Brain, R. v

Factual and Procedural Background

This opinion concerns the appeal of the Appellant against a two-year imprisonment sentence imposed in 2019 for two breaches of a Criminal Behaviour Order ("CBO") originally made in 2016. The 2016 CBO was part of a sentence imposed for multiple offences of theft and fraud. The 2019 appeal was initially adjourned to allow the Appellant to seek permission and an extension of time to appeal the terms of the CBO. This hearing combines the appeal against the 2019 sentence and the application for leave to appeal the 2016 sentence regarding the CBO's imposition, terms, and duration.

Between 2012 and 2015, the Appellant used social media and dating websites to form relationships with women under false pretenses, including a fabricated military background and personal hardships, to deceive them into providing money and goods. The Appellant engaged in a pattern of grooming multiple victims simultaneously, exploiting their vulnerabilities, and committing theft and fraud. Several victims were elderly or vulnerable women, and the total value obtained exceeded £40,000.

In 2016, the Appellant pleaded guilty to multiple offences of fraud and theft and was sentenced to four years' imprisonment, with a CBO imposed for an indefinite period containing nine prohibitions targeting his offending behaviour. The prohibitions included bans on using internet dating and social networking sites, possession of military uniforms or paraphernalia to which he was not entitled, and false claims in employment applications.

Following release in 2018, the Appellant breached the CBO by creating false social media profiles and falsely holding himself out as an ex-Special Forces serviceman, leading to the 2019 sentence of two years' custody after pleading guilty to two breaches of the CBO.

Legal Issues Presented

1. Whether the imposition of the CBO in 2016 was justified in principle given the nature and timing of the Appellant's conduct.
2. Whether the terms and duration of the CBO were appropriate, proportionate, and sufficiently specific.
3. Whether the 2019 sentence for breach of the CBO was manifestly excessive, particularly regarding alleged double counting of aggravating factors.

Arguments of the Parties

Appellant's Arguments

• The imposition of the CBO was wrong in principle as it did not effectively address or prevent the underlying behaviour.
• The information relied upon by the court in 2016 was flawed, containing conduct outside the permissible timeframe and irrelevant convictions.
• The terms of the CBO were inappropriately drafted, particularly the broad prohibition on social networking sites.
• The CBO should have been for a fixed period, not indefinite, given the wide-ranging prohibitions.
• The 2019 sentence was manifestly excessive due to double or triple counting of aggravating features, especially previous convictions.

Respondent's Arguments

• While conceding that only conduct within one year prior to the 2014 Act commencement could be considered, there was sufficient conduct to justify the CBO.
• The CBO's strict prohibitions and indefinite duration were necessary given the Appellant's callous, repeated, and rehearsed deceitful behaviour.
• The terms of the CBO were appropriate and targeted the Appellant's offending behaviour.
• The 2019 sentence was justified and proportionate considering the seriousness, persistence, and timing of the breaches.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework of the 2014 Act, emphasizing the two conditions for imposing a CBO: conduct causing or likely to cause harassment, alarm or distress, and the order’s utility in preventing such behaviour.

The court acknowledged that only conduct within one year before the 2014 Act’s commencement was directly relevant. Although the sentencing judge erroneously considered conduct predating this period without proper enquiry, the court found sufficient post-commencement conduct to justify the CBO in principle. The offending was part of a continuous pattern, so the broader historical context was relevant for assessing the conduct within the relevant period.

Regarding the terms of the CBO, the court found the blanket prohibition on social networking sites overly broad as it could inhibit employment prospects. It allowed a variation permitting social networking for employment-related purposes while maintaining an absolute ban on internet dating sites. Prohibitions related to monitoring internet device usage and restrictions on military paraphernalia were upheld as proportionate and necessary given the Appellant's modus operandi.

The court quashed prohibitions that duplicated existing criminal offences concerning possession and use of others’ bank cards and false claims in employment applications, reasoning that prohibitions should not cover conduct already criminalized.

On duration, the court agreed with the indefinite period given the Appellant’s ongoing risk and lack of remorse, noting the possibility of future variation or discharge applications.

Regarding the 2019 sentence for breaching the CBO, the court found no manifest error in categorizing the offences as very serious (Category A1) without relying on previous convictions for that categorization. It concluded that elevating the sentence above the starting point of two years was justified by multiple aggravating factors, including the timing of the breaches immediately after release and a history of non-compliance with court orders. The final two-year sentence was not manifestly excessive.

Holding and Implications

The court granted leave and an extension of time to appeal the 2016 sentence.

The appeal against the imposition of the CBO was DISMISSED IN PRINCIPLE, but the court allowed the appeal to the limited extent of varying Prohibition 1 to permit social networking site use for employment purposes and quashing Prohibitions 7, 8, and 9 as redundant.

The appeal against the 2019 sentence was DISMISSED, affirming the two-year custodial sentence.

The decision directly affects the parties by modifying the CBO terms and upholding the sentence but does not establish new legal precedent beyond application of existing principles concerning CBOs and sentencing for breaches.