England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL

CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th January 2008

1. MR JUSTICE BURTON: The appellant, Mr Paul Leonard Healey, who is 48 years of age, pleaded guilty on 22nd August 2007 at the Crown Court at Leeds to one count of exposure and, on 17th October 2007, he was sentenced by HHJ Taylor to an extended sentence of two years pursuant to section 227 of the Criminal Justice Act 2003, consisting of a custodial term of 12 months' imprisonment and an extension period, that is an extended period of licence, of 12 months, with 148 days on remand to count towards sentence.
2. The appeal for which the appellant has been given leave by the Single Judge relates only to the imposition of the extended sentence, that is that after serving the 12 months' imprisonment he will be at risk of recall under licence and/or will have the benefit of supervision under licence, that is from the positive and negative point of view, for a further 12 months. Section 227 of the Act is only available, but becomes automatically available, if there is a conclusion by the sentencing judge that there is a risk of serious harm as a result of the commission of further offences by an appellant who has been convicted of, or pleaded guilty to, a specified offence. Exposure is such a specified offence.
3. The significant context of this case is that the appellant has a considerable record of previous convictions for this very offence. He has a total of 15 previous convictions on ten different occasions but the relevant offences relate to exposure. He has nine previous convictions for exposure. Some of those occurred in a period which was a very long time ago at the beginning of the 1980s but, in the period 2005 and 2006, he has been involved, as a result of which convictions have followed, in a number, a continuing number, of similar matters all relating to exposure. On 21st December 2005, he was sentenced in respect of three offences of exposure to a total period of imprisonment of nine months, and a Sexual Offences Prevention Order prohibiting him from remaining within 250 yards of a school for the duration of ten years was imposed on him. All these three offences were committed whilst he was on bail in respect of another matter. He served those sentences of imprisonment, or at any rate that part of it which he was required to serve, and it would seem that, almost immediately after his release from imprisonment, he was in the same trouble again and he was sentenced on 21st July 2006 at St Albans Crown Court for a further sentence of exposure for which he was given a period of imprisonment of 12 months. That was the fourth such offence in a relatively short period and this matter, with which we are now dealing and with which HHJ Taylor dealt below, is the fifth such offence and this was committed whilst he was on licence in respect of the fourth.
4. The facts are that, on the evening of 11th March 2007, he was on a train travelling to Leeds when he opened his trousers, exposed his penis and began to masturbate in front of one of the lady witnesses. Another woman sitting next to her also saw this and both concluded that the conduct of the appellant was being directed at them. They were both shocked and disturbed. They moved to other seats facing in the opposite direction but they were still able to see in the reflection of the window what the appellant was doing and he masturbated for about five minutes. They were sufficiently shocked and upset to inform a guard when they got off the train and the appellant was arrested.
5. When interviewed, the appellant said that he had been feeling depressed and had taken a considerable amount of alcohol and 50 Paracetamol tablets, with the implication that this was an unsuccessful attempt to take his own life. He had, he said, significantly, no recollection of what took place on the train. He pleaded guilty, as we have indicated, and the learned judge in sentencing had the benefit of reading a pre-sentence report. There was no psychiatric option being offered to the learned judge. That pre-sentence report was a very full one and in many ways a very sensitive one. It referred to the previous convictions and explained the background to the three counts of exposure which had led to the first sentence of imprisonment, which were, it seems, committed in the sight of children, two of them occurring outside a school where they were witnessed by seven teenage girls and the other witnessed by two teenage girls of 13 and 15, two shop assistants and a mother with her young daughter.
6. The probation officer records that, when questioned in relation to his past offences, he either could not remember them or stated that they were pinned on him and he had not done them. The probation officer, not surprisingly, indicated that it was concerning that the appellant continued to offend in similar ways and claimed to have no knowledge of the offences. The probation officer also recorded that he did not view any psychiatric problems to be severe but that it was the appellant who viewed them be severe. The assessment of the probation officer was that the appellant posed a high risk of harm to the public and to children, that his risk of reoffending was high, that it was concerning that he imported no knowledge of committing the offences and, as the probation officer said:

"If Mr Healey does not accept his behaviour, then it is unlikely that he will be able to address it and change the triggers that result in him offending.

