England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		21 November 2002

LORD JUSTICE ROSE:

1. In R v Wild (No 1) [2002] 1 Cr App R(S) 157, this court sought the views of the Sentencing Advisory Panel in relation to offences involving indecent photographs and pseudo-photographs of children, particularly in relation to the question as to when the custody threshold should be regarded as having been passed. As a result of that request, in August 2002 the Panel published its advice to the Court of Appeal. That has been the subject of consideration today. At the court's request, the Crown were represented by Mr Dennis. He made no submissions. We are grateful for the Panel's advice and, as will emerge, save in one or two respects, we adopt it.
2. In R v Toomer [2001] 2 Cr App R(S) 30, the Court of Appeal set out some general principles applicable to sentencing for these kinds of offence, but since that decision the maximum penalties for the relevant offences have been increased by Parliament.
3. The statutory position is that, by virtue of section 1(1) of the Protection of Children Act 1978, it is an offence, in essence, to take or make an indecent photograph or pseudo-photograph of a child, or to distribute or show such photographs, or to possess such photographs with a view to their being distributed or shown, or to publish an advertisement conveying that the advertiser distributes or shows such photographs or intends to do so.
4. The maximum penalty for all of those offences, which was originally three years on indictment, was increased to ten years by section 41(1) of the Criminal Justice and Court Services Act 2000 in relation to offences committed on or after 11 January 2001.
5. The offence of possessing an indecent photograph or pseudo- photograph of a child under section 160(1) of the Criminal Justice Act 1988 was originally a summary offence with a maximum penalty of six months' imprisonment. But by virtue of section 41(3) of the Criminal Justice and Court Services Act 2000, it became an offence triable either way with a maximum penalty of five years' imprisonment. That provision likewise applies to offences committed on or after 11 January 2001.
6. Quite apart from the sentence imposed by the court, anyone convicted of or pleading guilty to an offence involving child pornography may be subject to a range of other legal consequences: namely, registration under Part 1 of the Sex Offenders Act 1997; court-ordered disqualification from working with children under sections 26-34 of the Criminal Justice Act and Court Services Act 2000; a list known as 'List 99' maintained by the Department of Education and Skills under the Education (Restriction of Employment) Regulations 2000 of people barred or restricted from employment as a teacher or worker with persons under the age of 19; and a list maintained by the Department of Health under the Protection of Children Act 1999 to prevent the employment of unsuitable people in child-care organisations.
7. It is to be noted that registration under the Sex Offenders Act is mandatory for all offenders sentenced or cautioned for a qualifying offence, which includes any of the offences to which we have referred under section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988. But there is no requirement to register for an offender who is given a discharge, whether absolute or conditional. Further, offences under both the 1978 and the 1988 Acts are qualifying offences for court-ordered disqualification from working with children if a custodial sentence of 12 months or longer is imposed.
8. In that statutory context, before turning to the Panel's proposals, it is worth pointing out that it is likely that the number of child pornography offences detected and prosecuted is only a small proportion of the real total. Furthermore, increased access to the internet has greatly exacerbated the problem in this area by making pornographic images more easily accessible and increasing the likelihood of such material being found accidentally by others who may subsequently become corrupted by it. This additional risk adds to the culpability of offenders who distribute material of this kind, especially if they post it on publicly accessible areas of the internet.
9. We agree with the Panel that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it.
10. 10. As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict. Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity, derived from the COPINE Project's description of images. We do not that agree with the Panel that COPINE typologies 2 and 3 are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panel's proposals, we categorise the relevant levels as:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.

11. As to the nature of the offender's activity, the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.
12. Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity. We agree with the Panel that the choice between a custodial and non-custodial sentence is particularly difficult. On the one hand, there is considerable pressure, demonstrated by Parliament increasing the maximum permissible sentence, to mark society's abhorrence of child sexual abuse and child pornography by the use of custody. On the other hand, there is evidence that sex offender treatment programmes can be effective in controlling offenders' behaviour and thus preventing the commission of further offences. We agree with the Panel's recommendation that, in any case which is close to the custody threshold, the offender's suitability for treatment should be assessed with a view to imposing a community rehabilitation order with a requirement to attend a sex offender treatment programme. We also agree with the Panel that the appropriate sentence should not be determined by the availability of additional orders, or by the availability of treatment programmes for offenders in custody.
