England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 February 2014

1. MR JUSTICE GRIFFITH WILLIAMS: This is an appeal against sentence by leave of the single judge. On 25th October 2013 at the East Kent Magistrates' Court, the appellant pleaded guilty to one offence of possessing an extreme pornographic image, contrary to section 63 of the Criminal Justice and Immigration Act 2008 (offence 1), to four offences of possessing indecent images of children, contrary to section 160 of the Criminal Justice Act 1988 (offences 2, 3, 4 and 5) and to five offences of making an indecent photograph of a child, contrary to section 1(1) of the Protection of Children Act 1978 (offences 6, 7, 8, 9 and 10). He was committed to the Crown Court at Canterbury for sentence where, on 12th December, he was sentenced by His Honour Judge James to one month's imprisonment on offence 1 and to 18 months' imprisonment on each of the remaining offences, all sentences to be served concurrently, a total sentence of 18 months' imprisonment.
2. A Sexual Offences Prevention Order was made for 10 years. That order prohibits the appellant from:

"Using any device capable of accessing the internet, unless (i) it has the capacity to retain and display the history of internet use and (ii) he make the device available on request for inspection by a police officer or member of staff.

2. Deleting such history.

3. Using the internet to contact or attempt to contact any child known, believed or likely to be under the age of 16.

4. Possessing any device capable of storing digital images unless he makes it available for examination by a police officer or member of police staff.

5. Having any unsupervised contact with any child under the age of 16 other than (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child's parent or guardian, who has knowledge of his convictions."

Other orders were made but they are not the subject of this appeal and so they need not be considered.

3. The appellant is now 34 years old. He has no previous convictions. At the material times he was a deputy head teacher at a primary school in Ashford. On 23rd May 2013 officers from the Kent Police Child Exploitation Investigation Team executed a search warrant at his home when he was not present. They recovered computer equipment and digital media, including in particular two desktop computers which were in the main bedroom. When the appellant was arrested he was asked: "Have you either deliberately or accidentally downloaded images, indecent images of children?" He replied: "Probably, accidentally."
4. An investigation of the computers revealed indecent images of children. On one computer there was a large number of movies - one at Level 1 lasting 13 seconds, seven at Level 2 with a total running time of just under 2 hours, three at Level 3 with a running time of four minutes, 36 at Level 4 with a running time of approximately ten-and-a-half hours and one at Level 5 with a running time of 13 minutes. It was on that computer that the extreme pornographic image (offence 1) was located.
5. On the second computer there were one movie at Level 1 lasting 12 minutes, 37 at Level 4 lasting just under eight hours and two at Level 5 with a running time of 10 minutes.
6. We have a schedule in which some of those images are described. They were summarised by the sentencing judge as follows:

"Reference to the classification of the images cannot begin to describe the horrific nature of this type of material but to provide some indication, Level 4 is reserved for images depicting penetrative sexual activity involving children and adults, with Level 5 images depicting children in acts which involve sadism ...

The nature of the images found in your possession is a matter of considerable concern, since most of the 90 or so still images and around half of the 20 hours or so of video footage found in your possession depicted sexual abuse of children falling into levels 4 and 5. Some of the material involved the rape of children as young as six. It is also apparent that you had been accessing similar images for a protracted period."

When the appellant was interviewed under caution he confirmed his initial statement of having possibly accidentally downloaded indecent images but went on to clarify that some downloading had been deliberate. He claimed that the majority of his offences occurred during two specific periods of stress at work. He said that he had started with adult images but that grew and became more indecent over time, beginning with Level 1 and 2 and progressing to Level 4 images. He admitted storing indecent images of children sourced from the internet on his desktop computer. He admitted to using file sharing software in order to search for indecent images of children, in which he typed in specific ages and phrases. He described obtaining sexual gratification from watching children of either gender engaging in various sexual acts. When asked if he was sexually attracted to children he said: "I suppose the answer to that, based on the online images is yes, but I would not have done it in person." He said that he had been seeking images of children primarily between the ages of 10 and 14.

7. The probation officer reported:

"He informed me that at a young age he was diagnosed with Gorlin-Chaudhry-Moss syndrome, a genetic disorder that has a variety of impacts, including affecting his skin. As a result of this he described having low self confidence and says he was often bullied as a child which was apparently exacerbated by his condition whereby he had numerous operations to deal with the potential skin cancers and said he became self conscious of his appearance and therefore often avoided social settings. This social isolation increased over his school years and he told me that he has always been an individual who has limited social networks, preferring just one or two close friends than a large group of acquaintances.

[He] told me that he worked hard at school and university, obtaining a teaching qualification at Bath Spa University and quickly absorbed himself in his work rather than engage in social interaction with others. He described himself as very eager to please professionally and felt that he was developing a career he was good at and was very willing to work hard to succeed. [He] accepts that this was probably an attempt to deal with the obvious deficits in other areas of his life and says that he reached a stage where he was working every hour he could, offering himself no opportunities for social interaction with others ... [He] says he was hiding behind a professional mask which concealed his deep rooted lack of self confidence. [He] said he had several periods of intense stress at work which initiated his search for indecent images of children and as these stresses receded his need to access images diminished."

