Sexual harm
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | http://doi.org/10.1177/0264550519876745a |
| Subject Matter | In court |
Probation Journal 66(4)
to exceptional circumstances, but the collective impact of all the relevant
circumstances makes the case exceptional;
the sentence should always have regard, among other things, to four key
questions (R v Avis (1998)): (i) what sort of weapon was involved? (ii) what
use, if any, was made of it? (iii) with what intention did the defendant possess
it? (iv) what is the defendant’s record?
reference to the circumstances of the offender is important; it is relevant that
an offender is unfit to serve a 5-year sentence or that such a sentence may
have a significantly adverse effect on his health;
each case is fact-specific and the application of the principles dependent
upon the particular circumstances of the individual case;
unless the judge is clearly wrong in identifying exceptional circumstances
where they do not exist or clearly wrong in not identifying exceptional cir-
cumstances where they do exist, the Court of Appeal will not readily interfere.
In this case, when determining that the psychiatric evidence could not amount to
exceptional circumstances, the judge had not adopted a holistic approach. As
regards the four Avis questions, these were not lethal weapons but disguised stun
guns can be used to inflict serious injury and these fell to be dealt with in line with the
deterrent policy intentions of the statute. While it was impossible to say why these
weapons were acquired or kept by N., the number of them, the nature of how they
were stored and the text he had sent belied any purely defensive and self-protection
motive. That text had suggested subsequent dealing with either these weapons or
others. ‘This is not the kind of case in which these were acquired and left untouched
and unthought about’. It could not be said with any confidence that no use was
made or intended to be made of them by anyone. ‘Putting these stun guns into
circulation is the very mischief at which the mandatory deterrent sentence is aimed’.
N. appeared unable to point to anything in the acquisition or possession of these
weapons that could amount to exceptional circumstances. As regards his physical
and mental health, the medical evidence now suggested that this was being well
managed in prison and that it was not possible to say that a 5-year sentence on him
was unduly onerous on that account. His appeal was dismissed.
R v NANCARROW, [2019] 2 Cr App R(S) 4.
Sexual harm
‘Childish’ exposure: Liability to notification
When walking past a woman aged 50 and her friend in public R. aged 18 got into
an argument with her. When she shouted at him that he was ‘acting like a girl’, he
responded that he was not a girl, pulling down his trousers and underwear to
expose his penis and moving his hips back and forth, going on to expose his naked
buttocks to her, causing her distress and disgust. He had previous convictions for
disorderly behaviour and for using threating or abusive words and for wounding.
On his conviction at magistrates’ court of exposure (Sexual Offences Act 2003 s66)
In court
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he was made subject of a conditional discharge order for three years, the justices
‘no doubt taking the view that this was a stupid piece of behaviour’ rather than a
sexually motivated offence.
Some 30 months later, following guilty plea to possession of a Class A drug with
intent to...
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