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Cite as: [2004] ScotHC 27

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McGaffney v. Her Majesty's Advocate [2004] ScotHC 27 (06 May 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord McEwan

XC1327/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST SENTENCE

JAMES BRANNAN McGAFFNEY,-

Appellant;

against

HER MAJESTY'S ADVOCATE,-

Respondent.

Appellant: Shead; Drummond Miller

Respondent: M. Hughes A.D.; Crown Agent

6 May 2004

[1] The appellant was indicted in Ayr Sheriff Court at the instance of the respondent on three charges, which were in the following terms:

"(001) between 3 May 1999 and 30 January 2003, ... at [an address in Prestwick] you ... did make 6602 indecent photographs or pseudo-photographs of children and 316 indecent moving image computer files of children; CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(a) as amended;

(002) between 25 December 2002 and 30 January 2003, ... at [the same address] you ... did have in your possession indecent photographs or pseudo-photographs of children and indecent moving image computer files of children with a view to them being distributed or shown by you to others; CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(c) as amended;

(003) between 25 December 2002 and 30 January 2003 ... at [the same address] you ... did distribute or show indecent photographs or pseudo-photographs of children and indecent moving image computer files of children to another or others whose identity is to the prosecutor unknown; CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(b) as amended.

[2] The appellant first appeared on petition on 31 January 2003. From the outset he made clear that he would plead guilty. A letter was submitted on his behalf on 17 October 2003 intimating in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 his willingness to plead guilty to charges in the aforementioned terms. The lapse of time between January and October arose in part from the time which required to be taken by the police to examine all of the relevant material held on the appellant's computer. The appellant appeared before the sheriff on 12 November 2003 when his pleas of guilty were tendered. The case was continued to enable reports to be obtained. On 10 December 2003 the sheriff imposed an extended sentence on the appellant. The form in which the sentence was expressed was complex and, in presenting the appeal, Mr Shead, who appeared for the appellant, drew to our attention that it did not coincide exactly with the form in which an extended sentence should be expressed (Criminal Procedure (Scotland) Act 1995 section 210A(2)). The complication arose from the fact that what falls to be regarded as the custodial term was made up of three separate sentences, namely one of nine

months imprisonment in respect of charge (1), one of eighteen months imprisonment in respect of charge (2) which was to be consecutive to the sentence in respect of charge (1), and one of eighteen months imprisonment in respect of charge (3) which was to be concurrent with the sentence in respect of charge (2). The result was an aggregate custodial term of twenty-seven months. To that the sheriff added what he called an extended sentence, but which ought to have been designated an extension period, of two years. All of that is clear from the court minutes. What is missing is the expression of the result in the appropriate statutory terms, namely that the sentence was an extended sentence of four years and three months, comprising custodial terms amounting in aggregate to twenty-seven months and an extension period of two years.

[3] The appellant's contention before us was that the aggregate custodial term was excessive. It was not contended that the sheriff had erred in making the concurrent custodial terms in respect of charges (2) and (3) consecutive to the custodial term in respect of charge (1). Moreover, the extension period was not challenged.

[4] The appellant was a computer support technician at Paisley University. He came to be suspected of possession of child pornography because his credit card details had been supplied to an American website for the purchase of such material. The police called at the appellant's home on 30 January 2003, and he admitted to them that he held still and moving images of children on his computer. On being interviewed, he admitted that he had carried on such activities for some three to four years, that he had downloaded indecent images of children from websites, and that more recently he had also acquired moving images of children being abused. The appellant further admitted that there was file-sharing software on the hard disk of his computer. This enabled him to make images available to others, by allowing them to access his website. He told the police that, while images were traded in that way, no money changed hands. The material recovered from the appellant's computer was not placed before the sheriff, but was described in a statement by Detective Constable Robert Johnston which was appended to the indictment. The sheriff in his Report sums up the material described to him as "a depraved and sickening catalogue of abuse of children from as young as two or three years of age upwards". The sheriff noted in particular that the moving images enabled the appellant to view in "real time" images of children being abused.

[5] On the appellant's behalf, it was submitted that the sheriff had accorded too much weight to the gravity of the offences. Although he had been referred to Ogilvie v HM Advocate 2002 SLT 1391, he had not followed the guidance given in that case. In paragraph [7] in that case the Court indicated that in dealing with an offence involving down-loading existing images from the internet, it would only be in the most exceptional circumstances that any sentence in excess of nine to twelve months would be imposed. Later in the same paragraph, adopting certain observations made by Kennedy LJ in R v Toomer [2001] 2 Cr App R (S) 26, the court indicated that the statutory maximum sentence should be imposed where there was a contested case, where there was evidence of commercial or large scale exploitation, and where the amount of the material was significant. Where a particular case fell on the scale between the two extremes of a non-custodial disposal and the statutory maximum penalty would depend on the circumstances. Here the sheriff, having selected in respect of charge (1) a sentence towards the upper end of the range identified as appropriate for an offence committed by merely downloading material from the internet, had then gone too far in treating the offences under charges (2) and (3) as "commercial". At page 3 of his report the sheriff treated trading, i.e. exchanging images, as commercial, and at page 5 he reiterated his characterisation of the offences as "commercial exploitation". There was, however, a distinction to be drawn, which the sheriff had failed to draw, between exchange or barter of images, and commercial exploitation in the sense of making money by the distribution of the images. The latter was more serious than the former. The sheriff had misdirected himself by eliding that distinction.