13. That said, we turn to the particular factors relevant to the level of sentence. We stress that the proposals we make are guidelines intended to help sentencers. They are not to be construed as providing sentencers with a straightjacket from which they cannot escape. We bear in mind the current state of overcrowding in our prisons, and that a custodial sentence should only be imposed when necessary. We also bear in mind the public concern in this area to which we have already referred.
14. In our judgment, a fine will normally be appropriate in a case where the offender was merely in possession of material solely for his own use, including cases where material was down-loaded from the internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at Level 1. A conditional discharge may be appropriate in such a case if the defendant pleads guilty and has no previous convictions. But a discharge should not be granted, as we have earlier indicated, for the purpose of avoiding the requirement of registration under the Sex Offenders Act 1997.
15. Possession, including down-loading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children. But there may be exceptional cases in which the possession of a pseudo-photograph is as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect. It will usually be desirable that a charge or count in an indictment specifies whether photographs or pseudo- photographs are involved.
16. We agree with the Panel that a community sentence may be appropriate in a case where the offender was in possession of a large amount of material at Level 1 and/or no more than a small number of images at Level 2, provided the material had not been distributed or shown to others. For an offender with the necessary level of motivation and co-operation, the appropriate sentence would be a community rehabilitation order with a sex offender programme. We agree with the Panel that the custody threshold will usually be passed where any of the material has been shown or distributed to others, or, in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3; or (b) the offender has shown, distributed, or exchanged indecent material at Level 1 or 2 on a limited scale, without financial gain. A custodial sentence of between six and twelve months will generally be appropriate for (a) showing or distributing a large number of images at Level 2 or three; or (b) possessing a small number of images at Levels 4 or 5.
17. In relation to more serious offences, a custodial sentence between twelve months and three years will generally be appropriate for (a) possessing a large quantity of material at Levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at Level 3; or (c) producing or trading in material at Levels 1 to 3. Sentences longer than three years should be reserved for cases where (a) images at Levels 4 or 5 have been shown or distributed; or (b) the offender was actively involved in the production of images at Levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images. An offender whose conduct merits more than three years will merit a higher sentence if his conduct is within more than one of categories (a), (b) and (c) than one where conduct is within only one such category.
18. Sentences approaching the ten-year maximum will be appropriate in very serious cases where the defendant has a previous conviction either for dealing in child pornography, or for abusing children sexually or with violence. Previous such convictions in less serious cases may result in the custody threshold being passed and will be likely to give rise to a higher sentence where the custody threshold has been passed. An extended sentence may be appropriate in some cases, even where the custodial term is quite short: see R v Nelson [2002] 1 Cr App R(S) 565.
19. The levels of sentence which we have indicated are appropriate for adult offenders after a contested trial and without (save to the extent that we have referred to them) previous convictions.
20. There are specific factors which are capable of aggravating the seriousness of a particular offence. We identify these as follows:

(i) If the images have been shown or distributed to a child.

(ii) If there are a large number of images. It is impossible to specify precision as to numbers. Sentencers must make their own assessment of whether the numbers are small or large. Regard must be had to the principles presently applying by virtue of R v Canavan, Kidd and Shaw [1998] 1 Cr App R 79, [1997] EWCA Crim 1773.

(iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored.

(iv) Images posted on a public area of the internet, or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material, will aggravate the seriousness of the offence.

(v) The offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender's own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.

(vi) The age of the children involved may be an aggravating feature. In many cases it will be difficult to quantity the effect of age by reference to the impact on the child. But in some cases that impact may be apparent. For example, assaults on babies or very young children attract particular repugnance and may, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct may manifestly (that is to say, apparently from the image) have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7.

