No. 2009/01584/A5

Neutral Citation Number: [2009] EWCA Crim 1316
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  12  June  2009

B e f o r e:

MR  JUSTICE  COLLINS

and

MR  JUSTICE  IRWIN
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R E G I N A

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LEON  LAM-CALLINAN
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Mr S Bentley appeared on behalf of the Appellant

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J U D G M E N T
Friday  12  June  2009

MR JUSTICE COLLINS:  
1.  On 26 January 2009, at the Crown Court at Harrow, the appellant was convicted of seven counts of Exposure, contrary to section 66 of the Sexual Offences Act 2003.  On 2 March 2009 he was sentenced by Her Honour Judge Levy to a total of 15 months' imprisonment, concurrent on each count.  He now appeals against those sentences by leave of the single judge.

2.  The maximum sentence for the offence of Exposure, which was made an indictable offence by the 2003 Act, is two years' imprisonment.

3.  At the material times the appellant was employed as a learning mentor at a school in North London.  He began his employment there in 2006.  The offending took place over a period of 18 months and involved seven different fellow employees at the school.  It is important to note that all his offending took place against adults at the school; there is no suggestion that he was in any way responsible for inappropriate behaviour towards any of the children.  Nonetheless, they were serious offences of their type.

4.  Count 1 involved a lady who was a receptionist at the school.  The appellant would shower her with compliments.  In the summer of 2007, after the children had gone home, he said that he wanted to speak to her privately.  He took her to a room and said that he wanted the door locked.  He wanted to prove how much he fancied her.  He said, "Look what you do to me" and took out his penis.  She said that it was not the time or place and left the room.  She did not, as indeed did none of the victims of his behaviour, make any complaint to anyone in authority at the time.

5.  Count 2 involved a Year Head Teacher.  From January 2007 the appellant made a habit of making strange and inappropriate remarks such as, "Do you want to join in an orgy?"  "Do you want to see me naked?"  "I bet you want to see me naked."  On at least one occasion such remarks were made in the presence of another.  On a day in around May 2007 the appellant entered the staff room where the lady in question was using a computer.  He told her that he had something to show her.  He said, "Look", unzipped his trousers and pulled out his penis.  The lady left the room.

5.  Count 3 involved an Examinations Officer.  By June 2007 the appellant's conversations with her had become sexually suggestive.  He made observations such as, "I've got a ten inch cock", and, "My cock's like a snake and I can wrap it round my neck".  On an occasion in the summer he entered her office, stood behind the door and said, "Look, is this big enough for you?"  She saw that his erect penis was sticking out of his trousers.  She said that she had no time for this and left the room.

6.  Count 4 involved a teaching assistant.  She was in a small office.  The appellant came to the door and said that he had a problem with his penis; he thought it was too small.  There was some discussion about penis sizes.  He then exposed himself and asked whether it was too small.  The response was that it was.  He then asked the lady to measure his penis.  She said that because he appeared to be upset with her initial answer, reluctantly she did so.

7.  Count 5 involved another learning mentor.  In November 2007 the appellant asked her to help him with some work.  She found him behind a screen.  There was the sound of knocking.  The appellant asked if she knew what it was and she replied no.  He said, "That's my cock, it's hard".  He asked her whether she wanted to see it.  He stepped out from behind the screen and exposed himself to her.  He then sat down with his penis exposed.  When she appeared upset, he said, "Come on, it's a joke", and put it away.

8.  Count 6 involved a Polish teacher.  The appellant made inappropriate comments to her about his penis and about sex.  She said that he exposed himself to her on four or five occasions between September 2006 and October 2007.  On the last occasion he said that he was "so horny" and that he had found a place for them to meet, a room where nobody went.  He would bring a camera and he wanted her to film him masturbating.  He then took out his penis and asked her whether she wanted to touch it.

9.  Finally, count 7 involved a Polish teaching assistant.  The appellant tried to talk to her about her sex life and about his sex life.  On one occasion when she was alone in a class room he asked whether she wanted to see something interesting and pointed to the area of his penis.  On occasion he would bend over her and press his penis against her.  On another occasion he exposed his penis and she told him to put it away.  She said that he exposed himself to her on at least ten occasions.  It is clear from her description of his conduct that his bending over her and pressing his penis against her came very close to the offence of indecent assault. 

10.  Matters came to light when he approached another member of staff with whom he had the same sort of conversation as he had had with others.  He told her that he was worried that his penis was too small and asked her to take a picture of it by using her mobile telephone.  She declined.  She reported the matter to the authorities.  As a result of that the offences came to light.

11.  The appellant contested the matter at the Crown Court.  His case was that he had had a relationship with the first victim which had stopped short of sexual intercourse, and that she took umbrage when he ended it.  She spread stories about him having a small penis.  Of one of the other victims, he said that they regularly groped each other and that she had been a willing party to sexual conduct.  Of the third, he said that they had been playful with each other and she had touched his penis through his clothing and he then took it out.  He accepted that he had had discussions with the others and that his penis had been measured on one occasion, but all the other allegations had been fabricated.  The jury were satisfied that he was not telling the truth and that all these offences had been committed.

