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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 >> Harris, R. v [2006] EWCA Crim 1864 (04 July 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/1864.html Cite as: [2006] EWCA Crim 1864

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 4th July 2006

1. LORD JUSTICE MAURICE KAY: This appellant, Melvin Sidney Harris, is now 58 years of age. On 30th November 2004 at Birmingham Magistrates' Court he was made subject to an Anti-social Behaviour Order which was to remain in force until 29th November 2006. That Anti-social Behaviour Order was imposed because of the wholly inappropriate way in which the appellant is given to behave towards young females.
2. On 20th January 2006, in the Crown Court at Wolverhampton the appellant pleaded guilty to two offences of engaging in sexual activity in the presence of a child, and one offence in the form of a breach of an Anti-social Behaviour Order. For the substantive sexual offences he was sentenced to 18 months' imprisonment on each count concurrent. For the breach of the Anti-social Behaviour Order, he was sentenced to 4 years' imprisonment, that also to run concurrently, giving a total of 4 years. He had spent 133 days on remand, which were to count towards his sentence. A further and wholly appropriate Anti-social Behaviour Order was imposed to remain in force for 5 years. He was disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000. There was a notification requirement under the Sexual Offences Act 2003.
3. He now appeals against sentence by leave of the Single Judge, the appeal being directed to the sentence of 4 years for the breach of the Anti-social Behaviour Order.
4. The original Anti-social Behaviour Order was made after the appellant had approached three 12 year old girls in Birmingham City Centre asking for oral sex. The Anti-social Behaviour was made, as we have recounted on 13th November 2004, one of the conditions being that the appellant was not to associate with any female under the age of 16.
5. The substantive sexual offences for which he was sentenced on 20th January 2006 arose in this way. At about 4.30 pm on 16th November 2005, two school girls, aged 12 and 13, were at the bus station in Walsall waiting to catch a bus home. The appellant stood in front of them and looked at them. The girls described him as looking at their faces and their legs and then masturbating in front of them. He whispered: "Oh that's nice, I like it." The girls could see his erect penis and that his trousers were getting wet. Both girls described being very scared and very frightened by the appellant's action, especially as the appellant followed them when they tried to move away. The appellant asked one of the girls: "Do you want to touch it." Both girls started to cry and ran off to find other adults. The girls were described as being hysterical, screaming, crying and shouting.
6. The appellant was arrested at the bus station and interviewed. He admitted the offences and said that he had masturbated for about 2 minutes in front of the girls. He said that he thought they were about to 12 to 14 years of age. He said he wanted to see their reactions and it was for his own gratification. He said that he had walked away and that the girls had followed him. Towards the end of the interview, he admitted that he was attracted to girls in that age group.
7. The judge had before him a pre-sentence report and a psychiatric report. Both make extremely depressing reading. The appellant has a large number of previous convictions, including 18 offences of indecent exposure and three of indecent assault on a female aged 16 or over.
8. The pre-sentence report concluded, unsurprisingly, that the appellant is assessed as at a high risk of re-offending. It referred to a lack of victim empathy, and motivation to change and referred also to his minimisation of his offences and his blaming of his victims. The report stated:

"In all the circumstances, he remains at very high risk of reoffending and the risks are likely to be greatest at any time. In terms of risk of harm, potentially the risk is high. Whilst he tends to expose himself and makes comments to the girls and has not to date committed any contact offences, the fact he indecently assaulted his daughters over a period of years, albeit several years ago now, would suggest that he has the potential to go further than exposing himself and asking the girls to perform sexual acts upon him. The potential risk of harm is therefore substantial."

9. The psychiatric report observed that the appellant does not suffer with any mental illness, mental impairment or psychopathic disorder within the meaning of the Mental Health Act 1983. The doctor said:

"He seems to suffer from what is tantamount to an addiction to exposing himself. In my opinion, his behaviour is lead by his desire to see the shocked expression on the victim's faces, which seems to provide him with a feeling of power and control. This seems to compensate for feelings of inadequacy in real life in individuals who commit these offences. Considering all the above, Mr Harris' previous offending, his current socio-economic position and in my opinion his risk of reoffending remains very high. It is likely that his re-offending would be of a similar nature."

