Heywood, R v

Sentences for outraging public decency need not be assessed by close analogy with exposure guidelines where the offending is planned, prolonged and deliberately directed at victims who cannot readily escape it. The court may give substantial weight to the distress caused by making victims effectively captive to sexually gratifying conduct.

In applying totality, consecutive sentences may properly reflect separate offences committed over an extended period, while offences arising on the same day may be concurrent. The decisive question is whether the overall sentence is manifestly excessive when the offending is viewed as a whole.

The appellant pleaded guilty before magistrates to four counts of outraging public decency and one count of sexual assault. He was committed to the Crown Court at Nottingham and, on 7 May 2019, received a total sentence of three years’ imprisonment.

The offences occurred on trains over almost two years. The appellant repeatedly selected women travelling alone, engaged in sexually gratifying conduct while seeking their gaze, and concealed his conduct when others passed. In the final incident he also briefly touched the victim.

With leave of a single judge, he appealed on the ground that the individual terms or their consecutive structure, and therefore the total sentence, were manifestly excessive. He relied on an asserted analogy with exposure sentencing guidelines and on totality.

1. Appeal dismissed. The total sentence of three years’ imprisonment was not manifestly excessive.

2. The judge was entitled to reject a close analogy between the outraging-public-decency offences and exposure guidelines. The conduct was not fleeting. It involved a planned and sophisticated pattern of travel, clothing and victim selection. Each victim was effectively trapped on a train and subjected for a sustained period to conduct intended both to gratify the appellant and to unsettle her.

3. The court distinguished R v Pennant [2017] EWCA Crim 1180. Although that case involved repeated masturbation and actual exposure, its facts were less serious: the conduct occurred at a street corner, rather than against victims unable readily to leave, and its three counts arose on one day and were concurrent. The eight-month term for each outraging-public-decency count was therefore not excessive. The court also regarded the sentencing approach in R v Smith [2018] EWCA Crim 1510 as reinforcing that conclusion.

4. The sexual assault had been treated as a Category 3A offence and, considered alone, might have justified no more than 12 months before credit for plea. That observation did not determine the appeal. Its context within the sustained course of criminal conduct and the totality of the sentences were material.

5. The judge had carefully considered totality. He could properly impose largely consecutive terms for separate offences spread over two years, while making concurrent the offences committed on the same day. Even if the route to the sentence was unorthodox, the overall result was careful, proportionate and within the proper sentencing discretion.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence.

• Crown Court at Nottingham: on 7 May 2019 imposed a total sentence of three years’ imprisonment following committal for sentence from the magistrates’ court.