks.

The present offending began in late November 2018, only about nine months after the suspended sentence had expired. Mr Bricknell was working as a personal trainer using the name Nathan Peters. The police were aware of this and had advised him to work only in a gym and not to have female clients. Through a client he met Ms Flack, who lived with her two children aged 10 and one, and who was also the mother of an adult child. She began using his services as a personal trainer and a relationship quickly developed. Mr Bricknell was not obliged to tell Ms Flack about his previous convictions and did not do so. He became in effect part of her family and got on well with the children. On one occasion he was briefly left alone in the house with the youngest child. Ms Flack made clear she never witnessed or suspected anything untoward but was very distressed when she was alerted to the appellant’s true identity and learned of his rape conviction through internet research. She ended the relationship immediately. Mr Bricknell was very apologetic and made immediate admissions when questioned by the police.

Over a period of three months Mr Bricknell stayed overnight at Ms Flack’s house on 28 occasions, none of which was notified to the police. On all but three of those occasions the two younger children were also in the house. He was there continuously for seven days over the Christmas period. Mr Bricknell also told the police that he had opened a bank account into which he could pay the fees he earned as Nathan Peters, which he knew he should have disclosed but said he had forgotten to do so. That offence dated back to 4 August 2018, even closer in time to the expiration of the previous suspended sentence. The various failures to notify had therefore extended over a period of more than six months.

The first charge related to his staying on numerous occasions for more than 12 hours at an address where children were living. The second related to his staying at that address for more than seven days. The third related to his failure to notify the bank account. At the sentencing hearing a pre-sentence report was available which recorded, but did not accept, Mr Bricknell’s assertion that he had not appreciated the seriousness of his failures of notification. The reporting probation officer assessed him as highly likely to commit further similar offences with a high risk of causing sexual or emotional harm but as suitable for a community order with a number of requirements.

The judge considered the Sentencing Council’s definitive guideline for such offences. She assessed the offences as falling into category A culpability because both factors mentioned in the guideline were in her view present, namely determined attempts to avoid detection and long period of non-compliance. She accepted that Mr Bricknell had neither caused nor risked very serious harm or distress and therefore assessed the harm as falling into category 2. Accordingly she put the case into category A2, for which the guideline indicates a starting point of one year and a sentencing range from 26 weeks to two years’ imprisonment. The judge rejected a submission that it should instead be categorised as a B2 offence, involving no more than a deliberate failure to comply with a requirement, for which the guideline indicates a starting point of 36 weeks’ custody and a range from 26 weeks to 18 months. She referred to the aggravating feature of the previous offending and concluded that the appropriate sentence after trial would be a total of 18 months, which she reduced to 12 months giving full credit for the prompt guilty pleas. She said that in all the circumstances she was unable to suspend the term of imprisonment.

Mr Patience on behalf of Mr Bricknell submitted that the judge was wrong to put the case into category A culpability. There was no evidential basis for finding that Mr Bricknell had made determined attempts to avoid detection. He further argued that the period of time over which the failures to notify occurred could not properly be regarded as a long period of non-compliance. In any event the judge took too high a notional sentence after trial because she failed to give sufficient weight to the substantial degree of overlap between the three offences. He emphasised that the offence lies in failing to notify specified matters to the police, not in failing to tell everything to his new partner. He submitted that notwithstanding the first offence in time, the failure to notify the new bank account, it would be artificial to treat the offending as having continued over a period in excess of six months. The real gravamen of the charges was covered by the three-month period when Mr Bricknell was repeatedly staying over at Ms Flack’s house. Mr Patience further submitted that the judge gave insufficient attention to the fact that there had been a lengthy period of compliance with the requirements before the 2017 conviction and failed to give sufficient weight to the various matters of personal mitigation. He argued by reference to the Sentencing Council’s Imposition Guideline that none of the factors pointing to an immediate sentence was applicable and that on the contrary a number of factors favouring a suspended sentence were applicable.

Mr Hewitt for the respondent confirmed very fairly that the prosecution did not contend in the court below that this was a case of determined attempts to avoid detection. He submitted that the phrase “long period of non-compliance” would require consideration of the facts and circumstances of each individual case.

The Court of Appeal agreed that this was not a case in which Mr Bricknell could be said to have made determined attempts to avoid detection. The fact that the prosecution had not put that factor forward as being applicable was not conclusive, but the court noted that the judge did not identify in her sentencing remarks any particular basis on which she made the finding. As to whether there was a long period of non-compliance, the court acknowledged Mr Patience’s point that some offences involve non-compliance over much longer periods. However, in those circumstances the sentencer would be fully entitled to make an upward adjustment from the guideline starting point to reflect the particular length of the period of non-compliance. The first failure to notify occurred in August and the series of more serious failures occurred between November and February. The court agreed with the prosecution that the period of non-compliance was properly to be regarded as one of more than six months. The first offence relating to the bank account was not the most serious example of a failure to notify, but it indicated an attitude on the part of Mr Bricknell towards compliance with the notification requirements, an attitude moreover which he had displayed despite the crystal clear warning given to him by the suspended sentence imposed when he previously failed to comply with his requirements. Without seeking to define the parameters of “a long period” in this context, the court concluded that it was open to the judge to find that that factor was indeed present in the circumstances of this case. However, even if the judge had not made that finding, the court had no doubt that the period of time during which Mr Bricknell was failing to comply would alternatively have been a serious aggravating feature of a category B offence meriting a significant increase above the starting point.

The court agreed with Mr Patience’s submission that there was a significant degree of overlap between the three offences and that the offence relating to the bank account was a comparatively minor offence of its kind, bearing in mind that the police were already aware that Mr Bricknell was using a different name for the purposes of carrying on business as a personal trainer. The court also accepted that there were a number of matters of personal mitigation which he was able to pray in aid. However, the seriousness of the offending after the first offence in August lay in the continuation over a period of about three months of visits to the home in which children were living, extending over days at a time, none of which were notified to the police as they should have been.

The offending was significantly aggravated by the comparatively recent previous conviction for very similar offending. In all the circumstances a total sentence of 18 months’ imprisonment before giving credit for guilty pleas was within the range which was properly opened to the judge. Having regard in particular to the aggravating feature of the comparatively recent previous conviction, the judge was entitled to conclude that in the circumstances of this case appropriate punishment could only be achieved by immediate custody, that being one of the factors specifically identified in the Imposition Guideline. In short, the total sentence imposed, albeit a stiff one and perhaps high in the range open to the judge, was not manifestly excessive, and the appeal was dismissed.