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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 >> Ketteridge, R. v [2014] EWCA Crim 1962 (23 September 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1962.html Cite as: [2014] EWCA Crim 1962

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd September 2014

1. LORD JUSTICE PITCHFORD: This is an appeal against sentence brought with the leave of the single judge.
2. On 29th July 2014, at the Sheffield Crown Court, the appellant was sentenced by His Honour Judge Kelson QC to a term of nine months' imprisonment in respect of two offences of indecent exposure. He was also disqualified from driving for a period of 12 months.
3. It is argued by Mr Smith on behalf of the appellant that the sentence of imprisonment was wrong in principle for two reasons: first, the judge wrongly placed the offences of indecent exposure into category 1 as defined by the sexual offences guideline, which came into force on 1st April 2014; second, and in any event, the court's principal concern was, or should have been, for the protection of the public, that objective was best to be achieved by the imposition of a lengthy community order in order that the appellant could undertake a sexual offences treatment programme as a requirement of the order. Mr Smith further argues that it was wrong in principle to impose a disqualification from driving on the particular facts of the present offences.
4. The first offence took place at about 8 am on 21st October 2013. On that day a party of nine Sheffield school children, aged 17 and 18 years, were accompanied by two of their teachers for a biology field trip. As they were driven north along the M1, they encountered restricted traffic flow caused by roadworks. The appellant, driving a jeep, drew up behind the minibus and overtook it. Having done so, he slowed down. Later he overtook the minibus a second time. He drew alongside the minibus, and he was at the same time staring at the pupils within the bus and masturbating his exposed penis. He continued this activity until he left the motorway at the next slip road. Someone inside the minibus had noted down the appellant's registration number and as a result he was traced.
5. When interviewed, he claimed to have no recollection of the incident. He said that he suffered from Type 2 diabetes and may have been urinating into a bottle.
6. The appellant was charged and ultimately committed to the Crown Court, where, on 4th April 2014, a trial was set for 1st July. In the meantime the appellant was admitted to bail.
7. Three days later, on 7th April 2014, the appellant was again driving his car, this time in the area of Huntingdon. At about 3 pm three girls, aged between 13 and 16 years, were standing on a bridge over the A1 road, having visited a McDonald's restaurant on the other side. The appellant saw them, came off the A1 via a slip road and drove past the girls at a speed estimated to be about five miles per hour. As he passed he stared at them and appeared to be moving about within the vehicle. He passed them on four successive occasions, during which he was seen to be masturbating his exposed penis.
8. The appellant was arrested and interviewed on 24th April. On this occasion he made no comment to the questions put to him.
9. The appellant pleaded guilty to the second offence on 9th June. On 1st July 2014, the day of trial for the first offence, the appellant changed his plea to guilty, the prosecution having been notified of his intention during the week before the trial.
10. The judge was provided with supportive statements from the appellant's wife and business partner.
11. Victim impact statements were made by the witnesses to both offences. They describe variously feelings of shock, disgust and feeling sick. One of the girls in the minibus said that she felt violated; another said she had difficulty trying to block out the memory. One of the girls on the bridge said she was angry by the appellant's behaviour; another said she was wary of drivers when she was out either alone or with friends.
12. The appellant is aged 45 years. He had no previous convictions recorded against him, but on 23rd July 2013 he was cautioned for an offence of indecent exposure committed the day before. The caution had been delivered by the Hampshire Constabulary in respect of an offence of indecent exposure committed at the Lime Pits at Old Basing in Basingstoke. The appellant was seen by adults and young children to have exposed his penis, which he proceeded to masturbate.
13. The judge was provided with a pre-sentence report dated 24th June 2014. The date is significant because it preceded the plea of guilty by a week.
14. The appellant told the probation officer, Mr Green, that he had been wrongly accused of the first offence for which he was awaiting trial. He was under stress when he committed the second offence, thinking that he might as well do that of which he had already been wrongly accused. He claimed that he had derived no sexual satisfaction from his actions and was not attracted to the 13 to 16-year-old girls.
