Sexual harm

Published date01 March 2021
Date01 March 2021
Subject MatterIn court
should not have been presented for that purpose because ASBCPA s33(5) specifies
that a court is permitted to ‘take account of conduct occurring up to one year before
the commencement date’ of the relevant part of the 2014 Act (20 October 2014).
Further, it was claimed that the CBO imposed had not been in accord with s22(4) of
the Act, specifying that the court must consider ‘that making the order will help in
preventing the offender from engaging in such behaviour’. It was suggested that the
terms of the CBO did not address B.’s underlying behaviour and would not assist in
preventing him from engaging in such behaviour in the future.
The Court of Appeal accepted that the judge had not appreciated the ‘one year’
rule but had clearly been entitled to conclude on the basis of the post-October 2013
material that, ‘assuming that appropriate prohibitions could be identified, it was
appropriate in principle to make a CBO’, adding:
It is artificial in the context of criminal behaviour of the type in question simply to look at
the individual dates of the offending. The conduct here was all part of an ongoing and
continuous pattern. ...the court was always going to be entitled to take account of the
broader historical background as context for assessing [B.’s conduct within the permis-
sible statutory period].
It would be wrong to ‘point to the breaches in 2018 as justification for the CBO
being imposed in the first place’ but, on the basis of the information properly for
consideration, the judge in 2015 had been right in principle to impose a CBO.
Section 22(4) had been properly applied. However, Prohibition 1 had been too
widely drafted. ‘The use of social networking sites ingrained in society and is a
part of normal societal intercourse.’ The terms were thus amended to prevent:
‘Access or use any internet-based dating or social networking sites, the latter save
for employment-related purposes’. As regards prohibitions against him making
unlawful use of other person’s bank cards etc, the Court observed that ‘as a matter
of principle, prohibitions should not be imposed in relation to conduct which would
constitute a criminal offence on its own merits’, and those prohibitions were there-
fore quashed. Given that B. has shown no remorse, ‘remains a menace to women’
and continued to pose a significant risk of committing identical fraud offences, an
indefinite duration CBO had been entirely justified. As for the 2019 sentence, this
had been ‘severe’ but, given the aggravating factors, it could not be deemed
manifestly excessive.
R v BRAIN, [2020] 2 Cr App R(S) 34.
Sexual harm
Teacher’s infatuation: Delayed prosecution
A teaching assistant/learning facilitator at a specialist school for vulnerable chil-
dren, B-M became infatuated with a 15 year-old boy (V.) she supported there.
When another staff member joked with him about being B-M’s favourite pupil, V.
showed him text messages from B-M on his phone, one referring to arrangements for
130 Probation Journal 68(1)

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