England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2011] EWCA Crim 3114

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		Neutral Citation Number: [2011] EWCA Crim 3114
		Case No. 2011/06637/A7

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

21 December 2011

B e f o r e :

LORD JUSTICE PITCHFORD
MR JUSTICE WILKIE
and
MRS JUSTICE SHARP DBE
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	R E G I N A
	- v -
	PHILIP OLIVER

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Mr A Fitzpatrick appeared on behalf of the Applicant
Mr N Coxon appeared on behalf of the Crown
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HTML VERSION OF JUDGMENT
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LORD JUSTICE PITCHFORD:

On 18 October 2011 at the Doncaster Crown Court the applicant pleaded guilty to an indictment containing two counts. In the first he was charged with possession of extreme pornographic images, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008. The particulars were that on 1 June 2010 he possessed three still images which were grossly offensive, disgusting or otherwise of an obscene character, portraying in an explicit and realistic way a person performing an act of intercourse or oral sex with an animal. In count 2 he was charged with a similar offence relating also to the possession on 1 June 2010 of eight moving images of a similar kind. On 18 November 2011 the applicant was sentenced to a period of six months' imprisonment. His application for leave to appeal against sentence has been referred to the full court by the Registrar.

The police had information that the applicant (who is now aged 54) had been taking part in an internet chat room. On 1 June 2010 the applicant's computer and laptop were seized from his home. The images to which we have referred were found. When arrested and interviewed on 30 September, the applicant claimed to have no recollection of the images and said that he was not sure how they came to be on his computer. He was plainly not telling the truth.

The applicant was of previous good character. He had been reported by a named individual who was not prepared to make a statement about the conversation in which the applicant had allegedly been involved. The applicant admitted fantasising over the internet about other men having sex with his wife, but denied that he had said anything about his daughters who were in any event aged 28 and 29 years.

The applicant had a career in the Prison Service. He rose to become governor at Her Majesty's Prison Doncaster and Assistant Director of Offender Resettlement. He retired from that position in August 2011, these matters having been revealed, electing to take redundancy.

A pre-sentence report pointed out the additional hardship of a custodial sentence for a man with the applicant's background. It recommended a community order with an unpaid work requirement and a curfew. The sentencing judge noted that at the time when the images were downloaded it was not an offence to possess them. Possession became an offence upon the commencement of section 63(1) of the Criminal Justice and Immigration Act 2008 in January 2009. The judge, unsurprisingly, did not accept that the applicant was unaware of the presence of the images on his computer. However, he agreed to sentence on the factual basis that, having downloaded the images, the applicant had not later re-accessed them. The judge concluded that an aggravating factor of the applicant's offending was that on 16 May 2009, following the criminalisation of extreme pornography, he downloaded a programme called "Team Viewer". This enabled persons other than the applicant to take control remotely of the contents of his computer. By so doing, the judge found, he was exposing himself to blackmail whilst serving as governor of the local prison. In his sentencing remarks the judge emphasised that it was no part of his duty to be a judge of the applicant's morals, but it was a consideration relevant to sentence that the applicant had willingly exposed himself to the danger of blackmail from this illegal material. By installing "Team Viewer" the applicant made the images available to others. For that reason, the judge concluded, the offences to which he had pleaded guilty passed the custody threshold.

The judge was handed testimonials from those who knew the applicant in his working environment and socially. He was clearly a man who had been well thought of. One correspondent in particular emphasised the extreme embarrassment and shame experienced by the applicant as a result of the publicity surrounding his arrest and conviction.

By section 67 of the 2008 Act the maximum sentence for possession of these particular extreme pornographic images was two years' imprisonment. There are no guidelines at present for such offences, although we note that the Sexual Offences Act 2003 guideline (at page 112) categorises images of children. The highest level is level 5, which embraces images of "sadism or penetration of or by an animal". Upon a prosecution under section 1 of the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1998 (as amended by section 45 of the Sexual Offences Act 2003), the possession of a small number of such images would attract a starting point of 26 weeks' custody, with a range of four weeks to 18 months' custody. The maximum sentence for offences of possession of such images is five years' custody -- more than double the maximum sentence for these offences under section 63 of the 2008 Act. In our judgment the public would be surprised if the seriousness of possession of adult images should be equated with those which involve images of children. The need to protect children from those who make such images enables the court to pass sentences which have a deterrent effect in relation to children. We conclude that on principle there is no narrow comparison to be made between images of children and those of adults.

We turn to consider the question whether these offences merited a custodial sentence. Since the images had been downloaded before they became unlawful, and since the learned judge sentenced on the basis that they had not thereafter been accessed, we would conclude that in the absence of aggravating factors the custody threshold would not have been passed. However, we agree with the judge that the later download of software which made these images available for distribution at the control of another does constitute an aggravating feature of the offence.

The applicant was, however, a man of exemplary character who, we conclude, has paid a high price in consequence of his exposure to shame and ridicule. We think that a sentence of three months' imprisonment following a trial, and two months' imprisonment after a timely plea of guilty, would have been sufficient punishment in the circumstances.

Accordingly, we grant leave to appeal. The sentences of six months' imprisonment will be quashed and they will by substituted by concurrent sentences of two months' imprisonment. To that extent the appeal is allowed.

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