Smith, R. v

An offence of outraging public decency by public masturbation is not materially less serious than comparable exposure merely because the naked penis is not visible. The conduct may be equally shocking and distressing, and the maximum sentence should not be treated as lower on that basis.

Where consecutive sentences properly reflect separate offences but produce a disproportionate aggregate term, the court must make a significant adjustment to give effect to the totality principle.

The appellant was committed to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 for two common-law offences of outraging public decency. He had masturbated publicly near a community centre in June 2017 and at a cathedral during a wedding in October 2017.

The Crown Court imposed consecutive sentences totalling 33 months’ imprisonment. On appeal, the appellant contended that the guideline for exposure should have governed sentencing and that public masturbation without visible genital exposure was necessarily less serious. The central issues were the relative seriousness of the conduct and whether the total sentence was manifestly excessive.

1. Appeal allowed to the extent of reducing the total sentence to 18 months’ imprisonment. A pre-discount total of 39 months was far too long for this offending, notwithstanding the appellant’s persistent relevant offending and the distress caused.

2. The court rejected the submission that public masturbation without visible genital exposure should be treated as significantly less serious than exposure. The conduct and its purpose were plain to those who witnessed it, and it could be equally shocking or distressing. The statutory maximum for the common-law offence should therefore not be treated as less than two years’ imprisonment. The sentencing guideline for exposure did not determine the sentence, which was at large. The court noted that the same argument had not succeeded in R v Birch [2007] EWCA Crim 1008.

3. A sentence of 12 months before credit for plea was appropriate for the June offence, aggravated by its commission in the presence of an 11-year-old girl. A sentence of 15 months before credit for plea was appropriate for the October offence, which was committed at a cathedral during a wedding and was intended to create additional impact.

4. Although the individual sentences properly ran consecutively, the resulting term required a significant adjustment under the totality principle. The court quashed the 33-month sentence and substituted consecutive terms of eight and ten months. Other orders made below remained unaffected.

• Court of Appeal (Criminal Division): allowed the sentence appeal in part and substituted consecutive sentences totalling 18 months’ imprisonment.

• Crown Court: imposed consecutive sentences totalling 33 months’ imprisonment for two offences of outraging public decency.

• Magistrates’ Court: committed the appellant for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.