Scottish High Court of Justiciary Decisons

Taylor v. Her Majesty's Advocate [2002] ScotHC 61 (07 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord Kingarth	Appeal No: C760/01 OPINION OF THE COURT delivered by LORD HAMILTON in NOTE OF APPEAL by GORDON LENNOX TAYLOR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: A. Brown; Drummond Miller

Respondent: Targowski, Q.C., A.D.; Crown Agent

7 May 2002.

1. The appellant was charged on indictment that, between 15 October 1998 and

27 July 2000 at the house occupied by him in Paisley, he made indecent photographs or pseudo-photographs of children contrary to the Civic Government (Scotland) Act 1982, section 52(1)(a). He pled guilty to that charge. The sheriff in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 imposed an extended sentence comprising a custodial term of 12 months and an extension period of 2 years. Against that disposal the appellant has appealed to this court.

2. The appellant had been the secretary of a local Tenants' Association in the Paisley area. To allow him to perform his duties in that capacity there was made available to him in October 1998 a computer system, including a digital camera and scanner. It was kept at his home. It was understood that he would be free to use it for personal as well as for Association purposes. In June 2000 the appellant resigned as secretary and the computer system was passed to another member of the Committee of the Association. Although the appellant had taken steps prior to passing over the equipment to delete all his personal files, there was subsequently discovered stored on it a substantial number of file names suggesting child pornography. The police were alerted. On examination of the equipment there were located 7,000 images downloaded on the hard drive of the computer. These were all of a hard pornographic nature. Of them some 300 were of young naked females under 16 years in various poses or performing various sexual acts. A number of the latter portrayed such children performing sexual acts with adults. On searching the appellant's home police officers discovered another computer and various floppy discs and folders containing photographic images. These included pornographic images of children of approximately 10 years of age.
3. Before sentencing the sheriff obtained a social enquiry report to which was attached a report by the Pathways Partnership Project (a partnership among certain Social Work Departments concerned primarily with sexual abuse). The sheriff's attention was drawn to Ogilivie v. H. M. Advocate 2001 S.C.C.R. 792. He was invited to make a non-custodial disposal. The sheriff, for reasons which he gives, considered that, although the appellant was a first offender, there was no method of dealing with him which was appropriate other than by a custodial disposal. He also took the view that for the protection of the public an extended sentence should be imposed. He passed sentence on 8 October 2001.
4. Thereafter the proceedings had an unusual history. The appellant having been granted interim liberation by this court after spending 17 days in custody, the hearing of his appeal was fixed for 13 November 2001. On that date the appellant failed to appear but, while granting a warrant for his apprehension, the court did not dismiss his appeal. There were grounds for supposing that his non-attendance was related to his then personal circumstances, including the effect of a campaign of harassment directed against him since his conviction by persons in his neighbourhood. The warrant was not executed but on the next hearing of the appeal (on 6 December 2001) the appellant attended. At that stage the appeal was continued to allow a medical report to be obtained. A further social enquiry report was also ordered and obtained. When the case next called (on 2 April 2002) the appellant failed to appear. A further warrant was granted for his apprehension, the appeal again being continued. A few days later the appellant presented himself voluntarily to a local police station. It was stated on his behalf today that his failure to attend on 2 April was because he had taken unwell; there was also an indication that he had suffered a fit while in the police station. He was taken into custody on 9 April and has remained so until today. Since conviction he has spent in total 47 days in custody. A further social enquiry report dated 30 April 2002, prepared at the instance of its author, was made available to the court.
5. Mr Brown, on the appellant's behalf, submitted that the sentence imposed by the sheriff was, having regard to the guidelines for this type of offence laid down in Ogilivie, excessive and inappropriate. If in the circumstances of this case a custodial disposal had been appropriate (which was disputed), the term selected was excessive and could not be reconciled with the guidelines. In any event, in light of the history since the sheriff's disposal, including the time spent by the appellant in custody and the terms of the subsequent reports, the appropriate course now was to quash the sentence and to impose a probation order subject to special conditions. The relevant circumstances were that the appellant was a 47 year old first offender, that the period of the libel was 17 months, that the appellant had pled guilty (having from the outset admitted his guilt), that he had co-operated with the police and that the downloading, which had been from the Internet, had been solely for the appellant's personal gratification, there being no question of distribution to others on any basis. The concerns expressed by the sheriff about the terms of the report before him had proceeded on a partial view of those reports. Fully read, they indicated that the appellant was at low risk of re-offending, that he was beginning to accept responsibility for what he had done and such inability as he had to address his offending was only in the absence of help from public agencies. In any event, the more recent reports (including information originating from the specialist social worker) indicated that the appellant, although still subject to harassment and consequential difficulties about housing, was able and willing to address his offending.
