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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> J, R. v [2008] EWCA Crim 2002 (15 August 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2002.html
Cite as: (2008) 172 JP 513, [2008] EWCA Crim 2002, (2008) 172 JPN 742
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CRIMINAL DIVISION
Royal Courts of Justice Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW SMITH
MR JUSTICE BEAN
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- MR JUSTICE BEAN: On 28th January 2008, at the Crown Court at Caernarfon, following a trial before Mr Recorder Wyn Lloyd Jones and a jury, the appellant was convicted of exposure. The victim who witnessed the exposure was his next door neighbour. In order that her identity should be protected, as the Sexual Offences (Amendment) Act 1992 requires, we will not give her name in this judgment and we draw the attention of anyone hearing or reading this judgment to the prohibition on identifying the victim of a sexual offence of this kind.
- On 5th March 2008, at the Mold Crown Court, the appellant was sentenced to a community order with requirements of supervision for two years, 150 hours of unpaid work, a prohibited activity requirement and an exclusion requirement. It is the last two requirements which are the subject of his appeal to this court and for which he has been given leave by the Single Judge. He was also required to comply with the notification provisions of the Sexual Offences Act 2003, commonly known as the sex offenders register; no point arises on that in this court, nor on the orders for supervision and unpaid work.
- The terms of the exclusion order were that he was not to enter his own home for two years. The terms of the prohibited activity requirement were that he must not approach nor communicate directly or indirectly with the complainant, her partner or her very young daughter.
- One morning in September 2007, the complainant was at home with her 19-month old daughter. Her partner had already left for work. She and her daughter were in the kitchen of her home and the layout of the property was such that the kitchen window looked out directly on to the driveway of the appellant's home next door. The distance involved was no more than five metres. The appellant was in the driveway of his home with cleaning materials in his hand to clean his car. Both the complainant and her daughter waved at him. He waved back. A few minutes later, the complainant noticed that her daughter was waving through the window again. She looked out and saw that the appellant was masturbating and was looking directly at her. She was shocked and amazed. She looked away and contacted the police. The incident left her shocked and scared as she had only moved into the house about four weeks prior to the incident. It left her feeling afraid of living in her own home.
- The appellant was arrested some two weeks later and totally denied the allegations. He maintained that denial at the trial but the jury did not believe him. It is significant, in our view, to note that by the time of the trial, which was some four months after the incident complained of, there had been no further incidents nor indeed by the time of sentence some five weeks after that.
- The learned Recorder observed that, fortunately, the complainant's daughter was too young to know what was going on but the complainant herself had been caused a great deal of distress and the appellant had intended that she should be caused distress. The complainant certainly seems to have taken the matter very badly. In her victim impact statement it was said that she was shocked and scared of living in her new home. She was an emotional wreck on the day of the incident and over the next few days she was a complete shambles, unable to sleep and it had taken her some weeks to regain her confidence and to return to some semblance of normality.
- The Recorder said that the victim did not decide the sentence but the effect of the crime on her had to be taken into account. He wanted to ensure that she and her family could return to normality. He decided that it would be commensurate with the seriousness of the case to impose two requirements: exclusion from his home for two years and a prohibition on approaching or communicating directly or indirectly with the complainant or her partner or daughter for three years, these in each case being the maximum periods permitted under the legislation relating to community orders.
- The appellant, his wife and their young son, who was approximately the same age at the defendant's young daughter, have been able to obtain a home elsewhere but at considerable expense. They are in desperate financial circumstances since the home from which the appellant has been excluded is heavily mortgaged and the property market has moved adversely since they purchased the home a year ago.
- The primary purpose of an exclusion requirement is not to punish the offender but to prevent, or at least reduce, the risk of further offending. We consider that it was disproportionate in this case to exclude the appellant from his own home when set against the risk of further offences in this case. We take the same view of the prohibited activity requirement, which is also open to the objection that its terms are so broad that it would mean the appellant, once permitted to return to his home, would be in breach of the prohibited activity requirement if he were so much as to say "good morning" to his next door neighbours.
- We therefore set aside both the prohibited activity requirement and the exclusion requirement. The remaining parts of the sentence imposed by the learned Recorder will remain.