England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		4 April 2008

Friday 4 April 2008

MR JUSTICE PENRY-DAVEY: Mr Justice Foskett will give the judgment of the court.

MR JUSTICE FOSKETT:

1. This application for leave to appeal has been referred to the full court by the Registrar. It relates to sentences imposed upon the applicant by His Honour Judge Pert QC at Leicester Crown Court on 13 February 2008. The matters before the judge that day were, first, a committal for sentence from Leicester Magistrates' Court for an offence of exposure committed by the applicant on 24 April 2007. The committal to the Crown Court for sentence took place on 7 November 2007 following his conviction by the justices. On the same day the applicant was found guilty of threatening behaviour arising out of an incident that took place on 25 April in relation to which a conditional discharge for 12 months was imposed.
2. The second matter before the judge was an indictment containing three counts of exposure: counts 1 and 2 relating to two separate incidents on 1 September; and count 3 relating to an incident that took place on 14 September 2007. There was also a section 41 offence. The applicant pleaded guilty to those counts and admitted the section 41 offence on 2 January 2008. Sentence was adjourned for the preparation of a pre-sentence report and a psychiatric report.
3. The applicant was on bail for another alleged offence when he committed the offences on 24 and 25 April, and was on bail for those offences when he committed the offences set out on the indictment. In other words, all the offences were committed whilst the applicant was on bail.
4. In relation to the offence the subject of the committal for sentence, a plain clothes female police officer was in an unmarked police car outside the main entrance to Leicester Crown Court. The applicant made eye contact with the officer, walked up the driveway of a house, stood facing her, took out his penis and began to masturbate in front of her. The officer got out of her vehicle and identified herself as a police officer. The applicant continued to masturbate and smiled at her. As the officer locked her vehicle and crossed the road to arrest him, the applicant ran off. The officer gave chase but was unable to catch him.
5. On the following day the officer was at the same location. She saw the appellant with his hand in his pocket making masturbatory movements. At the time a woman was walking towards him. The applicant was arrested. When interviewed he made no comment, although he appeared to be amused at the way things were put to him. It was that second incident that gave rise to the threatening behaviour conviction and the conditional discharge to which we have referred.
6. The circumstances of the section 41 offence were as follows. Between 2.40pm and 3.10pm on 1 September 2007 a group of four women were walking along a canal towpath in Leicester. They saw the applicant staring at them whilst riding a bicycle. One of the women asked him for directions. He did not answer but continued to stare at them. They saw that the applicant had his left hand down the front of his trousers. He continued to look at the women as he appeared to play with his genitals.
7. As to the counts on the indictment, count 1 related to an incident that occurred between 2.30pm and 4.15pm the same day. A group of three 16 year old girls saw the applicant on a bicycle. He asked them the time and where they were going, but the girls walked off. He cycled around them, staring at them, and he followed them to a public toilet. He stared at them when they emerged from the toilet. As they walked along the towpath one of the girls told the applicant that they would call the police if he did not stop following them. The applicant did not reply, but continued to stare at them. When they looked round to see if he was still following them, they saw that he had taken his trousers down and had exposed his penis.
8. The incident giving rise to count 2 occurred a little later at about 4pm. A lone female who was walking along the towpath saw the applicant on a bicycle looking at her. He shouted "excuse me". When the woman turned she saw that the applicant had taken his trousers down to his mid-thigh and had his penis in his hand.
9. The incident giving rise to count 3 occurred on 14 September 2007 when a lone female was walking towards an underpass. As she talked to her boyfriend on the telephone she heard the applicant behind her. The applicant walked past her and on to the footpath which led to the underpass. There was a high school on one side of the road and a primary school on the other. The applicant stopped and the woman passed him. He then began to walk behind her. When the woman looked back she saw the applicant pull down the waistband of his jogging bottoms and expose his erect penis. This was in full view of both school playing fields. The woman was deeply shocked and feared for her own safety. Instead of using the underpass she went to the main road where she was more visible. When she reached the safety of the main road she turned and saw that the applicant had gone.
10. Requests for assistance were placed in a local newspaper. A member of the public provided the applicant's name and on 17 September 2007 he was arrested.
11. When interviewed the applicant denied the offences. Following a positive identification for one of the offences the applicant was re-interviewed. He continued to deny the offences. As we have indicated, in due course he was to admit the offences or at least to plead guilty on legal advice.
12. The judge imposed sentences of eight months' imprisonment on each of these matters, the sentences on counts 1 and 2 to be concurrent with each other, but otherwise consecutive to the other two terms of eight months' imprisonment, each of which was also consecutive to the other sentences. The net effect was a sentence of 24 months' imprisonment. As a result of his conviction for an offence listed in Schedule 3 of the Sexual Offences Act 2003, the applicant was required to comply with the provisions of Part 2 of the Act (notification to the police) for ten years.
13. The applicant was aged 27. He had ten previous convictions for 14 offences which included two offences of indecent exposure with intent to insult a female. Both offences, committed in February 2002, involved masturbation towards the two females in question.
14. The judge had the benefit of a psychiatric report dated 28 January 2008. It indicated that the applicant had a problem in relation to masturbation and sexual behaviour. He did not appear to have any insight or desire to seek help for this difficulty. He also appeared to have problems in relation to his behaviour generally. The most likely diagnosis was a personality disorder. It was said in the report that he was not amenable to treatment and that there was a very high risk of committing similar offences.
15. The judge also had a pre-sentence report dated 5 February. That indicated that the applicant denied the offences that he had pleaded guilty on legal advice. The assessment was that there was a high degree of culpability and premeditation and that his behaviour was highly compulsive. There were said to be a number of psychological issues relating to the abuse that the applicant had experienced as a child. In July 2007 the applicant apparently told his general practitioner that he spent all day masturbating and that he was sexually aroused by girls on the street. He expressed a desire to masturbate in a public place. A clinical psychologist considered him to be a potential danger to women. Research suggested that a proportion of men who indecently expose go on to commit serious contact offences. It was said in the report that the applicant was socially isolated, lived alone and had no friends. It was also noted that he would lose his accommodation if he was sent to prison. It was observed that there was an entrenched pattern of behaviour and that he was not suitable for probation supervision. The degree of sexual preoccupation meant that probation intervention was not enough to address his behaviour. The author of the report was not convinced that the applicant had the capacity to change in the medium to long term and that he was likely to re-offend when released from prison. The risk of further offending in a similar manner, including violence, was very high. He had, it was suggested, the potential to commit a serious sexual offence.
16. The judge apparently considered whether the applicant was a dangerous offender within the provisions of the Criminal Justice Act 2003, but decided that he was not and that he fell to be sentenced, as the judge put it, "within the ordinary mainstream of sentencing provisions". He prefaced the following words in his sentencing remarks with the proposition that the applicant was "a menace". He went on to say this:

"Your behaviour, whilst it may be as a result of a compulsion by you, is distressing and offensive to the people who witness it and accordingly it seems to me that my duty is to try and achieve a sentence that balances the need to keep you out of circulation for as long as is reasonably possible against measuring the gravity of what you have done, and it seems to me that the way that I can do this and must do this is by passing sentences whist themselves not being particularly lengthy are consecutive one to another."

The judge then went on to pass the sentences we have recorded above, giving no separate penalty in relation to the section 41 offence.

17. Mr Gibbs, who appeared before the learned judge and before us, has argued that the overall sentence of two years' imprisonment was excessive having regard to the plea of guilty and the totality principle. He also argues that the judge did not have sufficient regard to the guidelines set out in the Sentencing Guidelines Council's Definitive Guidelines for the Sexual Offences Act 2003, where those guidelines relate to repeat offenders. He submits that the judge should have applied the starting point of twelve weeks and borne in mind the sentencing range of four to 26 weeks. (It should be borne in mind that the starting point relates to a first offender who has pleaded not guilty).
18. Mr Gibbs has also reminded us that the maximum sentence for an offence of exposure is one of two years' imprisonment. He has drawn our attention to the cases of R v Masuk Miah [2006] 2 Cr App R(S) 46, R v Michael Cosco [2005] 2 Cr App R(S) 66 and R v Alex James Bell [2008] EWCA Crim 55.
19. The applicant has a history of offending in the way that he did on the occasions in question, given his convictions in 2002. Whilst it might be said in his favour that there was a gap of some five years before the re-emergence of the problem, the fact of the previous convictions means that there is scope for treating him as a "repeat offender", and, of course, the matters dealt with by the judge occurred on three separate occasions.
20. However, that is only one factor. The particularly troubling feature of this case is the combined assessment of the psychiatric report and the pre-sentence report to the effect that there is a high risk of repeat offending in the future with concerns being expressed that the applicant has the potential to commit a serious sexual offence. Whilst that risk and that potential will, of course, exist whatever determinate sentence is passed upon him, one concern of any court in such circumstances will be the protection of the public balanced against the seriousness of the conduct out of which the convictions arise.
21. In our judgment, the approach of the judge, which we endorse entirely, strikes the balance correctly and appropriately in this case. It should be noted that each offence was committed whilst on bail for another actual or alleged offence.
22. Whilst it is correct that the judge did not make express reference to the guidelines of the Sentencing Guidelines Council, it is clear from what Mr Gibbs has said in his very helpful and measured submissions that he was well aware of them. However, they are, of course, guidelines from which departure can be justified in particular circumstances. The considerations of concern to which we have referred and all the other circumstances to which reference is made in the recitation of the background here, justified it in this case in our view.
23. Accordingly we do not think that the overall sentence can be characterised as manifestly excessive or wrong in principle. In those circumstances this application is refused.