Birch, R. v

Where a custodial sentence for a new offence is ordered consecutively to an unexpired licence term, the total sentence must satisfy the principle of totality. The court must also avoid double counting an offender’s antecedents both to aggravate the new sentence and through the consecutive consequence of licence recall.

A substantial custodial sentence may nevertheless be justified for conduct creating a real risk to a lone woman, even if the intended victim was unaware of it. The sentence must reflect the offence actually admitted and its proved criminality.

The appellant pleaded guilty at Chester Crown Court to outraging public decency. An alternative count of indecent exposure was not pursued. CCTV showed him exposing himself and masturbating at a bus stop before following a lone woman through the city centre while intermittently exposing himself.

He had extensive convictions for sexual offending and committed the offence while on licence for an attempted rape sentence. The Crown Court imposed three years’ imprisonment, consecutive to 489 days of the earlier sentence that remained to be served following recall.

He appealed against the three-year sentence, contending that it gave insufficient credit for his guilty plea and was excessive when compared with sentences for related offending.

1. Appeal allowed. The sentence of three years’ imprisonment was manifestly excessive. It was quashed and replaced with 18 months’ imprisonment, consecutive to the 489 days of the unexpired earlier sentence.

2. The court accepted that the offence was too serious for a community sentence. The appellant’s conduct created a real risk to a lone woman, and his antecedents demonstrated a real risk to women. The woman’s lack of awareness did not make the offence insubstantial, because the pursuit could have developed more seriously but for the CCTV operator’s intervention and the police response.

3. However, the consecutive licence term required careful application of totality. A three-year term for the new offence was unnecessarily long when added to the period to be served on recall. It also risked counting the appellant’s previous record twice: first in aggravating the new sentence and again through the consequence of the breach of licence.

4. The court rejected the submission that sentencing should begin with the maximum available for the unpursued indecent-exposure count. The appellant had pleaded guilty to outraging public decency, and the sentence had to reflect the criminality of that offence. A substantial custodial term remained necessary, but 18 months was the appropriate term.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 18 months’ imprisonment, consecutive to the unexpired licence term.
• Chester Crown Court: On 30 October 2006, sentenced the appellant to three years’ imprisonment for outraging public decency, consecutive to the period to be served following recall on licence.