8. The probation officer commented that the appellant was extremely remorseful and appeared distressed when considering not only the victims in terms of the children in the images but also the hundreds of children and parents who are now uncertain about his motives for entering teaching and who entrusted their children with him on a daily basis. He was also aware of the shame he had brought upon his family who remained supportive of him and the impact on his professional integrity and the significant breach of trust that meant he would never teach again or be trusted with children.
9. The pre-sentence report contained this assessment:

"He is assessed as a low risk of further offending. Whilst his offending evidenced particularly distorted thinking, it would appear to have been linked to feelings of social isolation, poor coping skills and his somewhat questionable moral decision making about boundaries that he was crossing. [He] has begun to explore these issues at length and says that he has been so affected by his behaviour that he has lost any sexual desire to masturbate and no longer has any desire to view indecent images of children. As such his risk of reoffending would be assessed as low. That being said, there is still much work to be undertaken around his choices, distorted thinking and moral ambiguities and until he fully understands the reasons behind his decision to offend and the cycle he found himself in, then a small risk of further offending remains."

While the sentencing judge did not expressly identify the sentencing bracket in the appropriate guideline, it is clear that he had in mind "possession of a large quantity of Level 4 or 5 material for personal use only, large number of Level 3 images shown or distributed" and so offending with a starting point of 12 months' custody and a sentencing range of 26 weeks to two years' custody. Miss Luttman's written submissions that the offending was on the cusp of that bracket and the lower bracket is frankly unarguable and has not been advanced in this court.

10. The learned judge correctly identified the requirement for a higher starting point where the victim is a child or the victims are children under 13 years (paragraph 6A.9 of the guideline). He proceeded to identify two aggravating factors:

"You were not just a teacher but a deputy head with, as I understand it, specific responsibility for child protection of the pupils at your school. You would, as such, have received specific training about the dangers of the sexual exploitation of children. Many parents who have entrusted their children into your care over the years will be, frankly, horrified to learn that for a considerable period of your tenure you have been accessing images and video footage depicting acts of child rape and the sexual abuse of children for the purposes of sexual gratification. Whilst it is important for me to state clearly and unequivocally there has been no suggestion that you assaulted any children in your care, your offending ... still involves a significant breach of trust ...

...

I have given careful consideration as to whether I should treat your position and employment during the commission of these offences as a factor which demands a sentence outside the definitive guidelines. I have, after much consideration, decided that this would not be a fair approach. However, I do consider the hypocrisy of your circumstances and the fact that you were working directly with children of a similar age to those depicted being sexually abused as amounting to a significant aggravating feature which calls for a starting point for the consideration of sentence towards the very top of the relevant range."

The sentencing judge then identified the following matters of mitigation. First, that the appellant had lost his career, his livelihood and his reputation, all of which the sentencing judge accepted represented significant punishment in themselves. And then, it was clear that the appellant had both enthusiasm and ability as an educator and that it was a matter of regret that his skills and enthusiasm would no longer be able to be put to good use with children. And then, that he reduced the sentence to reflect the early admissions of guilt, his current medical problems and all that had been urged on his behalf by Miss Luttman in mitigation. He then passed the total sentence of 18 months' imprisonment to which we referred earlier.

11. In our judgment, it is a proper inference that the sentencing judge must have had a starting point of at least three years in mind to reflect the aggravating factors he identified and before discounting for the personal mitigation and for the full credit to which the appellant was entitled for his early guilty pleas.
12. Miss Luttman's primary submission is that there was no breach of trust and what the sentencing judge termed "the hypocrisy of the appellant's circumstances" (see above) could not amount to aggravating factors. We agree. With respect to the sentencing judge, none of these offences involved a breach of trust by the appellant as a teacher. The victims were not his pupils, but unidentified children abused by others and the fact that he was working with children, none of whom was assaulted by him, and none of whom was at risk of being assaulted by him, cannot in our judgment aggravate his offending. In our judgment, the starting point of 12 months' custody should have been increased to 18 months to reflect the young ages of some of the victims, but then reduced to 15 months to reflect the strong personal mitigation and finally discounted by one-third for the early guilty pleas and so resulting in a total sentence of 10 months' imprisonment.
13. We consider the Sexual Offences Prevention Order. We rehearsed the terms of the order earlier in this judgment. The appeal is limited to the prohibitions in paragraphs 3 and 5. Miss Luttman submitted that such prohibitions are ordinarily imposed to prevent contact by an offender with children under the age of 16. We were referred to Smith and Others [2011] EWCA Crim 1772 and to the following passages in the judgment of the court given by Hughes LJ (as he then was) in which the court considered Sexual Offences Prevention Orders:

"6. Necessity is made the starting point by the statutory test contained in section 104(1). The order may only be made where the court is:

'…satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.'