15. Mr Green concluded that the offence was sexually motivated. The appellant's work as a fire safety engineer took him around the country, and he appeared to use the opportunity to commit offences away from his home area. He minimised his behaviour. Offences of the kind committed by the appellant were a significant driver towards contact offending. In Mr Green's assessment, the appellant provided a medium risk of causing serious harm to the public. Notwithstanding the assessment of risk, Mr Green proposed a community order with a requirement for a sex offender treatment programme as "potentially the most effective way of managing risk".
16. Pending the hearing on 1st July 2014, the appellant had approached a counsellor, Beverley Cummins. She saw the appellant on three occasions and in a letter (misdated 27th June 2013, but assumed to be 27th June 2014) she expressed the view that the appellant suffered from a condition called disassociation, which is one symptom of post-traumatic stress disorder. The result was, in Miss Cummins' opinion, that the appellant could not recall at least one of the offences.
17. The judge applied the guideline. A category 1 offence is one where both harm and culpability are raised. Raised harm is indicated by pursuit of the victim and masturbation of an exposed penis. None of the factors indicating raised culpability were present (see page 113 of the guideline), but in the judge's view the authors of the guideline would not have had in mind the particular form of offending which occurred in the present case. There were other aggravating factors. The appellant had previously and recently been cautioned for similar offending. The second offence was committed within three days of being admitted to bail by the Crown Court. The offences were committed in daylight on the open road. The children victims of the second offence were comparatively young. Giving effect to all these factors, the judge concluded that he should place the offences in category 1 and imposed consecutive sentences of imprisonment.
18. We accept the judge's observation that aggravating factors may be so serious that the appropriate sentence will fall outside the range for the category into which the offences individually fall. However, in our judgment, where the judge reflects the repetition of offending in consecutive sentences, he should be careful not to double count this aggravating factor so as also to sentence outside the appropriate range for each offence.
19. In the result, we do not consider that the judge did fall into this error. This was not so obviously a case for a community order that a sentence of imprisonment was wrong in principle or manifestly excessive. The upper limit of the range for a category 2 offence was six months' custody. Having given credit for the appellant's guilty pleas, the judge imposed five months' imprisonment for the first offence and four months' imprisonment consecutive for the second. Both these sentences were within the range for category 2 offences with the aggravating factors identified by the judge. We do not consider that they were either wrong in principle or manifestly excessive.
20. We therefore turn to the disqualification from driving.
21. The judge was invited by the prosecution to consider the exercise of his power to disqualify under section 147 of the Powers of Criminal Courts (Sentencing) Act 2000. In his sentencing remarks the judge said that he was disqualifying under section 146 and section 147.
22. Section 146 applies to the commission of any offence and is intended to add to the court's powers of punishment of the offender: see Sofekum [2009] 1 Cr App R (S) 78. The power to disqualify under section 147 arises, on the facts of the present case, where the offence is punishable in the Crown court with a sentence of two years or more and the court is satisfied that a motor vehicle was used for the purpose of committing or facilitating the commission of the offence.
23. The judge's reasons for imposing the disqualification appear at page 6 of the transcript of his sentencing remarks. He concluded that the appellant's offences were not only indecent, they also created an obvious danger to other road users because the appellant's attention was not on the road but on the young people at whom he was staring while controlling his vehicle with one hand on the steering wheel.
24. Mr Smith argues that since there was no charge of dangerous or indeed careless driving, the judge went wrong in principle to sentence as though for a traffic offence.
25. We agree that if this had been the sole justification for the disqualification, it would have offended principle. However, there can be no question, in our view, but that the appellant's commission of the offence was facilitated by his driving of his motor car on both occasions: it was the means by which the offences were committed. In our view, the judge was entitled to disqualify the appellant under section 147 on that ground alone.
26. Having made that judgment, the question arises whether the judge was bound to ignore the obvious danger to other road users, particularly those on the M1 motorway, created by the conduct in which the appellant was engaged. We do not think the judge was bound to ignore the undeniable circumstances of the driving and we are unable to find that the disqualification was bad in principle or in its length.
27. For these reasons, the appeal is dismissed.