Neutral Citation Number: [2018] EWCA Crim 1510
Case No: 201800316/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 3 May 2018
 
B e f o r e:

LORD JUSTICE SINGH 

MR JUSTICE EDIS 

MRS JUSTICE McGOWAN DBE 
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R E G I N A 
v 
GARY JASON SMITH 
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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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Mr R James appeared on behalf of the Appellant
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J U D G M E N T   (Approved)
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 

1.	MR JUSTICE EDIS:  Gary Jason Smith is now 54 years old.
2.	On 27 November 2017 he was committed for sentence to the Crown Court by the Magistrates' Court, under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  That committal was in respect of two offences of committing an act of outraging public decency by behaving in an indecent manner contrary to common law.  He was subsequently sentenced at the Crown Court to a total term of 33 months' imprisonment.  That was composed of two consecutive terms.  For the first offence in time (June 2017) a sentence, before plea discount, of 15 months was discounted by 20% to 12 months.  For the second offence (October 2017) a sentence of 24 months was imposed and discounted by 12.5% or one‑eighth to 21 months.
3.	There is no criticism of the plea discounts.  The plea to the first offence was entered before trial but after a not guilty plea had been first entered in the Magistrates' Court.  The plea to the second was entered on the day of trial.
4.	He now appeals against that sentence by leave of the single judge.
5.	The first offence was committed on 17 June 2017 at about 3 o'clock in the afternoon.  The appellant was in the vicinity of a community centre where there was a class of adults, mostly in their 60s, both men and women, engaging in some form of activity.  He appeared at the window and was seen by them to be masturbating in clear sight of the class.  
6.	The person who was supervising and conducting the class subsequently made a statement to the police in which she said that she saw him at the window peering in and that he seemed to be getting agitated.  He then moved from one window to the next until one of the students knocked on the window and gestured for him to go away.  He went to a tree about 20 feet from the building where he carried on masturbating.  He was later seen by a member of the public lying beside a tree near the community centre with his hands still down his trousers and at one point a girl of 11 years of age walked past him while he was still behaving in the way we have described.  He was still doing that when the police got there.  They arrested him and released him on police bail.  
7.	On 7 October 2017, at about 4 o'clock, he was near Peterborough Cathedral where there was a wedding ceremony taking place with members of the public present.  He was inside the cathedral masturbating until somebody spoke to him.  He then moved from one place to another continuing all the while to act in the same way.  He was then told to leave but he carried on masturbating in the car park until he was arrested. 
8.	He has previous relevant convictions.  He has appeared before the courts on 22 previous occasions but the relevant convictions are the most recent.  In December 2013, for an offence of exposure, contrary to the Sexual Offences Act, he first received a community order but that subsequently was varied to a suspended sentence of imprisonment.  That resulted in his being required to notify, under the notification requirements, which he failed to comply with which resulted in a further conviction in February 2014 and then again in March 2014 and then again in May 2014.  In November 2014 he was again before the Magistrates' Court, this time for a public order offence but also for a further offence of exposure and an offence of committing an act outraging public decency.  There was a community order with a supervision requirement in respect of all that.
9.	In December 2015 and March 2016 there were two further offences of failing to comply with notification requirements, and in November 2016 there was a further offence of outraging public decency.  That resulted in a sentence of imprisonment of 18 weeks.  In December 2016, again there was a sentence of imprisonment for a yet further offence of failing to comply with notification requirements.  It will be seen that not very long transpired between the release from that last sentence and the commission of the first offence in this case.
10.	The judge concluded that the custody threshold was passed and imposed what is, on any view, a substantial term of imprisonment.  He observed that the first offence was committed with a degree of persistence and that the second was committed at Peterborough cathedral, whilst on bail, during a wedding ceremony at a place which some regard as holy.  He was unable to give effect to any mitigation arising from the mental state of this appellant.  The reason for that was because although there was apparently a history of schizophrenia going back to 2006, the appellant refused to have any psychiatric evaluation on this occasion and therefore was unable to take advantage of any assistance that the court might be able to provide to him. The judge concluded that he would not accept help and further, that there was a high likelihood that, if given liberty to do so, he would simply re‑offend.  None of that is capable of any sensible criticism. 
11.	This appeal is advanced, with leave, on the basis that the judge should have given effect to the sentencing guidelines for the offence of exposure and should have applied those on the basis that an offence of exposure is necessarily more serious than the offence present kind where the penis does not appear to have been visible during these serial acts of public masturbation.
12.	The statutory maximum for that offence is 2 years and the guideline allows a range for this class of offence of medium community order to 26 weeks' custody.  It is submitted that on that basis that a sentence before plea discount of 39 months, which was that taken by the judge in this case, was manifestly excessive.
13.	That argument was advanced before the Court of Appeal in the case of R v Birch [2007] EWCA Crim 1008 to which the judge was referred.  It did not find favour. 
Discussion 
14.	We consider that a sentence before plea discount of 39 months is simply far too long for this kind of offending.  The history of this appellant, so far as sexual offending is concerned, is that he is a considerable nuisance and causes significant distress.  He is acquiring a worrying record of sexual offending which has been very persistent over the course of the last 5 years and has not been deterred or controlled by any of the orders which have been made.
15.	Nevertheless, he has not, by his conduct, given any indication yet that he is likely to commit any sexual offence involving contact.  That is of course no guarantee that this is not going to happen but nevertheless it is important to tailor the sentences so that they are proportionate to the conduct in respect of which they are imposed.
16.	We do not think that this offending is significantly less serious than the equivalent offending involving exposure of the naked penis.  The conduct is the same, and is equally shocking or distressing.  The appellant made the purposes of his activity perfectly plain to everybody who saw it.  So, we reject the suggestion that the maximum sentence for this offence ought to be treated as being less than 2 years' imprisonment.  The sentence is at large.
17.	We consider that for the June offence a sentence of 12 months, after a trial, was appropriate and that this should be discounted by approximately 20% to one of 10 months.  That offence involved conduct in the presence of an 11‑year‑old girl which is an aggravating feature.  The second offence was also serious, being committed during a wedding and in a cathedral.  That location was obviously chosen in order that the appellant could cause additional impact and no doubt he did.  We are not told whether there were children at the wedding but there usually are and it will only have been good fortune if there were none on this occasion.  In our judgment, a sentence of 15 months was appropriate in that case, which would be discounted by a little over 10% to one of 13 months.  
18.	These sentences should properly be consecutive to each other but that approach, in our judgment, would produce a disproportionately long sentence.  These sentences require a significant adjustment to give effect to the totality principle.  We quash the sentences totalling 33 months and impose in their place sentences of 8 months and 10 months consecutively, making 18 months in all.  To that extent this appeal is allowed.  The other orders which were made in the lower court are unaffected. 
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