Hawkins, R v

An extended sentence for a specified sexual offence must not exceed the maximum custodial term permitted for that offence. A sentence exceeding that limit is unlawful.

A finding that an offender presents a significant risk of serious harm must be warranted by the available evidence. It cannot rest on unsupported speculation that repeated conduct will inevitably escalate. Where the evidence instead supports structured supervision and treatment, a community order with appropriate conditions may be substituted.

The appellant pleaded guilty at Worcester Crown Court to exposure after two girls saw him masturbating in his parked vehicle. On 22 June 2007, the Crown Court imposed an extended sentence of six years' imprisonment, comprising 12 months' custody and a five-year extension period.

The sentencing judge found that the appellant presented a significant risk of serious harm to the public. The appellant appealed against sentence. The central issues were whether the extended sentence was lawful and whether the evidence justified the risk finding.

1. The appeal against sentence was allowed. The extended sentence was unlawful. Exposure contrary to section 66(1) of the Sexual Offences Act 2003 carried a maximum custodial sentence of two years. The court applied section 2 of the Criminal Justice Act as preventing an extended sentence for the offence from exceeding that maximum. The six-year sentence therefore had to be quashed.

2. The court did not accept the sentencing judge's conclusion that the appellant posed a significant risk to the public of serious harm. The inference that public masturbation would inevitably cease to provide excitement and lead to more serious conduct was not warranted by the evidence.

3. Relevant evidence pointed the other way: the appellant had reached 45 without progression in his conduct; he had only one previous conviction for the same offence; he had engaged with psychological services; and he was willing to undertake treatment. The probation assessment identified a low risk of reconviction and recommended a demanding community-based sex-offender programme with supervision.

4. The court substituted a community order with a three-year supervision requirement. The appellant was required to participate actively in the National Probation Service West Midlands Community Sex Offender Group Work Programme, cooperate with any required psychological assessment, remain in contact with probation, and notify any change of address. A breach could result in his being returned for resentencing.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 2221, allowed the appeal against sentence, quashed the extended sentence, and substituted a community order with three years' supervision.

• Crown Court at Worcester: On 22 June 2007, following a guilty plea to exposure, imposed an extended sentence of six years' imprisonment.