England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14th November 2006

1. SIR IGOR JUDGE: On 14th June 2006, at North Somerset Magistrates' Court, Paul Alfred Howe pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 25th July 2006 in the Crown Court at Bristol before His Honour Judge Ticehurst, he was sentenced for 30 offences of making indecent photographs or pseudo-photographs of children to imprisonment for public protection.
2. The judge assessed the period to be specified under section 82A of the 2000 Act as two-and-a-half years. He took a starting point of 5 years. That was made up of the unused period of a licence, to which we shall refer in a moment, which was almost exactly 1 year and 4 years consecutive, to the instant 30 offences which were before the court. In addition to those sentences appropriate orders were made in relation to notification confiscation and so on, and it is unnecessary for the purposes of this case to analyse those further. The application for leave to appeal against sentence has been referred to the Full Court by Rafferty J.
3. The applicant was born in 1964. In July 2002, at the Crown Court at St Albans, he was sentenced to a total of 4 years' imprisonment, for indecent assault on a child and for making indecent photographs or pseudo-photographs of children. He was released from that custodial term in November 2004. Almost exactly a year later, on 15th November 2005, he was using a terminal at an Internet cafe at Weston-super-Mare when a fellow customer saw him accessing pornographic sites. The customer contacted a member of the staff, who contacted the manager, who attended the cafe and went into the next booth and observed what the applicant was doing. He saw that the applicant was viewing images of females who appeared to be in their teens and were wearing school uniforms. The manager then contacted a friend who was proficient in the technicalities of the Internet and inquired if he could access what the applicant was viewing without the applicant discovering.
4. This exercise then took place, and produced an image of a girl aged 14 or 15 in a provocative stance. The image immediately contacted the police, who came and arrested the applicant.
5. A datastick was seized from him along with a datastick from the terminal he had been using. The images on those datasticks were analysed. They were found to contain a total of 382 indecent images of children, 278 were at level 1, 19 at level 2, 32 at level 3 and 53 at level 4.
6. The first 29 offences in the list committed to the Crown Court were specimen offences, covering 12 images at level 1, six at level 2, five at level 3 and six at level 4. The final offence covered the remaining images.
7. Our attention has been drawn to the fact that there were no images at level 5, and none of the images at level 4 were what is described as "moving images". It is further pointed out that it was not alleged that the applicant was in the production of this material for the purposes of distribution.
8. The pre-sentence report provided a very careful analysis of the applicant, his previous offending and the particular matters of immediate relevance. The report underlined that the applicant had been a man of good character with a successful career, who had committed offences for which he was convicted in July 2002. It considered the risk of reoffending, and predicted that the risk of reoffending now, in the light of the offences committed so soon after release from prison, suggested that, untreated, the risk would be high and probably in the region of 80 per cent. As to the nature of the harm, it was pointed out that, of course, the making of the photographs was not in itself a contact crime, but the whole concern of this particular legislation is that, however the viewer may be behaving, the images are provided as a result of the abuse of real children, who are being exploited by real adults for the sexual gratification of others.
9. The report, in a passage under "proposed sentence", analysed a variety of different aspects of the case, beginning by regarding as an alarming feature that these offences raised the possibility that the applicant presented a real and present danger to children. The writer of the report did, however, examine a report from a private therapist, Glynn Hudson-Ali, from whom by now the applicant was receiving treatment. The object of the treatment was to enable the applicant to gain a better understanding of what was driving him to commit these offences. The writer of the pre-sentence report commented that although he had no particular details of the information from the Thames Valley Sex Offender Programme, there might be sufficient evidence to conclude that the applicant could be safely treated in the community. It is important, however, to emphasise that that suggestion was very carefully guarded indeed.
10. The judge had before him the therapeutic report to which reference has already been made. Our attention was drawn to the passage in which the writer of the report addressed the applicant's "dangerousness". It referred to the previous indecent assault, when the applicant touched the genitals of a child at his home when he was in a drunken state. It then addressed the way in which the applicant had progressed and what had happened to him thereafter, and assessed the risk that the applicant represented to children in the area as "minimal", and the risks either to his own child or members of his immediate family such as nephews or nieces as "negligible".
11. Concern is expressed about the risk of the applicant returning to the Internet, which was much higher, put in mathematical terms at perhaps 30 per cent. We do not read paragraph 7.5, from which we have just quoted, as directly addressing the issue of the danger posed to children by the applicant continuing to look at and use the Internet. In the context of the risk being minimal, what the writer was addressing was the risk of any direct physical assault on children. For the present purposes the judge was prepared, and we are prepared, to approach the case on the basis that that is no longer in issue. What matters is the risk to children if the applicant were to return to look at the material of the kind which brought him before the court on this occasion.
12. The judge concluded that only an immediate custodial sentence was justified. He was particularly concerned, as we are, about the fact that these offences were committed within 12 months of the applicant being released from prison for offences of a similar nature. He, of course, gave credit to the applicant for his guilty pleas but decided that the sentence could not be suspended. He then examined, as he was required to do, the nature of the risk posed by the applicant. He came to the conclusion that there was a significant risk to the public of committing further specified offences. He acknowledged that making indecent photographs or pseudo-photographs is not in itself a crime which involves, and in this case did not involve, the making of direct personal contact with children. Nevertheless, as he explained and we have observed, people who look at images of this kind are watching real children. The process involves the exploitation of real children for the purposes of sexual gratification. And, as again is plain, at least some of the market in this material exists because there are those who wish to examine it and derive satisfaction from doing so.
13. Having examined the evidence the judge concluded that the applicant presented a significant risk of substantial harm to children. He based that on the pattern of misconduct. Accordingly he decided that a sentence of imprisonment for public protection was appropriate. He then examined the appropriate level of sentence, for, if the case had proceeded as a determinate case, he concluded that 12 months of the unserved portion of the licence period should be served, followed by a 4-year sentence for those offences. That sentence was based on the number of images at level 4, and the significant feature that these offences had been committed so shortly after the release from the previous sentences. As the judge put it, the appellant had clearly not learned the dangerousness and the harm that his own behaviour could create.
14. Having reached a total sentence of 5 years on a determinate basis, he halved that, as he is required to do by statute, hence the two-and-a-half years period.
15. The case was referred to the Full Court by the Single Judge on the basis that there may have been some error in the way in which the matter had been referred to the Crown Court, and whether, on that basis, the court may have passed an unlawful sentence on what the judge described as count 9 and count 31.
16. What has happened is that the judge was wrongly informed that the sentence on offence 9 was unlawful, but in fact that offence had been withdrawn, so was never before the sentencing Crown Court.
17. As to offence No 31, in relation to the Crown Court, that was offence No 30. The point that there arises then is that offence 30, in the Crown Court, referred to images created between 21st June 2005 and 16th November 2005.
18. Somewhere that too appears to have been an error. However we are not sure of that, because we are told by counsel that in Magistrates' Court the relevant starting was put at January 2005, rather than June 2005. That has this significance: if the offence was committed before the beginning of April 2005, in relation to this count only, a sentence of imprisonment for public protection would not have been a sentence available to the judge. This would not be an unimportant technicality, but a point of jurisdiction.
19. If the offence was committed between 25th January and 16th November, the allegation spanned the date when the relevant statutory provisions came into force. Our attention has been drawn to section 234 of the Criminal Justice Act 2003, which reads:

"Determination of day when offence committed.

Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of section 229 to have been committed on the last of those days."

In other words, section 234 is a deeming provision.

20. It is, however, a provision which addresses section 229, and that concerns the assessment of dangerousness and the way in which the Court should approach that decision. It is not directed to sections 225 to 228, which are the offences which actually create the sentencing powers which are now under consideration.
21. We shall simply observe that if section 234 is to be treated creating a power to pass a sentence of greater severity than was available at the time when the offence was committed, there would be significant problems with retrospectivity, and Article 7 of the European Convention of Human Rights. If section 234 is simply evidential so that the court should apply a presumption, when no other evidence about the date when the offence was committed is available, then perhaps the difficulty would not arise. The evidence to show that the offence was committed before April 2005 would be there, if it were available and would speak for itself.
22. Our very tentative view would be that section 234 should be read in context with section 229, which, as we have already indicated, is evidential, and directed to the assessment of whether or not the particular offender represents a danger. In practical terms in this case, however, the decision is academic, which is why we do not resolve it.
23. In relation to offence No 30, whether or not there is an error in the committal papers about the January, rather than 25th June 2005, date, our pragmatic view is that we should simply remove the order for imprisonment for public protection made under offence 30. We emphasise that it is a pragmatic approach to his practical problem which arises in this case. It makes absolutely no difference to the sentence imposed on the applicant, and there are no circumstances in which our decision is to be regarded as a precedent.
24. We can now come to the essential grounds of appeal. First it is said that the judge was wrong to find the level of risk appropriate to found an order of imprisonment for public protection. We have examined the evidence in the course of this judgment. In our view, the judge was fully entitled to reach the conclusion that he did, and that the applicant was properly to be regarded as someone who fell within the meaning of dangerousness for the purpose of the order of imprisonment for public protection. That was based on the original offences 2002 offences, the commission of further similar offences, in 2005, and the assessments made in the reports.
25. Ultimately, of course, the decision is for the judge. We can see no reason for interfering with it. The other submission is that, even if that first argument fails, the period of 4 years as the starting point for the assessment of the determinate sentence was manifestly excessive. We have in the course of the judgment already indicated that the absence of level 5 images and the absence of moving images at level 4, and the actual involvement of the applicant in this material, who, as was pointed out to us and again as we have narrated, was not involved in the production for the purposes of distribution.
26. We have stood back from the sentence imposed. We have come to the conclusion that the sentence was, in the context of the guidance given in Oliver, and on the basis of the applicant's plea of guilty, a severe sentence. We have nevertheless concluded that it was within the appropriate range of sentence for these offences by this offender. In those circumstances, the sentence was not manifestly excessive. We shall not interfere with it. Accordingly the application for leave to appeal save in relation to offence No 30 will be refused. As to offence No 30, we shall simply leave in place the determinate sentence which the judge imposed but the sentence of imprisonment for public protection on that count only will be quashed.