A Wiltshire man has been sentenced for exposing himself at a bus stop.
Marcio Magalhaes, 53, of East Street, Warminster, admitted an offence of exposure when he appeared at Salisbury Magistrates' Court at the end of October 2023.
He was sentenced by the same court on Thursday, 30th November 2023.
Exposure is an offence under section 66 of the Sexual Offences Act 2003. It has a maximum penalty of 26 weeks' custody and/or an unlimited fine on summary conviction; 2 years' custody on conviction on indictment.
I have been contacted about this case by a professional court user, who has expressed some concerns about the nature of Magalhaes' conviction. This court user is not legally qualified, but they have a good understanding of the work of the court and the legislation it typically deals with. They are not a fellow Magistrate.
I have previously discussed the legislation pertaining to exposure in my (surprisingly popular) "Public Nudity and the Law: The Bare Facts" article.
By way of context, there are three elements to the offence of exposure:
- A person must intentionally display their genitals to another person;
- That display must be intentional;
- That display must be intended to cause the other person alarm or distress.
The offence is only made out if the court is satisfied, so that it is sure, that all three elements are present and fulfilled.
As you can see from the elements listed above, the intent of the accused is of pivotal importance to the commission of the offence. If there is any reasonable doubt that they had full intent or understanding of their actions, then the offence cannot be proved.
Turning back to the case at hand, Magalhaes was stood at a bus stop in Trowbridge town centre on a sunny September afternoon.
Traffic was heavy and cars were passing by slowly. A passenger in one car glanced across to the bus stop and saw Magalhaes stood there with his eyes closed, hands in the air and penis peeking over the waistband of his trousers.
The witness, who was concerned that children might get an eyeful, reported her observations to the police and Magalhaes was arrested. Reading between the lines, I do not think he has made any interview admissions in respect of his intent.
Magalhaes admitted the offence at the first hearing, having briefly consulted with the duty solicitor on that occasion.
He has eleven previous convictions for low-level, alcohol fueled offending, but nothing of a similar nature.
Comments of mitigation during his sentencing hearing, at which he was unrepresented, appear to cast doubt over the validity of his earlier guilty plea.
He told Magistrates that he didn't mean to expose his penis and never intended to cause any alarm or distress.
He said that he was intoxicated at the time of the incident and had been struggling with an alcohol addiction.
"I felt and I feel quite ashamed", he said.
"It was not my intention to show my privates. I'm very very embarrassed, it will never happen again."
Magalhaes told the court that he was financially dependent on his mother, who he lived with. He said that he taking positive steps to address his alcohol misuse and was due to start work with Turning Point.
The 53-year-old was said to be mortified when warned by the court Legal Advisor that he could be placed on the sex offenders register. The court user who got in touch with me was certainly struck by the apparent sincerity of his mitigation.
Magistrates were of the view that Magalhaes' offence was serious enough to merit a community order.
They sentenced him to an 11-month community order, with a 6-month alcohol treatment requirement and up to 25 rehabilitation activity days.
He was also ordered to pay £85 towards prosecution costs and £114 surcharge.
Crucially for him, as the order is only 11-months' duration, he will not be subject to the notification requirements of the sex offenders register.
So where are we at now? What can now be done if Magalhaes mistakenly admitted the offence for whatever reason? Perhaps his judgement on the day of the first hearing was clouded by alcohol? Maybe he misunderstood the advice of the duty solicitor? God forbid, maybe the duty solicitor was in that much of a hurry that they failed to advise appropriately?
Well the option is there for Magalhaes to make an application to the court to reopen the case using its powers under section 142 of the Magistrates' Court Act 1980. Having done that, if the court considers that his guilty plea was entered in error then it can set aside the conviction and allow him to enter a new plea.
Magalhaes can make that application by himself, but perhaps lacks the wherewithal and motivation to now do so. But if he has been incorrectly convicted on the basis of a misunderstanding, then that is a wrong that he should have the opportunity to right.
Perhaps one of the many kind-hearted solicitors and barristers working in the Wiltshire area can do a bit of pro bono work on his behalf.
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