Paul Fettig [2019] EWCA Crim 1421

Paul Fettig [2019] EWCA Crim 1421 concerned a renewed application for leave to appeal against sentence before the Court of Appeal (Lord Justice Males, Mr Justice Jay and Mr Justice Edis). The application was refused and a loss of time order was made.

On 28th November 2018 at Manchester (Minshull Street) Crown Court the applicant had pleaded guilty to two offences of failing to comply with notification requirements contrary to section 91(1)(a) of the Sexual Offences Act 2003. He was sentenced to a total term of twenty months’ imprisonment. Various ancillary orders were also made. The single judge had refused leave to appeal and the applicant required an extension of time to renew his application.

The notification requirements had been imposed in Scotland on 21st November 2017 following the applicant’s conviction for possessing indecent images of children and extreme pornographic images. On 16th October 2018 police discovered that the applicant was living with a woman, Ms L, who had a young daughter born in January 2018 to whom the applicant was the father. In addition Ms L’s fourteen-year-old daughter was also living at the property. The applicant was therefore in breach of the notification requirements in two respects. The fourteen-year-old child was highly vulnerable, having a diagnosis of autistic spectrum disorder.

The sentencing judge proceeded on the basis that the applicant had committed these offences over an extensive period. They involved a high degree of manipulation and deception. The applicant posed a high risk to children and had posed a very high risk of serious harm or distress to the partner’s child.

The ground of appeal was that the judge had departed from the appropriate starting point in the absence of evidence of very serious harm or any risk of it.

The court considered the ground in the light of the Sentencing Council’s Breach Offences Guideline and the single judge’s detailed reasons for refusing leave. The court entirely concurred with the single judge’s conclusion that this was a category 1A offence under the guideline. Culpability was in category A because there had been a long period of non-compliance and persistent attempts to avoid detection. The applicant had also ignored warnings not to live at the property. The level of harm was in category 1 because there was a risk of very serious harm. What was particularly relevant was the applicant’s previous offences of possessing indecent images of girls of similar age. The starting point for one offence was two years’ custody, with a category range of one to four years. The judge’s adjusted starting point must have been thirty months’ imprisonment before credit for the guilty pleas, which was well within the range.

The court endorsed the single judge’s reasons, which it did not consider it necessary to repeat, and refused the application for leave to appeal. In short, the court found the renewed application wholly without merit, agreeing with the single judge that the appeal was not remotely arguable, and made a loss of time order of twenty-eight days.