21. So far as mitigation is concerned, we agree with the Panel that some, but not much, weight should be attached to good character. A plea of guilty, by virtue of section 152 of the Powers of Criminal Courts (Sentencing) Act 2000, is a statutory mitigating factor. The extent of the sentencing discount to be allowed for a plea of guilty will vary according to the timing and circumstances of the plea. The sooner it is tendered, the greater is likely to be the discount: see, for example, R v Barber [2002] 1 Cr App R(S) 548.
22. These kind of offences very rarely result in the prosecution or cautioning of offenders under the age of 18. When such a person has to be sentenced, the appropriate sentence is likely to be a supervision order with a relevant treatment programme. We draw attention, however, as did the Panel, to the apparent present shortage of adequate treatment programmes for young sex offenders.
23. Against that background, we turn to the two applications and the appeal before the court. The applicant, Mark Oliver, pleaded guilty before the Wimbledon Magistrates, on 30 May 2002, to six offences of making indecent photographs or pseudo-photographs of a child. Having been committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act, he was sentenced at Kingston upon Thames Crown Court, on 5 July 2002, by His Honour Judge Binning, to an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, consisting of a custodial term of eight months and an extended licence period of 28 months. The judge erroneously, as will emerge, purported to order that the applicant register indefinitely under the Sex Offenders Act 1997. His application for leave to appeal against sentence, which was based on the order for registration alone, has been referred to the full court by the Registrar.
24. The facts were these. On 16 November 2001, a search warrant was executed at the applicant's home. His computer and some floppy disks were seized. They were found to contain approximately 20,000 images of children, some as young as 6 or 7, performing oral sex on adult males in some instances, and in others being anally raped, that is to say the conduct was at Levels 3 and 4.
25. On 15 January 2002, on arrest, the applicant declined to comment, but he read a prepared statement in which he said that only he and his wife had access to the computer and that he had received e-mails of an adult nature but never knowingly down-loaded images of children. He was bailed. He returned for a further interview on 7 May, at which stage he declined to comment, save to say that he had never seen some of the images before. But on being further interviewed, he accepted that he had down-loaded images from the internet, had saved images on floppy disk, and had viewed them when his wife was out. He said that this interest was an addiction.
26. In passing sentence, the learned judge referred to the good character of the applicant, who is 41 years of age and had served as a special constable. As the learned judge pointed out, the images clearly involved prepubescent girls, among others, involved in explicit sexual acts with adult males. The mitigating factors to be found in the circumstances of the case would go, in the judge's estimation, to lessen the custodial term of the sentence, but an extended sentence was imposed to provide an opportunity for the applicant to address his problems. There was a pre-sentence report before the judge, dated 1 July, which suggested a community rehabilitation order with a condition of attending a sex offender programme, and there was also (as there is before this court) a character reference upon the applicant.
27. In our judgment, the sentence passed was entirely appropriate and in accordance with the guidelines which we have indicated. The order for indefinite reporting, however, was one which the judge did not have the power to make. The sentence of imprisonment for the purposes of section 1 of the Sex Offenders Act 1997 was eight months, not 36 months, ie the custodial term under section 85(2) of the Powers of Criminal Courts (Sentencing) Act 2000: see R v S (The Times, 29.8.2000).
28. The reporting requirement, by virtue of the statute, was therefore ten years. This, in our judgment, is not a matter which gives rise to a ground of appeal. The reporting requirement is not part of the sentence, but follows automatically by virtue of section 1(4) of the Sex Offender Act 1997 from the conviction and sentence: see R v Rawlinson (The Times, 27.10.99).
29. Clearly, it is desirable in everyone's interest that he should indicate the consequence of his sentence, and should do so correctly. But if he is mistaken in the order which he purports to make under the 1997 Act and if either he or counsel notice his error, it is one which can be corrected in the usual manner within 28 days by the Crown Court Judge. But, for the reasons which we have given, Oliver's application is refused.
30. The applicant Michael Hartrey appeared before magistrates on 23 April 2002, and pleaded guilty to one charge of distributing an indecent photograph or pseudo-photograph of a child, and one charge of making an indecent photograph or pseudo-photograph of a child. He was committed to the Crown Court for sentence. At Oxford Crown Court, on 7 June, by His Honour Judge Morton-Jack and two justices, he was sentenced to concurrent terms of three years' and one year's imprisonment respectively. His application for leave to appeal against that sentence has been referred to the full court by the registrar.
