Healey, R. v

An extended sentence under section 227 of the Criminal Justice Act 2003 requires a risk of serious harm from further offending, not merely a risk of harm. The absence of serious harm in the present or previous offences does not preclude a future risk assessment of serious harm. A sexual offences prevention order is relevant to that assessment but is not conclusive.

The sentencing judge must decide the issue from all the evidence. On appeal, where the statutory assumption has been applied, the appellant must show that it was unreasonable not to disapply it. Persistent offending, offending against children, failure to acknowledge the conduct, and circumstances suggesting that protective measures may not prevent recurrence can justify an extended sentence.

The appellant pleaded guilty at the Crown Court at Leeds to exposure after masturbating on a train in view of two women. He had numerous previous convictions for exposure, including offences committed in the presence of children. He had reoffended shortly after earlier custodial sentences and committed the present offence while on licence.

The sentencing judge imposed an extended sentence of two years under section 227 of the Criminal Justice Act 2003, comprising 12 months’ custody and a 12-month extension period on licence. The appeal challenged only the extended sentence. The central issue was whether the judge had been entitled to find that the appellant posed a significant risk of serious harm to the public.

1. Appeal dismissed. The sentencing judge had sufficient evidence to conclude that the appellant posed a significant risk of serious harm and had jurisdiction to impose an extended sentence under section 227 of the Criminal Justice Act 2003.

2. The court accepted the principles derived from R v Lang [2006] 2 Cr.App.R(S) 3 and R v Johnson and Ors [2006] EWCA (Crim) 2486. The risk required is a risk of serious harm. The fact that no serious harm occurred in the instant or earlier offending does not preclude a finding that serious harm may result from further offending. A sexual offences prevention order may be relevant, but does not necessarily remove the risk.

3. The assessment was for the sentencing judge on all the evidence. The probation officer’s assessment was relevant but not determinative. Where the sentencer applied the statutory assumption, an appellant had to demonstrate that it was unreasonable not to disapply it.

4. The appellant’s repeated similar offending, including past exposure in the presence of children, his rapid return to offending after release, alcohol misuse, and his inability to acknowledge or explain his conduct supported the assessment. Exposure could cause serious psychological harm. The sexual offences prevention order could not guarantee that future exposure would not occur in front of children.

5. There was therefore no basis to regard the judge’s conclusion as unreasonable, nor to disapply the statutory assumption requiring at least an extended sentence.

• Court of Appeal (Criminal Division) — dismissed the appeal against the extended sentence: [2008] EWCA Crim 15.
• Crown Court at Leeds — following a guilty plea to exposure, imposed a two-year extended sentence under section 227 of the Criminal Justice Act 2003, comprising 12 months’ custody and a 12-month extension period on licence.