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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hawkins, R v [2007] EWCA Crim 2221 (15 August 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2221.html Cite as: [2007] EWCA Crim 2221

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 15th August 2007

1. MR JUSTICE HENRIQUES: On 22nd June of this year in the Crown Court at Worcester, the applicant having earlier pleaded guilty to a count of exposure he was sentenced to an extended sentence of six years' imprisonment, comprising a custodial term of 12 months' imprisonment and an extension period; that is an intended period of licence of five years. As has already been indicated, that extended sentence of six years' imprisonment is unlawful. An offence of exposure contrary to section 66(1) of the 2003 Sexual Offences Act is a specified sexual offence, carrying a maximum custodial sentence of two years. By virtue of section 2 of the Criminal Justice Act in respect of an offence (inaudible) must not exceed the maximum term permitted for the offence - in this case two years.
2. We turn to the facts. At about 6.00 pm on 15th May 2006, two 14-year old girls were walking along the road when the appellant passed them in his vehicle, slowed down, continued on for a short distance and then stopped. The girls continued walking in the same direction. When they got level with his vehicle they saw him masturbating. One girl described watching for a few seconds. The two girls laughed and ran off. The other girl said she found it disgusting. They took the car's registration number and he was in due course traced by the police.
3. When interviewed he was completely frank. He said he had been reading a Sunday newspaper, he became sexually roused and pulled over to masturbate.
4. The appellant's mitigation was his plea of guilty, his remorse, the fact that he did not seek physical contact. The girls appeared to treat it as a laughing matter and appear to have suffered no harm. He was ready to accept help to address his impulses. He had been employed as an electrical engineer for the past 14 years.
5. We begin by considering the judge's conclusion that there was a significant risk to members of the public of serious harm from the applicant. The judge had concluded that the excitement derived by Mr Hawkins from public masturbation would inevitably subside through repetition, and then he would have to go further for the same reward to be achieved.
6. We are not able to concur in that conclusion. The counter-argument is that he has reached 45 years of age without any progression of his activities. He has one previous conviction in 2004 for the same offence when he was fined. For the last five years he has been in regular contact with a psychologist in the psychiatric services throughout. In interview with the probation officer he asked for professional assistance. He was highly motivated to undertake a community based programme.
7. In the assessment of the probation officer, there was a low risk of re-conviction for a similar offence, notwithstanding the fact that the appellant had disclosed other similar offences, albeit not necessarily within such public circumstances. He was said to pose a medium to serious risk of harm to children. The report recommended a community order with a supervision requirement for a period of three years, with a requirement that he actively participated in the National Probation Service West Midlands Community Sex Offender Group Work Programme as directed by his supervising officer and that he should co-operate with any psychological assessment deemed necessary by his supervising officer. We note from the report that this is a most demanding and constructive programme, involving at least 290 hours of attendance, with psychometric testing at set points throughout the programme. In addition, he would see his probation officer at regular intervals.
8. We do not conclude that there was here a significant risk to members of the public of serious harm from the appellant. The available evidence does not, in our judgment, warrant such a conclusion. Had the appellant been present, we would have asked certain questions of him, indicating his agreement to participate in such a process. Since he is not, we would invite counsel, please, to undertake and ensure that within seven days the appellant agrees to actively participate in the National Probation Service West Midlands Community Sex Offender Group Work Programme as directed by his supervising officer, and that he should co-operate with the psychological assessment deemed necessary by his supervising officer. He should also, likewise, understand that if he fails to abide by the conditions of the supervision then he is liable to be brought back and resentenced. He must remain in contact with the probation officer throughout the three-year period of supervision and he must also notify the probation officer of any change of address.
9. Can we please understand that those matters will be made plain. In the event of him declining in any way this court must be notified.
10. MR TUCKER: Indeed, my Lord, that will be done. If it helps at all I know that on the day of his sentence he was more than prepared to co-operate.
11. LORD JUSTICE LATHAM: No doubt he will, but it is necessary so that he could be dealt with by way of breach in the event of his failure. But the court should be notified that he has agreed. Accordingly, the sentence passed will be quashed and in its place will be a community order attached to a supervision requirement lasting for a period of three years with the two conditions specified.