31. There was a co-accused called Margetts who, having pleaded guilty to two similar offences, was likewise sentenced to three years' imprisonment. His application for leave to appeal against sentence was refused by the single judge.
32. The facts were that, between 29 May 2001 and 20 March 2002, the applicant distributed indecent photographs of children, contrary to sections 1 and 6 of the 1978 Act and, between the end of May 2001 and 1 August 2001, made indecent photographs of children, contrary to sections 1 and 6 of the same Act. He was arrested on 20 March 2002 near his place of work, and two computer systems were thereafter seized and analysed. There were a total of 20,000 indecent images and 500 computer movie files of child abuse identified. That material was provided to the court on a lap-top computer. It includes -- and this court has seen the same material -- images of naked children of both sexes from the age of about 6 and upwards, performing sexual acts on other children and adults. Some of the images give the appearance of reflecting consensual conduct, but there are some in which the children are clearly in distress. There are close-ups of vaginal and anal penetration, and one clip of the attempted rape of a girl aged about 12. Clearly, therefore, the material was Level 4.
33. The applicant and Margetts were two of thirteen people in various parts of the world, including other parts of Europe, Canada and the United States, who were arrested at about the same time. All of them were members of a group called "Round Table". It was said that there were 35 members of that group who had exchanged and down-loaded images via the internet. The system used was sophisticated. It employed the use of passwords, which were regularly changed, and encrypted files. The applicant had been invited to join the group after it had already been established by others. It operated on a secure channel. Each member, when their computer was switched on, acted as a server, allowing other members of the group to gain access by use of their own computer identities and passwords. They were then able to down-load the material from the server to their own computer. There was no suggestion, so far as this applicant is concerned, that he was responsible for making any of the photographs in the sense of having actually taken them himself. His activity was confined to down- loading the material.
34. In interview he was very candid. He said that he had initially been drawn to adult pornography sites in 1997, but that this had led to an interest in images of female children. From the time, in January 2002, when he had joined the Round Table, he had visited the sites daily until his arrest near the end of March. He accepted that he had traded images on a one-to-one basis with other member of Round Table. The material, being password-protected, was not accessible to his wife or others. He accepted that he had become involved in a chat room for children in other parts of the world and, in that connection, had represented himself as a young man aged 15 or 16. He had talked to girls in their early or mid-teens. He provided assistance to the police from a technical perspective in pursuit of their investigations because he, the applicant, was employed in designing tele-communications software.
35. The learned judge concluded, rightly, that only custody could be justified. He referred to the substantial number of images and to the extreme nature of many of them. He referred to the visible distress of the children in some of the photographs. He referred to the distribution initially occurring within the group of 35. But, as the judge rightly pointed out, it was impossible to know what other connections those 35 persons may have had. The judge referred to the applicant's good character, his candidness with the authorities, his co-operation, his plea of guilty, the references upon him, and the psychiatric and pre-sentence reports which were available.
36. The applicant is 35 years of age and was earning a substantial salary in the Information Technology industry. The pre-sentence report referred to the development of an obsession about down-loading and distributing the images daily. It was unclear, according to the author of that report, whether the applicant's remorse was in recognition of the consequences for himself or for the victims. He could present a risk of harm to children, and there was some risk of re-offending. On the other hand, he had expressed an apparently genuine willingness to address his behaviour through treatment. A proposal was made for a community rehabilitation order with treatment through a sex offender work group programme.
37. The psychiatrist, Dr Bullard, to whose report of 16 May 2002 Miss Drake, on the applicant's behalf, drew specific attention, referred to the applicant's interest in pornography being that involving girls over the age of 12. He realised that down-loading pornography was a form of child abuse and he expressed shame for his behaviour. He saw his interest sexually in children as a hobby or addiction. His sexual relationships with women had been infrequent and unsatisfactory.
