No: 200104809/W3
Neutral Citation Number: [2001] EWCA Crim 2638 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
 
Monday 19th November 2001

B E F O R E :

LORD JUSTICE WALLER
MR JUSTICE ROUGIER

and

MR JUSTICE STANLEY BURNTON

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R E G I N A

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S M S

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MR N GOLDWATER appeared on behalf of the Appellant

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JUDGMENT
19th November 2001
1.	MR JUSTICE STANLEY BURNTON: On 8th December at Manchester Crown Court the appellant pleaded guilty to committing an act outraging public decency. He asked for an additional offence to be taken into consideration. On 8th June 2001 he was sentenced by His Honour Judge Swift to three years' imprisonment. In May 2000, following the offence for which he was sentenced in this case, he was recalled to prison to serve 12 months' imprisonment, being the unexpired portion of a sentence of four years' imprisonment imposed for sexual offences in December 1997. The instant offence placed him in breach of his early release licence. He appeals against sentence by leave of the single judge.
2.	The brief facts of the case were that on 18th April 2000 the appellant masturbated on a bus in view of three teenage girls aged 13 and 14. One of the girls pointed out to the others that the appellant was masturbating. He got off the bus and they saw semen on the seat. One of the girls vomited on seeing this. He did not look at them while masturbating or say anything. They only briefly saw his penis. However, they reported the matter to the bus driver. Swabs were taken. The swabs of the semen matched the appellant's DNA.
3.	He was arrested on 16th May 2000. In interview he admitted the offence and another offence, namely that which he later asked to be taken into consideration.
4.	The appellant was 27 at the time of the offence, having been born in March 1974. He had 16 previous convictions involving 58 offences predominantly for indecent assault and exposure, including gross indecency with children. He had previously served sentences of imprisonment, the longest being a period of four years imposed for indecent assault and exposure imposed at Manchester Crown Court in December 1997.
5.	This was, therefore, a case in which the protection of the public was rightly very much at the fore of the judge's mind. There were before him, and there are before us, a psychiatric report and a psychological report. The reports are by a psychiatrist and psychologist from the Eden Field Centre at Prestwick Hospital in Preston. The report of Dr Holloway, a psychiatrist, concluded that the appellant suffers from paraphilia. The particular paraphilia from which he suffers is that of exhibitionism. She came to the conclusion that unless the appellant is willing and able to address his behaviour he would inevitably continue to offend. Even if he does address his behaviour he is still at risk of offending in times of stress and distress. She referred to the number of attempts of intervention with him and therapeutic contact with the Gardener Unit and Glen Parva Unit.
6.	More positively Dr Holloway referred to a relationship which had built up between the appellant and a lady friend. She said that he appeared committed to his current relationship and states that sexual activity with her is more satisfying than engaging in his paraphilia. He states that this is the first time he has found a sexual activity, other than exhibitionism, sexually satisfying.
7.	Dr Holloway had concerns as to the weight that that was being put on the relationship. She came to the conclusion that the risk of escalation of his inappropriate sexual behaviour is low but that it is inevitable he will offend again unless he engages actively with professionals for help and the probation service. She said that the risk of offending at times of stress will remain for some time to come.
8.	The consultant clinical psychologist also referred necessarily to the medical history of the appellant and said this:
“Whilst previous therapeutic interventions have had limited success it would appear that Mr S. has internalised a number of concepts relating to his offending which would suggest that he is psychologically minded.
Although motivation is difficult to assess is Mr S. is indicating his willingness and desire to engage in a programme of therapy which appeared genuine.
Mr S. has a supportive network in the community including a relationship which may provide him with some stability. I believe that his partner is co‑operative and proactive in offering to be part of any programme offered.
It is my view that Mr S.'s presentation offers an opportunistic window for constructive engagement in therapy. I would be prepared, in conjunction with my probation and psychiatric colleagues to provide the core element of an intervention plan should the court consider this appropriate. This could be implemented upon release.
Without further intervention as indicated above it is probably inevitable that Mr S. will reoffend.”
9.	There was in addition, and there is before us, a letter from Mr S.'s partner. In that letter, written for the purposes of the original sentence, she confirmed that she wished to stand by him and that she attended court on that occasion. We have been informed and accept that their relationship is continuing notwithstanding his imprisonment and that the relationship would offer him significant support in the future were he to be released. In the circumstances, we do take the view that there is now a window of opportunity as Dr Duffy stated. 
10.	The appellant has already served a significant period of his sentence. If his sentence were to remain in the early part of next year he would be released and would have relatively little support. He is willing, we have been told, to accept a sentence of three years community rehabilitation starting from today. Such a sentence, with the conditions that we are minded to impose as to treatment, would give him considerably more support than he would otherwise receive. We have come to the view that in both his interests and in the interests of protecting the public from the repetition of such offences such an outcome would be preferable to the continuation of the present sentence.
11.	In those circumstances, he having indicated that he would accept that sentence of three years community rehabilitation, the appeal will be allowed. The sentence of imprisonment will be replaced with a sentence of three years' community rehabilitation as from today's date. There will be conditions to that order, namely a condition of residence at the house of his parents; we understand his partner will also live there. It will be a condition that he co‑operate with Dr Duffy and Dr Holloway in following any course of treatment they may require. There will also be a condition that during the period of the order he is not to use public transport in the form of buses.