10. The judge gave careful consideration to whether the material before him was such as to require him to impose a longer than commensurate sentence. He concluded that the material did not fall into that category. He said:

"But I do not have the power to pass such a sentence because I am not satisfied that the activities you have undertaken and are likely to repeat in the future would cause serious physical or psychological harm."

That was a conclusion which the judge was perfectly entitled to reach. He then proceeded to the sentencing exercise along conventional lines. He said:

"I do not think anything will change you. You have been through the sex offenders' programmes on previous occasions. That has not changed you. You admit that you cannot resist doing what you do. You have said that you do not want medication that may change you. You have admitted loitering outside children's clothes shops and bus stops and the like where you may get an opportunity to engage in this sort of conduct. You have been warned by being placed under an anti-social behaviour order. Nothing has stopped you. I think you are totally entrenched and I think the risk of you committing further offences is very high indeed."

The judge then expressly referred to giving credit for the pleas of guilty and imposed sentences to which we have referred.

11. In addressing us today and in his written submissions Mr Mann has focused on the sentence of 4 years' imprisonment for breach of the Anti-social Behaviour Order. His submissions begin with the observation that the statutory maximum for such an offence is 5 years. He seeks to make essentially two points. The first is that a sentence of 4 years' imprisonment is inherently disproportionate, having regard to the fact that this was a single breach of the breaches of the Anti-social Behaviour Order on a single occasion, at a time well into the duration of the order. He draws attention to the relationship between the sentence and that for the two substantive sexual offences being sentences of 18 months' imprisonment.
12. We do not accept the submission that the sentence is inherently disproportionate. As was observed by Sir Igor Judge President of the Queen's Bench Division in the case of R v H Stevens and Lovegrove [2006] EWCA Crim 255:

"It cannot...be right that the court's power is limited to the... maximum imprisonment for the distinct criminal offence. That would treat the breach as if it were a stand alone offence, which at the time when it was committed did not amount to a breach of the court order. In reality, the breach is a distinct offence on its own right, created by statute, punishable by up to 5 years' imprisonment."

13. We adopt that observation and detect no lack of proportionality between a sentence of 4 years and the criminality engaged in on this occasion in the form of the breach of the Anti-social Behaviour Order.
14. The second and more cogent submission made by Mr Mann is that the appellant cannot have been given the appropriate discount for his prompt pleas of guilty. If one assumes that the judge's starting point was the 5 year sentence which is the statutory maximum, then a discount of one-third, which would accord with the definitive guideline published by the Sentencing Guidelines Council would result in a significantly lower sentence than one of 4 years' imprisonment. The Sentencing Guidelines Council emphasised the fact that since the purpose of giving credit is to encourage those who are guilty to plead at the earliest opportunity, there is no reason why credit should be withheld or reduced simply on the basis that an offender is caught red-handed or has no conceivable defence. The normal sliding scale provided by the guidelines should still apply.
15. With reluctance, we conclude that applying that guideline to the circumstances of this case, the sentence of 4 years' imprisonment was excessive. The unequivocal prescription of the Sentencing Guidelines Council has received much recent criticism and is ripe for reconsideration, which we understand that it is to receive. However, it had and has normative status at the time of this offence and now. We have no enthusiasm whatsoever for reducing this sentence of 4 years which subjectively we consider to have been richly deserved. However, we feel obliged to say that, in the light of the guidelines, a discount of one-third for the prompt plea of guilty was akin to an entitlement. Accordingly, we quash the sentence of 4 years and substitute one of 3 years and 4 months, observing that the 133 days spent on remand will continue to count towards sentence. To that extent and to that extent only this appeal is allowed.