38. Miss Drake rightly conceded that the level of pornography here involved is Level 4. But she stresses that there was no commercial aspect, in the sense of financial gain to the applicant. She stressed that the period of a little less than three months during which the applicant had acted as we have described was a comparatively short one, and many of the thousands of down-loaded images had probably not been looked at by the applicant himself. This is not, she submitted, a case involving a breach of trust, and there are the character references which speak highly of the applicant. The part of doctor Bullard's report to which she specifically drew attention was that the applicant is not likely to abuse children himself. He is at present serving his sentence in Bullingdon, where there is available to him a sex offenders treatment programme in which he is participating, from which he is benefiting, and which is likely to be completed in February 2003.
39. All of these matters we take into account. This was a case of distribution of a large number of Level 4 photographic images of victims, some of whom displayed obvious distress, and some of whom were apparently unconscious or semi-conscious by virtue of drugs.
40. In our judgment, a sentence of three years on a guilty plea was the minimum appropriate in accordance with the guidelines which we have indicated. This application is therefore refused.
41. The appellant Leslie Baldwin appeared at the Central Criminal Court on 26 July 2001 and, on 18 March 2002, was sentenced by His Honour Judge Paget QC, having pleaded guilty on the earlier occasion to ten counts. In relation to four counts of indecent assault on a female, contrary to section 14 of the Sexual Offences Act 1956, he was sentenced to three years' imprisonment concurrently; in relation to four counts of taking indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978, he was sentenced to two-and-a-half years' imprisonment concurrently on each, and concurrently also to the sentence for indecent assault; for two counts of distributing indecent photographs of a child, contrary to section 1(1)(b) of the 1978 Act, he was sentenced to two-and-a-half years' imprisonment, concurrently on each and concurrently to the other sentences to which we have referred. He pleaded not guilty to one count of conspiracy to distribute indecent photographs of a child, and that was ordered to remain on the file on the usual terms. The judge also ordered that the appellant should remain subject to supervision on licence for the whole of the three-year term, pursuant to section 86 of the 2000 Act. He appeals against sentence by leave of the single judge.
42. The offences were committed during a three-month period in 1990. He was not arrested until 25 October 2000. The victim of all the offences was the daughter of a family friend who lived nearby, and who at the time was 8 or 9 years old.
43. Matters came to light, so far as the police were concerned, when they recovered a number of indecent photographs of the girl at the home of a man called Levene who became a co-accused of the appellant. The photographs had been taken at the appellant's home and showed the girl naked from the waist down. A video tape was recovered from another man who has subsequently died, which showed the victim and the appellant together in the appellant's home. Depicted in the video were four indecent assaults in which the appellant placed his fingers into the vagina of the girl and touched her vagina over her clothes.
44. When he was interviewed, following his arrest, the appellant told the officers that the assaults had taken place when the victim had come to stay the night, and had occurred during a period of about three weeks, ten years or so previously. The assaults had been confined to the conduct to which we have referred. No one else had been present.
45. The appellant's home was searched by the Paedophile Squad shortly after the video was made, but no material was found at that time. The appellant was so devastated by what had occurred that he disposed of the video camera. Indeed he was so overwhelmed by guilt that he told the girl's mother about the pictures which he had taken. He gave the video tape to a friend. As we have said, a copy of the tape was subsequently recovered from the co-accused Levene, and another copy from another man.
46. So far as co-accused are concerned, a man called Romig was sentenced to three years' imprisonment, having pleaded guilty to one count of indecent assault, one of conspiracy to distribute indecent photographs, one of taking indecent photographs of a child, and one of making an indecent photograph of a child. A second co-accused, Levene, to whom we have already referred, was sentenced a total of six years' imprisonment, but the offences to which he pleaded guilty included a number of offences of unlawful sexual intercourse with a girl under 13, for which he was sentenced to six years, concurrent sentences being imposed in relation to other offences involving child pornography. Yet another co-accused, who was 81 years of age when sentenced, received a suspended sentence, having pleaded guilty to two counts of taking indecent photographs of a child and one of distributing indecent photographs.
