Love, R. v

Factual and Procedural Background

On 9 July 2018, the victim, a 25-year-old woman, was walking along a public trail in The City when the appellant approached and committed a sexual assault by forcibly lifting her skirt and pulling down her underwear. The victim was terrified and sought help from a member of the public who contacted the police. The appellant was identified through police investigation and CCTV footage and was arrested on 6 September 2018. He made admissions in interview acknowledging the assault but denied sexual motivation.

The appellant pleaded guilty before magistrates on 7 September 2018 and was committed for sentence. On 25 January 2019, at the Crown Court, the appellant was sentenced to two years and eight months' imprisonment and a victim surcharge. The court adjourned to consider the terms of a Sexual Harm Prevention Order (SHPO). On 14 February 2019, the SHPO was imposed with terms restricting the appellant's access to public footpaths and requiring him to wear a GPS monitoring device. The appellant appealed against the SHPO with leave granted by a single judge.

Legal Issues Presented

1. Whether the Sexual Harm Prevention Order imposed was necessary and proportionate under section 103A(2)(b) of the Sexual Offences Act 2003.
2. Whether the terms of the SHPO, including restrictions on access to public footpaths and the imposition of a GPS monitoring device, were clear, realistic, and capable of enforcement.
3. Whether the GPS monitoring component of the order was manifestly excessive given the circumstances of the offence and the appellant's risk profile.

Arguments of the Parties

Appellant's Arguments

• The SHPO was contrary to principle and manifestly excessive.
• The necessity test under section 103A(2)(b) of the Sexual Offences Act 2003 was not met, as the order failed to balance necessity against proportionality.
• The order lacked clarity, particularly regarding the restriction on entering public footpaths, which might require the appellant to determine what constitutes a public footpath before travelling.
• The GPS monitoring requirement was unusual, unprecedented in similar cases, and unclear in its purpose and application.
• The order was oppressive in the context of a single, opportunistic offence and considering other orders the appellant would face on release.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the seriousness of the sexual assault, noting the victim's trauma and the appellant's own admissions indicating sexual motivation. The appellant's history of impulsivity and escalating offending towards women supported a high risk of reoffending assessment. The court found that the necessity hurdle for imposing a Sexual Harm Prevention Order was met, particularly given the appellant’s conduct of following the victim to a secluded area before the assault.

Regarding proportionality and oppression, the court noted the sentencing judge's careful consideration and narrowing of the order's terms from those initially sought by the prosecution. The court found that the restriction on entering certain public footpaths was clear, realistic, and not oppressive, as it did not impede the appellant’s reasonable movements and could be managed through court review if his circumstances changed.

However, the court found the GPS monitoring requirement, imposed for a statutory maximum period of five years, to be manifestly excessive. The Crown's original application for a shorter GPS monitoring period was conceded to be outside the statutory framework, raising proportionality concerns that were not alleviated by further consideration. Consequently, the court held that the GPS component of the order was not justified given the facts and other orders applicable to the appellant.

Holding and Implications

The appeal was ALLOWED solely to the extent of quashing the GPS monitoring element of the Sexual Harm Prevention Order. The remainder of the order, specifically the restriction on entering public footpaths, was upheld and the appeal was DISMISSED in that respect.

The direct effect is that the appellant remains subject to the footpath restriction but is no longer required to comply with the GPS monitoring device condition. No new precedent was established beyond the application of established principles regarding the necessity, proportionality, and clarity of Sexual Harm Prevention Orders.