Exposure sentencing: custody may be justified by arrest/bail aggravation, but must remain proportionate to the guideline and totality

Case: Fielding, R. v
Citation: [2026] EWCA Crim 916
Court: England and Wales Court of Appeal (Criminal Division)
Date: 23 June 2026

1. Introduction

This appeal concerned only the sentence imposed for exposure, following a wider set of sexual and related offences for which the appellant received an overall sentence of six years and eight months’ imprisonment in the Crown Court at Oxford.

The exposure arose during the execution of police checks at the appellant’s home while he was subject to notification requirements following guilty pleas to indecent image offences. Two female officers attended; during the encounter the appellant assaulted one officer and later exposed himself to the other.

The key issue for the Court of Appeal was whether the eight-month consecutive custodial sentence for exposure was manifestly excessive, particularly given the existence of a sentencing guideline for exposure and the overall principle of totality.

2. Summary of the Judgment

  • The Court held that the exposure and assault on an emergency worker should be viewed together, with the exposure sentence reflecting the combined criminality.
  • Although the exposure guideline placed the offence in the lowest category (category 3), the Court accepted that aggravating features (including that the appellant was under arrest and offending occurred while on bail) justified moving outside the guideline into custody.
  • Nevertheless, eight months was “so far outside” the guideline as to be manifestly excessive.
  • The Court substituted three months’ imprisonment for exposure, to run consecutively, producing a new overall sentence of six years and three months.

3. Analysis

3.1 Precedents Cited

The judgment did not cite prior appellate authorities by name. Its reasoning instead turned on:

  • the structure and application of the Sentencing Council guidelines (exposure; arranging/facilitating child sexual offences; rape of a child under 13; sexual activity with a child), and
  • orthodox sentencing principles including concurrency/consecutivity and totality.

3.2 Legal Reasoning

(a) Correct approach to guideline selection for “arranging or facilitating”

Although not the live ground of appeal, the Court made an important corrective observation about the appellant’s lead offence (arranging or facilitating the commission of a child sexual offence). The sentencing judge had used the guideline for sexual activity with a child (s.9 Sexual Offences Act 2003).

The Court emphasised that the guideline for arranging/facilitating instructs sentencers to reference the guideline for the applicable substantive offence. On the facts as planned in the online communications, the substantive offence would have been rape of a child under 13 (s.5 Sexual Offences Act 2003), with a materially higher starting point and range. This context mattered to the Court’s view of overall proportionality, but it did not justify leaving an excessive exposure sentence in place.

(b) Exposure: guideline placement, departure, and the “manifestly excessive” control

The sentencing judge had wrongly stated there was no guideline for exposure. The Court held the offence fell within category 3 of the exposure guideline (no raised harm/culpability factors), carrying a non-custodial starting point and range.

However, the Court accepted that this was not a “routine” category 3 exposure:

  • the offending occurred while the appellant was under arrest;
  • it targeted attending police officers in the course of their duties;
  • it occurred when the appellant had been on bail for other serious offending.

Those aggravating features justified moving the sentence outside the usual guideline disposal into custody. But the Court treated the guideline as a controlling benchmark for proportionality: even where custody is justified, the sentence must not be inflated to a level untethered from the guideline’s scale. On the facts, eight months was an excessive escalation from a guideline whose normal range runs from financial penalty to community orders.

(c) Totality and structuring consecutive terms

The Court applied totality in two ways:

  • Internal totality within the incident: exposure and assault were to be considered together, with the exposure term reflecting the combined wrongdoing (the assault term itself—three months—was unchallenged).
  • Global totality across all offending: the Court considered the overall sentence after substitution and held six years and three months was not manifestly excessive, especially given the acknowledged leniency in the categorisation of the lead offence guideline.

The Court also endorsed consecutivity for the exposure sentence because the offending occurred while the appellant was on bail in relation to the other matters—signalling a distinct episode of criminality and a need for incremental punishment.

(d) The guilty plea credit error

The sentencing judge had reduced the exposure sentence for a guilty plea that did not exist (the appellant was convicted after trial) and then declined to correct the mistake. While the Court did not frame its disposal as correcting the “credit” arithmetic, it effectively re-sentenced the exposure offence on a correct basis and substituted a proportionate term.

3.3 Impact

  • Guideline discipline for low-level offences: even where aggravating features justify custody for an offence normally dealt with non-custodially (such as guideline category 3 exposure), the sentence must remain proportionate to the guideline’s scale and will be controlled on appeal by the “manifestly excessive” test.
  • Incident-based sentencing: where exposure and assault occur together against officers, the court may treat them as a combined course of conduct and structure sentences accordingly, rather than mechanically stacking terms.
  • Arranging/facilitating offences: the judgment reinforces that the correct reference point is the guideline for the intended substantive offence (here, rape of a child under 13), not a lesser sexual activity guideline where the planned conduct is more serious.

4. Complex Concepts Simplified

  • “Manifestly excessive”: the appellate threshold—whether the sentence is outside the range of reasonable sentences open to the judge, not merely whether the Court of Appeal would have chosen something different.
  • Sentencing guideline categories: guidelines often place offences into categories based on culpability and harm; category 3 usually indicates lower seriousness. Courts can depart, but must explain why and remain proportionate.
  • Totality: the requirement that the overall sentence for multiple offences is just and proportionate, avoiding both double counting and a sentence that is either crushing or unduly lenient.
  • Consecutive vs concurrent: consecutive terms add to the total (used where offending is distinct or merits separate punishment); concurrent terms overlap (used where offences form part of the same incident or where consecutive terms would over-punish).
  • Arranging or facilitating: where the offence is inchoate (planning/assisting), sentencing commonly keys to the seriousness of what was intended to happen (the “substantive offence”).

5. Conclusion

[2026] EWCA Crim 916 confirms that aggravating circumstances can justify a custodial sentence for a guideline category 3 exposure, particularly where the conduct occurs under arrest and against officers. But it also reasserts that guideline proportionality and totality constrain escalation: an eight-month term was impermissibly far beyond the guideline’s scale and was reduced to three months consecutive. The decision additionally underscores, albeit obiter in this appeal, that sentencing for arranging/facilitating must be anchored to the guideline for the intended substantive offence—here, rape of a child under 13.