47. In passing sentence, the learned judge said that the harm done by the sexual abuse of children for the purposes of such photography was incalculable, and the court had to punish the conduct and try to deter others. The judge took account of the fact that the activity giving rise to the appellant's appearance before the court had taken place ten years before, and that the appellant had sought help and had not re-offended. The judge also took into account the appellant's early plea of guilty.
48. The appellant is 51 years of age. He has many previous convictions since 1967, predominantly for offences of dishonesty, but also including possessing a controlled drug and criminal damage. He has served three previous custodial sentences, most recently when, in March 1988, he was sentenced to 12 months' imprisonment for possessing a controlled drug. He had no previous convictions for sexual offences of any kind. The pre-sentence report before the judge and before this court referred to the traumatic childhood endured by the appellant, characterised by parental conflict, separation and abuse. It also referred to some insight by the appellant into the offences on the victim's life. It referred to the support provided by his wife and counselling given to the appellant after he had admitted these matters to his wife. The report referred to the risk of re-offending without an opportunity to undertake an intense and structured programme specifically focusing on the offending. It recommended a community rehabilitation order with a condition of a sex offender group work programme. The psychiatrist's report referred to the appellant's preoccupation with sex since his teenage years, exacerbated by the use of drugs and alcohol. He is not, however, a paedophile. He has addressed his drug, alcohol and sexual problems since confessing these matters to his wife, who continues to support him. There are before the court, as there were before the judge, a number of references speaking well of him, and a letter from the prison drug rehabilitation programme, stating that the appellant has shown an understanding of his problems and has while in prison, completed an intensive day treatment programme at a chemical dependency centre.
49. The submission which is made by Mr Hooper on behalf of the appellant, rightly, is that this is an unusual case, in that these offences took place more than ten years ago. The appellant has shown remorse for his conduct, and he has sought to address his problems which gave rise to the offences. Mr Hooper stresses that the appellant has actively sought help, and, furthermore, that his behaviour is known to his neighbours. Mr Hooper's submission is that protection for children could best be achieved by a community rehabilitation order permitting more intensive and continuing treatment by way of a sex offender treatment programme. Mr Hooper also submits that there is a degree of disparity in that the appellant received a sentence of three years' imprisonment, the same sentence as that imposed on the co-accused, Romig, who was involved in a wider range of offences than the appellant. Mr Hooper submits that there was no commercial gain arising from the distribution, which was on a very limited scale to one person and was not marked by reciprocation of material from the person to whom the appellant gave the video. Mr Hooper submitted that the seriousness of the appellant's conduct should not be categorised, as might otherwise be appropriate, at Level 4, by reference to the guidelines which we have enunciated, but should be regarded, in the exceptional circumstances of this case, in whatever manner justice demanded, resulting, as we understand it, in a non-custodial sentence.
50. There is no substance in the argument based on disparity. This appellant was the man who not only made the photographs which were distributed, but he was himself the person taking part in the indecent assault which the video recorded. It was, as it seems to us, necessary for the learned judge, in approaching the difficult sentencing exercise in this case, to take into account the two elements of the appellant's conduct: the indecent assault, which involved digital penetration of a comparatively young girl, and was therefore of itself a serious assault; and the photography, whether this is properly to be regarded as calling for a consecutive sentence, or, as the judge approached it, by imposing a concurrent sentence.
51. At the time when these offences were committed, the maximum sentence permissible was one of three years' imprisonment so far as the pornography offences were concerned. The judge, as we have indicated, passed a sentence of two-and-a-half years in relation to that aspect of the case.
52. We bear in mined the unusual features of this case, and the submissions which Mr Hooper has made. But, in our judgment, the sentences passed by the learned judge cannot properly be criticised. The pornographic offences, had they been committed today, would have attracted sentences appropriate for grave offences relevant to Level 4 conduct. Indeed, if these offences of indecent assault and pornography were being dealt with today by reference to offences recently committed, there could, as it seems to us, have been no complaint, even following a plea of guilty, if a sentence of the order of five or six years' imprisonment had been passed.
53. In our judgment, it is impossible to contend, even taking into account the lower maximum applicable to the pornographic offences, that the sentences, structured as they were by the learned judge, are manifestly excessive. Accordingly, this appeal is dismissed.