No. 2006/05961/A5

Neutral Citation Number: [2007] EWCA Crim 1008
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  20  April  2007

B e f o r e:

LORD  JUSTICE  GAGE

and

MR  JUSTICE  BURTON

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R E G I N A

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STEPHEN  BIRCH
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MR P ANDREWS appeared on behalf of THE APPELLANT

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J U D G M E N T

LORD JUSTICE GAGE:  I will ask Mr Justice Burton to give the judgment of the court.

MR JUSTICE BURTON:
1.  Stephen Edward Birch, who is now aged 42, pleaded guilty in the Crown Court at Chester to committing an act outraging public decency on count 2 of an indictment which had contained as count 1 a charge of indecent exposure. In the light of the plea to count 2, no evidence was offered on count 1. On 30 October 2006, he was sentenced by His Honour Judge Dutton to three years' imprisonment.  He appeals against sentence by leave of the single judge.

2.  The appellant has a most unfortunate and regrettable previous history.  He has nine previous convictions in respect of 24 different offences relating to variations of sex offences. In November 1982 he was sentenced to three-and-a-half years' imprisonment for an offence of rape.  In 1990 and 1991 he was sentenced to a series of sentences of three-and-a-half years' imprisonment in respect of indecent assaults. More recently, in February 1998, he was sentenced to nine years' imprisonment in respect of attempted rape. It was while out on licence in respect of that sentence that the present offence was committed, thus rendering him in breach of licence.

3.  The events the subject matter of this conviction occurred in the early hours of the morning of 24 July 2006. By the fortunate event of there being a CCTV camera trained on a bus stop in Chester, the appellant was captured on the television with his penis exposed and masturbating at that bus stop. While he was doing so, a lone woman walked past the bus stop. The appellant was tracked on the CCTV as he followed the woman through the city centre. He crossed the road on a number of occasions in an attempt to ensure that the woman did not notice that she was being followed.  At one point he took out his penis from his trousers while following her.  He hid in shop doorways in order to continue the pursuit unwatched (as he thought). The woman walked towards a roundabout with a subway underneath it. The operator, who had already called the police, described how he desperately hoped that the woman would not go into the underpass.  Fortunately, just before she reached the underpass at the roundabout, the police vehicle which the CCTV operator had called arrived.  The appellant stopped in his tracks.  The police officers did not at that stage intervene. The appellant continued to follow the woman and he was then arrested.  Fortunately, the woman in question seems never to have been aware of the pursuit.  She certainly was not aware of the arrest of the appellant.  

4.  The court below watched the CCTV footage. We had the opportunity of doing so, but have not thought it necessary to watch it in the light of the clear account which we have given.

5.  In sentencing the appellant there was, understandably, no doubt in the mind of the judge that the full period of the unserved previous sentence (489 days) should be served.  No appeal is pursued in respect of that.  However, the judge also had to deal with the instant offence.  He noted the appellant's previous history as plainly very serious.  He concluded from the evidence and from the video-recording that the appellant had followed the woman deliberately.  The judge concluded that his behaviour was a significant cause of public concern and that women on the streets late at night were at risk.  It appears from a pre-sentence report that the view of its author was that this was consistent with the previous behaviour of the appellant following a pattern of attacking females from behind.  It appears that it was something that he had travelled from his home to the city centre in order to do.

6.  The judge concluded that the case posed a significant problem. One possibility which had been recommended by the probation officer was some kind of community sentence. But the judge considered that this was too serious an offence in the light of the appellant's antecedents and the extent of his criminality in this case to accept such a recommendation. The judge concluded, after careful consideration, that the offence was too serious to be dealt with in any other way than a sentence of imprisonment and that the appellant was a serious risk to women and would be dealt with on that basis.  He imposed a sentence of three years' imprisonment, which he ordered, as was inevitable, to be served consecutively to the licence period which would now have to be served in full.

7.  The appeal presented by Mr Andrews on the appellant's behalf, for which the single judge gave leave limited to the three year aspect of the sentence, was put forward on the basis that insufficient weight was afforded to the appellant's prompt guilty plea and that the fact that the appellant pleaded guilty to the offence of outraging public decency, which had a higher maximum sentence than the sentence available in respect of indecent exposure under count 1, should have been borne in mind in relation to the sentence.  That is a difficult matter to articulate when it was the appellant himself who, although the second count had been added as an alternative, pleaded guilty to that second count and did not plead guilty to the first count.  It was therefore the second count alone with which the judge had to deal.  But the point made by Mr Andrews is that the criminality was considered by the prosecution to be satisfactorily addressed by the original count of indecent exposure, even though it was not that count to which he in the event pleaded guilty.

8.  The single judge gave leave on the basis that that argument, namely by reference to the maximum sentence for indecent exposure, was arguable.  He also referred to R v Cosco [2005] 2 Cr App R(S) 405. That was a case in which, after a plea of not guilty and a conviction, a defendant was sentenced to 18 months' imprisonment, after a longer sentence given at trial was quashed on appeal to this court. By reference to Cosco, and to the 18 month period on a plea of not guilty, the single judge encouraged the argument to be run that three years was too long.

9.  On the other side of Cosco must be set R v Miah [2006] 2 Cr App R(S) 46 at page 304, in which, following a sentence of three years' imprisonment on a plea of guilty to outraging public decency, this court reduced that sentence to two years' imprisonment.  

10.  We are persuaded that, particularly by virtue of the sentence being ordered to run consecutively to the unserved licence period of 489 days, three years was manifestly excessive in respect of the criminality of this offence, whether by reference to Cosco or to Miah. Three years was unnecessarily long to impose on top of the original sentence. On the basis of totality, on the basis of the criminality of this offence, and on the basis of avoiding double jeopardy by twice taking into account the appellant's previous record, by reference to exacerbating the sentence for this offence and making it consecutive to the licence period, a substantially lesser period than three years would in our judgment have been appropriate.

11.  Mr Andrews has sought to persuade us that a period even shorter than 18 months would be appropriate. He submits that the court should start with the maximum of two years for the offence of indecent exposure (to which the appellant did not plead guilty) and reduce that for the early plea, and that to that extent the 18 months would be giving the maximum sentence for an offence which is not the most serious of its type, given that the woman in this case did not know what was happening.

12.  We do not agree with that approach. The reality is that this was a plea of guilty to outraging public decency. This was a serious offence, even though the lady did not know what was happening, by virtue of the real risk that might well have followed but for the speedy events triggered by the CCTV operator and the police. The appellant is a real risk to women on their own. We conclude that, quite apart from the issue of the indecent exposure argument to which counsel has referred, the criminality of this offence must be met by a substantial period of imprisonment. We conclude that the right period is eighteen months. To that extent the sentence of three years consecutive to the licence period will be quashed and it will be replaced by a sentence of 18 months' imprisonment which will run consecutively to the 489 days unexpired term to which we have referred. The time spent on remand will count toward the sentence.

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