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8. We respectfully repeat the useful succession of questions identified by this court in R v Mortimer [2010] EWCA Crim 1303 and which must be addressed when the making of a SOPO is under consideration. They derive from the earlier judgment of Rose LJ in R v Collard [2004] EWCA Crim 1664, [2005] 1 Cr App R (S) 34.

(i) Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences?

(ii) If some order is necessary, are the terms proposed nevertheless oppressive?

(iii) Overall are the terms proportionate?

Other applicable regimes.

9. When considering these questions, it must be remembered that a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. No SOPO is needed if it merely duplicates such a regime. Nor must a SOPO interfere with such a regime. The following regimes must be considered.

(i) The sex offender notification rules. These derive from the Sex Offenders Act 1997 and are now contained in ss 80-102 Sexual Offences Act 2003 and in regulations made thereunder. They follow automatically upon conviction of relevant offences, which include most sexual offences. They require no order of the court. They require a convicted person to notify his local police station of his name(s), address(es), date of birth and NI number. He must then notify from time to time any address which he occupies for any period or periods totalling seven days in any year, and must do so every time before he travels, whether on work, on holiday or otherwise. He must give similar prior notification of any travel abroad, with flight details and place of accommodation. He must attend personally to give these various prior notifications and must submit to fingerprinting and photographing for identification purposes. As is well known, these requirements last for different periods according to the length or nature of sentence. In summary, they last indefinitely if the sentence is imprisonment for 30 months or more, for ten years if the term is more than 6 months but less than 30, for seven years if it is for 6 months or less, for five years if the sentence is non-custodial and for two years if there is a caution. The fixed periods, but not the indefinite period, are halved for those under 18 at conviction. In all cases, breach of the requirements is itself a criminal offence, punishable with up to five years' imprisonment.

(ii) Disqualification from working with children. Where offences involve children, the defendant will almost inevitably be disqualified from working with children in future, and indefinitely, either by a court order under section 28 Criminal Justice and Courts Service Act 2000 or by the Independent Safeguarding Authority placing the defendant on the barring list pursuant to the Safeguarding of Vulnerable Groups Act 2006 ('SVGA'). Each statute contains a definitive list of occupations and positions ('regulated activities') which a defendant subject to the disqualification or barring may not undertake. Mutatis mutandis, similar provisions apply to those who have committed sexual offences against other vulnerable complainants. Breach is a criminal offence, again carrying up to five years' imprisonment.

(iii) Licence. All defendants sentenced to imprisonment will be released under statute at the half way mark, and will then be on licence until the end of the sentence. The licence may endure for several years beyond the end of the custodial term, especially in the case of an extended sentence. If the sentence is a indefinite one (IPP or DPP) the licence will continue for ever, subject to the power of the Parole Board to lift it ten years after release if satisfied that it is no longer necessary. In any of these cases, the conditions of the licence will be framed at the time of release by experienced probation officers acting as offender managers. The sanction for breach of licence is not the commission of a criminal offence, but it is recall for such period up to the expiry of the licence as the Secretary of State deems appropriate. If the offence was a 'specified offence' within Schedule 15 of the Criminal Justice Act 2003 or if the Secretary of State takes the view either that the defendant will present a risk of serious harm to the public or that it is necessary for the protection of the public not to release him, his recall may be indefinite. Otherwise, it is likely to be for 28 days: s 255A(2) and 255B CJA 2003.

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22. Care must be taken in considering whether prohibitions on contact with children are really necessary. In Lea (supra) the defendant had been convicted of offences of viewing child pornography. The SOPO imposed contained provisions prohibiting him from having unsupervised contact with any child under the age of 16 except in the presence of a parent or appropriate adult, and from permitting any such person to be in any house where he lived or stayed. This court rejected the submission of the Crown that those provisions were justified in case the defendant graduated to contact offences. There was no indication whatever of any likelihood of such progression. The case is a good example of overuse of a SOPO. Preventive these orders are; it does not follow that anything is permissible. It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified."

14. We are satisfied there is no evidential base for including these prohibitions. First, the sentencing judge expressly stated that there was no suggestion that the appellant had assaulted any children in his care (see above) and secondly, the probation officer who carried out a careful and thorough risk assessment was satisfied that there was a low risk of further offending (see above). We observe that that risk of further offending relates to offences of this type and not to contact offences.
15. For all the above reasons, we allow this appeal to this extent. We quash the sentences of 18 months' imprisonment in respect of each of the offences 2 to 10 and substitute sentences of 10 months' imprisonment to be served concurrently. We quash paragraphs 3 and 5 of the Sexual Offences Prevention Order.
16. There was a victim surcharge order in the sum of £100. This was unlawful because not all the offending occurred after 1st October 2012, the date on which the Criminal Justice Act 2003 (Surcharge) Order 2012 came into force. We accordingly quash the victim surcharge order.
17. The sentence in other respects is unaffected by this judgment.