[6] It was further submitted that the sheriff had erred in leaving out of account the consequences which the appellant's offending had had on him in terms of loss of his employment and loss of his good name. He had also had to sell his house and move away from the area. It appeared from the terms of the sheriff's report at page 8 that the sheriff had regarded these matters as irrelevant to sentence, when in fact they ought to have been taken into account.

[7] Mr Shead further submitted that the sheriff had misdirected himself by failing to allow a discount in the sentences which he imposed to reflect the fact that the appellant had tendered a plea of guilty at an early stage (Du Plooy and Others v HM Advocate 2003 SCCR 640). In the light of the guidance given in Du Plooy, reasons required to be given for withholding a discount in a case in which a plea of guilty had been tendered under the section 76 procedure. Moreover, in the present case, the appellant had co-operated with the police from the outset of their investigation, and had indicated as early as possible his desire to plead guilty. Despite these circumstances, the sheriff appeared to have made no allowance for the early plea and co-operation. Nor had he given any reason for withholding a discount. In the circumstances, a discount of the highest level contemplated in Du Plooy as appropriate in the absence of exceptional circumstances, namely one third, should have been allowed in the present case.

[8] We consider first whether the submission that the sheriff failed to follow the guidance given in Ogilvie is well founded. Leaving aside for the moment the effect of the appellant's early plea of guilty, we do not consider that it can be said that the sheriff erred in selecting as his starting point a custodial term of nine months in respect of charge (1). The case involved a very substantial quantity of images. The libel covered a period of three years and nine months. The images were of an extremely depraved nature. The sheriff was, too, in our view entitled to regard the downloading of moving images as more serious than the downloading of still images. In all these circumstances, the custodial term selected by the sheriff in respect of charge (1) was in our opinion one which he was entitled to select.

[9] So far as charges (2) and (3) are concerned, the sheriff appears to us to have fallen into error in characterising the appellant's activities as "commercial", at least in the sense in which that term appears to have been employed in R v Toomer and in Ogilvie. It seems to us that it is clear that distribution of such images by exchange or barter is a more serious offence than merely downloading images for personal use. There is no dispute that the appellant's activities fell into that more serious category. On the other hand, it seems to us that it is yet more serious to distribute such images commercially, in the sense of for financial gain. The appellant's activities did not fall into that category. It does appear that the sheriff sought to equiparate distribution by exchange with commercial distribution, and to that extent may be thought to have misdirected himself. It is clear, however, that the sheriff was aware that the appellant did not sell the images for money. It is also clear that the sheriff did not regard the appellant's offences as meriting a sentence at or close to the then statutory maximum of three years imprisonment. It therefore appears to us that if the sheriff did misdirect himself as to whether it was appropriate to label the appellant's activities commercial, that misdirection did not lead him to treat charges (2) and (3) more seriously than was appropriate for a case of distribution by exchange involving the quantity and nature of material actually involved.

[10] Although Mr Shead did not challenge the fact that the custodial terms in respect of charges (2) and (3) were made consecutive to the custodial term in respect of charge (1), it is in our view necessary to bear in mind that the period libelled in charges (2) and (3) overlaps the period libelled in charge (1). In addition to that, we consider that the point made by Mr Shead about the sheriff's failure, when selecting the sentences to be imposed, to take into account the adverse impact which the detection of his offending has had on the appellant, was sound. His conduct has substantially disrupted his life, causing loss of his employment and forcing him to move house. These are in our view relevant circumstances to be borne in mind. If the matters mentioned in this paragraph had been the only matters which called for review of the sentences imposed by the sheriff, we would have reduced the custodial term in respect of charge (1) to eight months, and the custodial terms in respect of charges (2) and (3) to sixteen months, leaving an aggregate to two years.

[11] There remains to be considered the question of a discount in respect of the appellant's co-operation and early pleas of guilty. We are unable to detect in the sheriff's report any indication that he has allowed such a discount, or any reason for not doing so. The case for some discount is clear. However, although the plea was tendered at a very early stage, we consider that it does not possess all the features that would attract a discount of one third. In particular, there was no question in this case of saving vulnerable witnesses from the ordeal of giving evidence. We therefore consider that the appropriate discount would be 25%. The custodial terms are thus reduced to six months in respect of charge (1) and 12 months in respect of charges (2) and (3), making an aggregate custodial term of eighteen months.

[12] We shall therefore allow the appeal, quash the sentences imposed by the sheriff, and substitute an extended sentence of three years and six months made up of (a) custodial terms of (i) six months in respect of charge (1), twelve months in respect of charge (2) consecutive to the custodial terms in respect of charge (1), and twelve months in respect of charge (3) concurrent with the custodial term in respect of charge (2), and (b) an extension period of two years.