England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 25 January 2017

LORD JUSTICE TREACY:

1. This is an appeal against sentence by leave of the single judge.
2. On 26 August 2016 the Appellant, who had previously pleaded guilty at an early stage, was sentenced in the Crown Court at Durham to a total of 32 months' imprisonment. An indefinite sexual harm prevention order was also made.
3. There were four counts on the indictment. Counts 1, 3 and 4 involved child pornography. Count 2 did not. Count 1 alleged possession of 80 prohibited images of children contrary to sections 62 and 66 of the Coroners and Justice Act 2009. These were not images of real children, but pseudo-photographs. All such images in this count involved children performing acts of sexual intercourse with a young male.
4. Count 3 was an offence of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. This charge alleged that between February 2013 and October 2015 the Appellant made a quantity of indecent photographs of children, namely those recovered from a Hitachi external hard drive. There were 1,092 category A images, 1,485 at category B and 2,410 at category C.
5. Count 4 was also brought under the 1978 Act. The allegation related to a different piece of equipment, a Western Digital hard drive. The Appellant had between 1 August and 21 October 2015 made 184 category A images, 178 at category B and 188 at category C. In the cases of both counts 3 and 4 the allegation of making indecent photographs was in the sense of downloading them rather than creating images in the presence of a child.
6. Count 2 was a charge of possessing extreme photographic images contrary to section 63 of the Criminal Justice and Immigration Act 2008. This count did not involve children. It consisted of possession of 53 extreme pornographic images depicting persons performing acts of intercourse or oral sex with animals.
7. The judge passed concurrent sentences of 32 months on counts 1, 3 and 4 with 6 months to run concurrently on count 2. Subsequently, the sentence on count 1 was amended administratively by the judge to one of 12 months.
8. We do not consider that it was appropriate to have amended the sentence under the slip rule administratively. Having regard to R v Dowling [1989] 88 Cr App R 88, any alteration in this type of sentence should have been done in open court so that justice may be seen to be done. Whilst we recognise that in this case the adjustment made did not impact on the overall sentence being imposed, it was a change of a type which should have been made in open court rather than administratively.
9. Matters came to light when police attended the Appellant's address on 21 October 2015 having become aware of his use of the internet. Devices were recovered from his home containing indecent images. In all, some 5,536 indecent images were recovered and categorised. They are reflected in the indictment. A further 12,000 similar images were not categorised due to the amount of time it would have taken to carry out that exercise. The judge indicated that in the circumstances he would confine himself to the images referred to in the indictment when passing sentence. The images had been downloaded over a period in excess of 30 months. In total, there was more than 95 hours of category A moving images.
10. In interview the Appellant admitted going to websites, chatting to people and accessing indecent material through this route. He indicated that he was addicted to pornography, that he found sexual gratification in such images and that they involved images of children from 3 years of age upwards. In opening the case, the Crown pointed to the use of particular programmes to seek and access such material and the extreme youth of some children depicted as representing aggravating features.
11. The Appellant is 51 years of age and of previous good character. He had admitted his conduct during the police interview and promptly at court. He had subsequently attended a course to begin addressing his offending behaviour. The author of the pre-sentence report thought he might be amenable to further specialised sex offending work. He assessed the offender as currently posing a high risk of re-offending. The report recognised that custody was likely, but indicated that a suspended sentence with a rehabilitation activity requirement could be provided.
12. In passing sentence, the judge expressly said that he was going to sentence outside the relevant guideline. He said that he was entitled to depart from the guideline as it was in the interests of justice to do so. In this context, he referred to R v Nestoros [2015] EWCA Crim 1424 where the court held that, in a case involving possession of over 1 million images of which 10,000 had been categorised on a sample basis with 5,000 of those being in category A, it was entitled to depart from the guideline because of the huge quantity of images involved.
13. In this case, the judge did not justify going above the guideline range by reference to quantity. He said that the images he had seen were exceptionally depraved and for that reason justified moving outside the guidelines. In that context, we record that the judge was shown two films which he subsequently described in his sentencing remarks. One involved acts of torture and sexual depravity inflicted on a girl aged about 3 or 4. The second involved oral sex with a child who was clearly only a few months old. A police officer had described the former images in particular as the worst ever seen by Durham constabulary.
14. The grounds of appeal assert that the judge was wrong to sentence outside the sentencing guidelines and that the sentence was manifestly excessive for that reason. Insufficient weight had been attached to the mitigating factors of early admissions, the seeking of help to address the offender's addiction, the fact that this offender had himself been abused sexually when younger and that he had reported this abuse to the police and was to be a witness in a forthcoming trial.
15. It was also submitted that the judge was wrong in effect to create a "category A plus" type of case where the guideline had not done so. Moreover, the judge had inappropriately in sentencing remarks appeared to attribute the suffering of the children in the images to the Appellant's actions. Attention was drawn to R v Terrell [2007] EWCA Crim 3079 at paragraph 28 in this respect.
16. The Sentencing Council's sexual offences guidelines came into force on 1 April 2014. These images fell into possession category A, namely possession of images involving penetrative sexual activity or involving sexual activity with an animal or sadism. The approach under the guideline is to take the most serious of the offending images to determine the appropriate category. A lower category may be appropriate if the most serious images are unrepresentative of the offender's conduct.
17. In this case, the quantity of category A images is such that sentence was properly passed by reference to that category. A suggestion in the written grounds that, since category A images did not represent the majority of this Appellant's collection, they were not properly representative is unfounded. This Appellant had large quantities of images at all levels, but that does not render the category A material unrepresentative in the sense intended by the guideline where the category A material represents a significant collection at that level and offending on a substantial scale in its own right. The guideline does not require a mathematical or ratio apportioning exercise. It requires an exercise of judgment by the court in following the approach set out in the guideline.
18. The guideline indicates that for possession category A there is a starting point of 1 years' custody with a range of 26 weeks to 3 years. The guideline goes on to make clear that at step 2 a consideration of aggravating and mitigating features will result in an upward or downward adjustment from the starting point and may lead to the result that it is appropriate to move outside the category range.
19. In this case, we discern the following aggravating factors: age and/or vulnerability of children, the period over which the images were obtained and possessed, a high volume of images possessed, the collection of a very large quantity of moving images, involvement in a network or process facilitating the sharing of indecent images of children and a large number of different victims.
20. As to mitigation, we note in particular the absence of previous convictions, the early admissions to the police and steps taken to address offending after arrest. The judge considered that the aggravating factors outweighed the mitigation. We agree. In addition, there would be credit for an early guilty plea.
21. We do not think that it was appropriate in this case for the judge to have used his assessment of the particular depravity of one of the films shown to him as justifying moving outside the guideline. The Sentencing Council's guideline was created after extensive research and consultation. It simplified the process of categorisation of images and reduced the number of categories to three from the five previously identified by the Sentencing Guidelines Council. Such a process was universally welcomed as simplifying the process for investigators, lawyers and judges.
22. The guidelines lay down specific types of activity as the basis for each category. It is not for police officers or indeed judges to create their own separate categories above and beyond those created by the Sentencing Council. The dangers of inconsistency and subjectivity are all too obvious.
23. In this case, the position is compounded by the fact that the judge appears to have based his opinion on one such film which had been described in the police report as follows:

"[The officer] had stated that one image in particular is the worst image ever seen by Durham constabulary."

That is clearly a reference to the film shown to the judge. It is not on any view representative of the whole collection referred to in the indictment.

24. Step 2 of the guideline enables the court further to consider the content of images by including as aggravating features the age and/or vulnerability of the child, discernible pain or distress suffered by the child and depiction of an intoxicated or drugged child. If prosecutors wish to rely on such aggravating features, then it is open to them to do so by reference to the analysis of the images. This must be done in a way which addresses the categories and aggravating factors identified in the sentencing guideline rather than by applying a gloss to the identified categories.
25. There is a mechanism which may assist in this process; the Child Abuse Image Database (CAID). It deals with individual images but not movies and to that extent is limited, but nonetheless is clearly a very useful resource. This is a national database intended to reduce the need for police officers or prosecutors repetitively to view large numbers of images. It enables images on the database to be identified uniquely and then later reviewed at speed. Once an image has been graded separately by three police forces, it is stored on the database as an approved "trusted" grade. The database recognises indecent images, identifies them individually and retains a record for future comparison.
26. Since late 2015 police forces have had access to this database. It does not appear to have been used in this case. The Crown Prosecution Service has given guidance as to the use of the database. That guidance states that there should be sufficiently detailed descriptions of representative images which include any factor relevant to sentence and cites the guidelines' three aggravating features mentioned earlier in this judgment. It seems to us that use of that sort of process, where practicable, is highly desirable.
27. We are not persuaded that in the particular circumstances this judge was entitled to go outside the category range based on his assessment of the depravity of one film which was not shown to be representative of the collection.
28. We do not think it necessary, save in the most exceptional circumstances or where there is serious dispute as to the categorisation of images, (which of itself should be extremely rare), for a judge to have to view the materials. A categorisation exercise properly carried out and set out in witness statements and/or schedules should obviate that. If on appeal a single judge grants leave, there should normally no need to require an officer to attend this court with the material for the court to view.
29. We are unpersuaded by the criticism in the written grounds that the judge wrongly placed emphasis on the harm committed by this sort of offending. Reliance was placed on paragraph 28 of R v Terrell. Terrell was concerned with the applicability of the dangerousness provisions of the Criminal Justice Act 2003 in cases of possession of child pornography. In that case, it was held that the lack of proximity between the offending and the risk of future harm meant that the dangerousness threshold was not met in the circumstances. That will not necessarily always be the case. For a recent example, see R v Richardson [2016] EWCA Crim 146.
30. Terrell is not authority for the proposition that this type of offending does not cause harm, nor is it authority for the proposition that a judge cannot take that harm into account when sentencing. There is plainly a degree of indirect harm caused by downloading by playing a part in perpetuation of a market which will lead to further abuse of children.
31. The judge was entitled to refer to this and we do not consider that his sentencing remarks attached undue weight to this factor. Ordinarily this sort of harm in a downloading case should be regarded as already being reflected in the sentencing level resulting from application of the guideline, but there is nothing wrong in judges referring to this type of harm caused by this type of offending.
32. We return to our earlier analysis of the aggravating and mitigating features. It seems to us that the number and weight of aggravating factors based on the guideline and on an overall assessment of the material, as opposed to a single video, are significant and operate to take this case beyond the upper end of the possession category A sentencing range of 3 years.
33. The judge identified a starting point of 4 years 6 months before making reductions for mitigation and giving full credit for guilty plea. We consider that the resultant sentence of 2 years and 8 months was firm, and that some judges might have attached more weight to the mitigation, but it was not manifestly excessive.
34. In those circumstances, and notwithstanding that we have approached the matter differently from the judge, there is no basis for interfering with the sentence and the appeal is dismissed.