It is clear that Mr Healey's behaviour deteriorates when he consumes alcohol to excess, and although he states he intends to control his consumption upon release, I have witnessed how quickly he returns to excessive consumption when in the community."

7. The recommendation by the officer was that the learned judge should consider imposing an extended sentence. He noted that he did not consider that Mr Healey would be able to cope with the demands of a community order, that upon release Mr Healey was likely to return to alcohol misuse and that in order to manage his risk in the community time was needed to arrange hostel and supported housing accommodation, mental health care and alcohol misuse services, without which he would be at risk of offending. He suggested a period of extended licence would be aimed at addressing the risk posed by the appellant and would benefit the appellant by addressing his accommodation issues, allowing him the opportunity to rebuild his life and settle himself and develop long term goals.
8. Of course, the recommendation by the probation officer was a matter that could only arise if there was jurisdiction to impose an extended licence, and the views of the probation officer as to the high risk of harm, helpful as they always are when set out in a professional report, could not be determinative; the decision was one for the learned judge in the light of all the evidence. The evidence he had included, of course, that pre-sentence report and, in particular in this case, the previous convictions and the circumstances of the instant offence, including the fact that the appellant was unable to give any account for it. The learned judged concluded that the appellant posed a significant risk of serious harm to the public and he imposed the extended sentence in accordance with the proposal in the pre-sentence report, having considered the psychiatric report which was before him.
9. The basis of the appeal brought by Mr Jacobs on the appellant's behalf, for which we have indicated leave was given, was, although a number of grounds are set out in the grounds of appeal, that the learned judge erred in concluding that there was a risk of serious harm. Mr Jacobs has referred us to a number of authorities primarily arising or built round the seminal decision of R v Lang [2006] 2 Cr.App.R(S) 3, [2005] EWCA Crim 2864, and a number of other examples of decisions by this court, to which, of course, must be added the further authoritative decision of this court of R v Johnson and Ors [2006] EWCA Crim 2486.
10. It is from those authorities capable of being determined: (1) that there must be not only a high risk of harm or a risk of harm but that there must be a risk of serious harm; (2) that the fact that such harm has not happened in the instant offence or in the past does not mean that there is not a risk of it for the future; (3) that the fact that there is a Sexual Offences Prevention Order in place may be a relevant factor in considering whether there is a continuing risk: (4) that the learned sentencing judge is the judge who must make up his mind in the light of the evidence and upon the evidence and, quoting Johnson at paragraph 11(i), per the President of the Queen's Bench Division:

"... where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it."

In those circumstances, Mr Jacobs seeks to show us that the learned judge was unreasonable in concluding here that there was a risk of serious harm. It is noteworthy, of course, that this offence itself, one of exposure, is a specified offence and therefore it cannot be said, even if it were on the basis of Mr Jacobs' argument supportable, that exposure is not such a serious offence as can lead to serious harm. There must be and will therefore be cases in which such a statutory assumption will apply and the learned judge plainly thought that this was such a case, and hence his conclusion.

11. It is plainly the case that this kind of offence can cause serious psychological harm. It is right, as Mr Jacobs points out, that there was no evidence that the two ladies who were the witnesses of this particular offence did suffer any such harm, although they were both shocked and distressed. But the past history of this appellant shows that, as the probation officer recognised, his offending has not been limited to adults who may or may not have the strength of character to be able to be unaffected by what they see, but has been carried out in the presence of children on a number of occasions. Particularly in the light of his own reaction to both his past offences and the present offences, that he is not able either to remember or to give a sufficient explanation, it is certainly clear to this court that it cannot be guaranteed, far from it, that the existence, as Mr Jacobs submits, of the Sexual Offences Prevention Order in this case will at least prevent him from carrying out this kind of conduct in front of children. As was suggested to us, it is plain that there is a risk that that will take place, notwithstanding the order, in front of children in the future, as indeed the probation officer concluded.
12. We are wholly unpersuaded that there is any basis on which we can say that the learned judge did not have the evidence and/or was in any way unreasonable in reaching a conclusion here that there was jurisdiction to impose the order he did and that there was no basis for disapplying the statutory presumption that it was, in the light of the high risk of serious harm to others, appropriate that there was a requirement to impose at least an extended sentence, which is what the learned judge did. We consequently dismiss this appeal.