No: 200700727/A3 
Neutral Citation Number: [2007] EWCA Crim 1873
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 25th June 2007
 
B E F O R E:

MR JUSTICE TUGENDHAT 

HIS HONOUR JUDGE CHAPMAN 
(Sitting as a Judge of the CACD)
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R E G I N A 
 
‑v‑ 

KEITH ALAN SMITH 
 
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MISS J OLDFIELD appeared on behalf of the APPELLANT
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J U D G M E N T

1.	 MR JUSTICE TUGENDHAT:  On 27th November 2006 in the Crown Court at Basildon, before His Honour Judge Worsley, the appellant made a late change of plea and pleaded to two counts of exposure, (they are counts 1 and 2) and one count of engaging in sexual activity in the presence of a child (that is count 11).  On 11th January 2007, also before His Honour Judge Worsley, the appellant was sentenced on count 11 to 32 months' imprisonment; on count 2 to 12 months' imprisonment concurrent and count 1 to no separate penalty.  So the total sentence was 2 years and 8 months' imprisonment.  A Sexual Offences Prevention Order, pursuant to sections 105 and 106 of the Sexual Offences Act 2003 was imposed for a period of 10 years.  The appellant was disqualified from working with children, and required to comply with the provisions of Part 2 of the 2003 Act indefinitely.
2.	He appeals against sentence by leave of the Single Judge.  The facts, briefly, are these.  The appellant became friendly with a number of single mothers in his area.  He spent a lot of time with them and their families.  He often looked after the children and took them on outings.  The complainant in both the offences in counts 1 and 2 was a 9 year old girl, K.  On two occasions between 1st January 2005 and 31st July 2005 she was in a car with the appellant, driving.  K was in the back seat and the appellant told her to lean forward as he had something to show her. She leaned forward and saw that the appellant had exposed his penis.  It was concluded by the court that the first occasion, that is count 1, occurred before the 4th April, the second, that is count 2, after 4th April 2005.
3.	In count 11 the complainant was a 12‑year old girl, C.  Once again the appellant had befriended her mother and he was trusted to be in the company of C.  The offence occurred after 4th April 2005, as the court found.
4.	C was in her mother's bedroom, fixing her hair in front of a mirror.  She noticed the appellant standing behind her and saw he was masturbating.  He then ejaculated onto the mirror.  C ran from the room and the appellant called after her, saying he was sorry and he thought that she wanted him to show her.
5.	The offences came to light when K became unhappy about the appellant being allowed to look after her younger sister.  
6.	In interview the appellant denied the offences.
7.	There are victim personal statements from the complainant's mothers, which we have read.  They demonstrate the serious effect on the two children but, as the judge noticed, there were other charges ordered to lie on the file which were still pending at the time the statements were made.  The statements have to be read in that light.
8.	In his sentencing remarks the judge said the appellant had committed abhorrent sexual offences against children, having worked his way into a position of trust with the children's families.  The victims had been affected emotionally and he bore in mind the statement by the mothers.  It was noted that at the age of 50 the appellant had never done anything like this before and had no convictions more recent than 20 years.  But these were serious offences, and the judge considered the question of risk.  He was of the opinion that there was a risk of further sexual offences but no evidence of serious personal injury.  He said: 
"In all these circumstances, for you, this first time you come before the court for this sort of offending.  I do not judge that I am bound to pass the equivalent of a life sentence..."
But he said a substantial prison term was needed.  He gave credit for the plea of guilty, but not the credit that he would have given had the plea been at the first opportunity.  He said that, had the appellant been convicted after a trial, the sentence would have been 36 months.  Accordingly he gave a discount of about 10 per cent.
9.	The appellant's previous convictions, as long ago as the 1970s and early 80s, are for dishonesty and public order matters which are not material to the sentence to be imposed in this case.
10.	The writer of the pre‑sentence report noted that the appellant, at first, had difficulty accepting that he had committed the offences although he later acknowledged his guilt.  He gave a vague explanation of feeling low at the time, but denied that he had sexual interest in children.  He demonstrated difficulty in accepting responsibility.  The writer considered that the risk of reconviction was medium and noted that social services had said that he was not allowed to have any unsupervised or face‑to‑face contact with his own daughter.
11.	The appellant used amphetamines on a regular basis which may have been relevant to the offending.  He showed poor consequential thinking but was able to recognise the breach of trust.  He was reluctant to acknowledge the grooming of families of the victims.  He was assessed as posing a high risk of significant harm to children.  A specific Sex Offender Treatment Programme was needed to reduce the risk.  We have seen the report from the prison which is a good report but, again, is not of significance in sentencing for these types of offences, in these circumstances.
12.	The grounds of appeal advanced by Miss Oldfield are that the sentence imposed was manifestly excessive given the seriousness of the offence.  She referred us to the definitive guideline of the Sentencing Guidelines Council for sexual offences, under the 2003 Act and noted of course that the guidelines apply to those who are sentenced on or after 14th May 2007.  Accordingly they do not apply in terms to this appellant albeit they are helpful to us.
13.	The most serious offence, of course, is count 11, the masturbation in the presence of a child.  In our judgment, the starting point for this offence, after a trial, and given the aggravating features in particular, the element of breach of trust and persistence, in the light of the other counts, would have been some 21 months' imprisonment.  
14.	We have not invited submissions on what would have been the appropriate starting point in relation to counts 1 and 2 because, in the circumstances, the sentencing on those counts does not affect the outcome of the appeal.  The appellant is entitled to the reduction of one‑tenth for his late plea, which the judge accorded him.  Applied to this starting point, that leads to a sentence of 18 months.
15.	In our judgment, that is the appropriate sentence that should have been imposed in this case and the sentence imposed by the judge was overall too long.  Accordingly, we reduce the sentence on count 11, to a sentence of 18 months' imprisonment and we do not disturb the concurrent sentence on count 2, or there being no separate penalty on count 1.
16.	In the light of that conclusion, the appropriate period for notification is 10 years. To that extent, we allow the appeal.