Bell, R. v

An offender is not properly treated as a repeat offender for sentencing purposes merely because several offences of the same kind are before the court on a first appearance. Where the applicable sentencing guidance indicates a community order for an offence of intentional exposure, and the repeat-offender range does not apply, immediate custody may be excessive despite multiple incidents and vulnerable victims. The appropriate sentence must reflect the relevant guideline category and the offender’s actual prior offending history.

The appellant pleaded guilty in the magistrates’ court to five offences of intentional exposure committed against five women on separate occasions. Two victims were aged 15. He was committed to the Crown Court for sentence and received nine months’ imprisonment on each count, to run concurrently.

He appealed against sentence. The central issue was whether he could properly be treated as a repeat offender under the relevant sentencing guidance and whether a custodial sentence was appropriate.

1. Appeal allowed. The court quashed the concurrent sentences of nine months’ imprisonment and substituted a community order with a two-year supervision requirement.

2. The sentencing guidance identified a community order as the appropriate sentence for intentional exposure absent aggravating or mitigating factors. It provided a custodial range for a repeat offender.

3. The appellant was not properly regarded as a repeat offender. Although he had committed five offences, this was his first court appearance for any offence of that type. The court therefore rejected the basis on which the repeat-offender sentencing range had been considered.

4. The court took account of the seriousness of the separate incidents, including the ages of two victims, and of the month already spent in custody. It also considered R v Whitton [2006] EWCA Crim 3229, where a community order had been upheld for more numerous offences. A community order was the appropriate sentence in this case.

5. The substituted order reduced the notification period under the Sexual Offences Act 2003 from ten years to five years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted a community order: [2008] EWCA Crim 55.

• Crown Court: On 12 December 2007, imposed nine months’ imprisonment on each of five counts, concurrently.

• South Eastern Surrey Magistrates’ Court: On 29 October 2007, accepted guilty pleas and committed the appellant to the Crown Court for sentence.