England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No. 2007/05755/A7 Royal Courts of Justice The Strand London WC2A 2LL
		17 January 2008

LORD JUSTICE THOMAS: I will ask Mr Justice David Clarke to give the judgment of the court.

MR JUSTICE DAVID CLARKE:

1. On 7 September 2007, in the Crown Court at Lincoln, the appellant, who is now aged 44, pleaded guilty to all seven counts of an indictment. Five counts (counts 1-5) alleged taking an indecent photograph of a child. Counts 6 and 7 alleged voyeurism, contrary to section 67 of the Sexual Offences Act 2003. On 23 October he was sentenced on counts 2-6 to an extended sentence pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 comprising a custodial element of nine months and an extension period of three years, thus an extended sentence of 45 months. On counts 1 and 7 he received six months' imprisonment. He now appeals against sentence by leave of the single judge.
2. The somewhat unusual structure of these sentences arises from the different dates on which the offences were committed. The essence of this case is voyeurism which first became a criminal offence pursuant to section 67 of the 2003 Act, and for which the maximum determinate sentence is two years. By section 67(3) a person commits an offence if (a) he records another person B doing a private act, (b) he does so with the intention that he or a third person will for the purpose of obtaining sexual gratification look at an image of B doing the act, and (c) he knows that B does not consent to his recording the act with that intention.
3. The somewhat bizarre facts of this case are these. A young lady, who should not be identified in any report of these proceedings, lived close to the appellant. Her home was behind the appellant's home so that his kitchen window commanded a view of her bedroom window. She was between 14 and 19 years of age at the time of this series of offences.
4. On 26 November 2006, police officers executed a warrant at the appellant's home. They asked him if he had any indecent images on the premises. He took them to a safe in the kitchen and assisted in opening it. Inside were five video cassettes and five camcorder cassettes. In a bedroom camcorders and tapes were found. The tapes and video images were analysed. It was found that over a period of five years the appellant had been in the habit of taking video films of the young lady in her bedroom through her bedroom window without her knowledge. This filming had been carried out in the hours of darkness when the light was on in her bedroom and no curtain was drawn across the window.
5. The five counts of taking indecent photographs of a child relate to a total period between August 2000 and January 2002 when the young lady was 14 and 15 years of age. There is then because of the state of the law a gap of time to the next pair of counts, voyeurism, between June 2004 and June 2006, by which time she was an adult, she having been born in 1986.
6. In the basis of plea the appellant stated that in relation to the earlier offending he believed her to be in her late teens. It was also emphasised that the photographs were only of her from the waist up; that they did not include any form of sexual activity; and that they fell within the Oliver category at the lowest level (level 1). There was no distribution or showing to other people.
7. The young lady was unaware of this activity until after the appellant had been arrested. She submitted to the court a victim personal statement expressing her feelings of distress and disgust at having had her privacy invaded in this way during her "poignant growing-up years". Nothing which we say in this judgment should be taken by her or her family as in any way belittling those understandable feelings.
8. The appellant was of previous good character. There were before the court a pre-sentence report, a psychiatric report and a report from a specialist counsellor. The appellant denied to the probation officer that his actions were for sexual gratification. He referred to his history of mental illness. The assessment of him was that there was a medium risk of re-conviction. His mental health problems had caused him to be unemployed since 1995. He suffered from agoraphobia and was practically housebound. He had several previous periods of inpatient psychiatric treatment. The psychiatric report showed that he had been intermittently under psychiatric care for many years. He suffered from severe anxiety and agoraphobia, but not from a mental impairment under the terms of the Mental Health Act. He was dependent on valium. His problems manifested themselves in high levels of anxiety, avoidance of social situations and consequent inability to work or to sustain long-term relationships. He was a socially-isolated man. It was pointed out that a custodial sentence would impact adversely on his mental health.
9. However, since a period before his arrest on these matters he had been engaging with a specialist psychiatric counsellor. He was motivated to improve his life. He had continued to engage well, despite the high levels of stress following his arrest. He needed long-term continuing counselling in the community.
10. It is clear that the appellant needs support in the community to assist in his rehabilitation. But before that, the question for the court was whether a custodial sentence was required for these offences. In his sentencing remarks, the learned judge gave no reason for his conclusion that it was. He referred, as had been discussed before him in argument, to the problems of law in relation to the sentencing exercise and the particular statutory difficulties. We have considered the question of whether a prison sentence was required and was warranted in this case.
11. Counsel has helpfully referred us to authorities, one on each side of the custodial line. In R v IP [2005] 1 Cr App R(S) 102, [2004] EWCA Crim 2646, the appellant made surreptitious video recordings of his 24 year old stepdaughter in the shower. It was said that the recording of the images made the offence worse than simple spying but, as in the present case, there was no showing to other people or circulating copies or selling of the copies. The victim in that case was not a child. Bearing in mind the good character of the appellant and his guilty plea, a custodial sentence had not been justified.
12. By contrast, R v Turner [2006] 2 Cr App R(S) 51, [2006] EWCA Crim 63, related to offences committed against four women by a sports centre manager who rigged up a camera which could view the showers in the ladies' changing rooms. In that case the judge imposed a sentence of fourteen months' imprisonment. The Court of Appeal held that a custodial penalty in that case was justified, but reduced the sentence to one of nine months.
13. In this case this court takes the view that the appellant is a sad, lonely man with mental health difficulties, who is in need of continuing psychiatric help. In disagreement with the learned judge this court considers that a custodial sentence was not appropriate. We have additional material before us which was not available to the judge. The reports reveal a man who is compliant with the prison regime, but is poor at coping with it. He remains frightened and anxious. The only light on the horizon is that in very recent weeks he appears to have engaged successfully in art classes. The health care report from the prison shows that he will continue to need a great deal of support and reassurance.
14. In the circumstances this court proposes to quash the prison sentences imposed and to substitute a community penalty. The question as to the form of that sentence is one on which we have received great assistance from counsel and from Mr Gardner, the liaison probation officer for this court. If the court were to resort to the new form of community order under the Criminal Justice Act 2003, it could attach only to count 7 on the indictment, whereas the reality of this case is such that it is appropriate to attach the sentence to the bulk of the indictment. We therefore impose a Community Rehabilitation Order pursuant to the 2000 Act. It will contain requirements as set out in the pre-sentence report at paragraph 5.3, omitting the supervision requirement. It will contain a requirement to attend the Community Sex Offenders Groupwork Programme as directed by the responsible officer, to receive mental health treatment in accordance with the directions of the responsible supervising officer, and a requirement that the appellant does not communicate with, approach or contact the young lady who is the complainant in this case without the approval of the responsible officer. Those conditions will be attached to a Community Rehabilitation Order for 36 months and so far as the second and third of those requirements are concerned, be for that full period. The appeal is allowed accordingly.

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