12.  In sentencing the appellant the judge said this:

		"I am very concerned that you show ...., it seems to me, little appreciation of the seriousness of your behaviour and accept little responsibility, if any, for what you did.  Sometimes an offence or a series of offences can be more serious than may first appear.  Even though there is no physical contact with the victim in the case of convictions for exposure, that causes serious alarm and distress, and it is clear that the victims who have written victim impact statements feel, and have felt (in some cases, continue to feel) distress as a result of your behaviour.

		I have said that I will make it clear again that there are  number of aggravating factors in your case.  You have been convicted of seven offences.  They were committed over a period of 18 months.  From the evidence of the victims which the jury clearly accepted, these were not opportunistic offences.  They were not committed on the spur of the moment.  You planned your approach to these women.  You behaved in a way so as to gain their trust.  You planned the use of out of the way rooms and the arrangement of screens in those rooms and you pestered them and then exposed yourself to these women.

		In doing so, you abused the trust of colleagues and you behaved in a particularly inappropriate manner in a school setting."

We endorse all those observations.  We are entirely satisfied that this series of offences were of their type at the higher end of seriousness.

13.  Mr Bentley on behalf of the appellant draws attention to the fact that there were impressive testimonials produced about him from the church which he attended.  The pastor concluded his observations as follows:

		"Having spent much time with Leon, I see a man who, although is not perfect, has been broken, humbled and changed for the good through the consequences of his wrongful actions of 2006-2007....  He has learnt much from these consequences and I believe he is a different man."

There was also a letter from the appellant's wife in which she indicated that she had forgiven him and that in her view he had learnt the error of his ways.

14.  The author of the pre-sentence report indicated that in her view the appellant would benefit from a community order or a suspended sentence order with a requirement to undertake a Community Sex Offender Programme.  Since his conviction he had shown a "slight shift" in his attitude to these offences by acknowledging that he went too far.  That is hardly an indication of a recognition that he had offended and that he took responsibility for having done so.  Nor does it indicate remorse for what he had done.

15.  Mr Bentley has referred us to a decision of this court in R v Bell [2008] 2 Cr App R(S) 337, which involved offences of exposure.  The appellant in that case had been convicted of five offences of exposure to different women and to girls.  He had pleaded guilty and had been committed to the Crown Court for sentence where he had received a sentence of nine months' imprisonment.  The nature of the offending was that between March and September 2007 he had exposed himself to five different women on five different occasions.  Each had been alone either walking in an alleyway, alongside a park or along a road.  On only one occasion did the victim state that the appellant's penis had been erect.  In two cases the victims were aged 15.  They were all shocked or angry.  In due course, having been arrested he accepted that he had done what was alleged but stated that his offending was not sexually motivated.  He had no previous convictions.

16.  Although the appellant in the instant case has convictions in the past, there was no sexual misconduct of any sort.

17.  Reference was made in Bell to the Sentencing Guidelines Council which suggests that for offences of this nature, assuming no aggravating or mitigating factors, a community order is the appropriate sentence.  There is then reference in the guidelines to a "repeat offender", for whom it is suggested that the range should be between four and 26 weeks' custody.  In Bell's case there had been some discussion at the Crown Court as to whether the appellant should be treated as a "repeat offender", but no conclusion was reached.  The Court of Appeal said:

		"We do not consider that this appellant can properly be regarded as a repeat offender.  This was his first court appearance for any offence of this type."

18.  Whether or not the appellant can be described as a "repeat offender", there were clearly aggravating circumstances in the offences which he committed.  The sentencing judge was right to take the view that the custody threshold was crossed.  We have reservations about the view apparently taken in Bell that repeat offending requires there to have been previous convictions.  It is not clear that that limitation was intended by the court.  All the court decided in Bell was that there was no indication that he should be regarded as a repeat offender.  However, we take the view that as a matter of English language someone who commits a series of offences over a substantial period of time can properly be regarded as a repeat offender.  It may well be that the matter becomes that much more serious if he has previous convictions for similar types of offending, but that in our judgment is not a requirement to enable the court to approach the matter on the basis that an individual should be regarded as a repeat offender.  It may not be necessary to categorise the matter in that way since the fact that offending has taken place in relation to a number of different victims over a period of time clearly increases the seriousness of that offending.  It is trite to say that the eventual penalty must reflect the total culpability of an offender.

19.  Although we take the view that the custody threshold was crossed, having regard to what is set out in the guidelines, and having regard to the fact that the maximum sentence for this offending is two years' imprisonment, we take the view that fifteen months' imprisonment was too long.  We propose, therefore, to quash the sentences of fifteen  months' imprisonment and to substitute for them sentences of nine months' imprisonment.  To that extent this appeal is allowed.