6. In Ogilivie this court, against a background of a wide divergence of views among different sheriffs as to the appropriate level of sentence for offences under sections 52 and 52A of the Civic Government (Scotland) Act 1982 (as amended), laid down certain guidelines. In doing so it recognised that the taking of indecent photographs or pseudo-photographs, including downloading them from the Internet, was a serious abuse of the children in question who, were it not for the existence of consumers such as the appellant, would not be photographed in the way they had been. It disapproved of any suggestion that such offences were "victimless". We endorse that view.
7. The court, however, recognised that there was a spectrum of circumstances in which such offences could be committed and that the disposal in the individual case required to reflect the particular gravity of its circumstances. The appropriate range of sentences was discussed at paragraph [7] of the Opinion. In the course of its discussion the court observed that, where the relevant activity comprised the downloading of pre-existing images and where there was no distribution to others, it would only be in the most exceptional circumstances that any sentence in excess of 9 to 12 months would be imposed. In that case the court reduced to 3 months imprisonment the custodial term imposed for downloading 12,000 indecent images of young boys (including some depicting sexual acts by them with adult males), the concurrent 6 months being imposed for a repeated offence involving 10,000 images.
8. In this case the sheriff in his report to us does not suggest that the nature of the offence committed by this appellant was in itself more serious than that for which 3 months imprisonment was imposed in Ogilivie. However, he distinguishes between the background and character of the appellant in Ogilivie and the character of the present appellant. He construed the reports before him as giving rise to alarming concerns about the attitude of this appellant to the offences. The sheriff also expressed concern about the fact that the appellant lived next to a primary school and that he worked on a voluntary basis with young adults with learning difficulties.
9. The character of an offender and his attitude towards his offending are clearly relevant to disposal following conviction of offences of this kind - particularly when the court is considering what, if any, steps ought to be taken to protect the public against any risk of re-offending. But, having regard to the whole circumstances, we are of the view that the sentence imposed by the sheriff went significantly beyond the range indicated by Ogilivie. The particular nature of the offence was not more grave (and arguably less grave) than that for which 3 months imprisonment was imposed in Ogilivie. The character and the background of the two offenders, while showing some differences, were not so strikingly dissimilar that a substantially greater custodial term was appropriate in this case. There were at the time when the sheriff passed sentence undoubtedly concerns as to the appellant's attitude to his offending, although there is some force in the submission that, read as a whole, the reports then available were not as alarming as the sheriff construed them to be. The sheriff was, on the other hand, well entitled on the material before him to take a serious view of the appellant's conduct and of the continuing risk which he presented. In these circumstances a custodial disposal in the form of an extended sentence with a custodial term shorter than that in fact imposed might well have been appropriate.
10. However, since the sheriff's disposal there have been significant developments. The appellant has been in custody for a time equivalent to that which he would have served on undergoing a sentence of 3 months imprisonment. His attitude towards his offending has also undergone significant changes, particularly by a recognition that these offences constitute unacceptable behaviour. A situation now exists in which, in our judgment, the legitimate concerns about the appellant's original attitude and about the protection of the public in the future are best met by the making of a probation order which is subject both to the standard conditions and to certain special conditions, the latter being those suggested in a social enquiry report dated 27 December 2001. The special conditions are of the appellant's attendance at the Pathways Project in order to address the relative concerns on a planned, structured basis and of attendance for treatment at Renfrew Council on Alcohol (with a view to addressing the impact of his alcohol misuse as a destabilising factor in his lifestyle). The period of the probation order is 2 years.