Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_43.html
Cite as: [2007] HCJAC 43, [2007] ScotHC HCJAC_43, 2007 SCL 96, 2007 GWD 26-454

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

C. G. B. Nicholson, Q.C.

[2007] HCJAC43

Appeal No: XC 199/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL

AGAINST SENTENCE

BENJAMIN ARTHUR DANIEL HUGHES

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: Anderson; Castle Law

Alt: Galbraith, A.D.; Crown Agent

20 July 2007

[1] On 27 December 2006 at Edinburgh Sheriff Court the appellant, Benjamin Hughes, pled guilty to two contraventions of the Civic Government (Scotland) Act 1982 ("the Act"). Charge 1 libelled that between 28 February and 28 April 2006 the appellant distributed or showed indecent photographs or pseudo-photographs of children, contrary to section 52(1)(b) of the Act. Charge 3 libelled that on 17 May 2006 he had in his possession indecent photographs or pseudo-photographs of children, contrary to section 52A(1) of the Act. The plea was tendered at a first diet.

[2 ] On 2 March 2007 the sheriff sentenced the appellant to two years imprisonment, with effect from that date. The sheriff indicated that the sentence had been discounted from three years in respect of the appellant's early plea and co-operation with the authorities.

[3 ] The fact that the appellant had possession of pornographic images of children was drawn to the attention of the police by a flatmate of his, whose computer he was using. Investigation revealed that over the period mentioned in charge 1 he had sent to other parties some 86 such images. The Crown narrative does not appear to have contained an analysis in accordance with the Oliver categories (R v Oliver [2003] 1 Cr App R 28, paragraph 10) of the material distributed. In respect of charge 3, the total number of images possessed was 376, and of these 191 were in Oliver category 1, 42 were in category 2, 45 were in category 3, 96 were in category 4 and three were in category 5.

[4 ] The sheriff, in his report, explained his reasons for imposing the sentence he did in the following terms:

"I took the view that this was a very serious matter and did so on the simple basis that this is not a victimless crime as is sometimes believed by offenders but a crime in which there are child victims in the context of the original acts which resulted in the images being available. Further, this was not a situation where the appellant simply viewed the images, it was one where he downloaded, viewed, stored and then, most significantly, distributed the images to others and the images involved were both still and moving. I was also concerned that in a two month period he distributed, discussed and exchanged 86 images with others. It was also of concern that his computer records showed that he was searching for images of young persons of a pre-teen age and he admitted that he had viewed images of children aged 6 and upwards committing sexual acts with adults. The images at levels 4 and 5 were, in my view, significant and although I accept that these are always extremely difficult cases to sentence, this did not appear to me to be a case which could be regarded as anything other than of significant gravity. I came to the view that it could not be dealt with appropriately by the imposition of a community based disposal and I took the view that a sentence in the order of three years' imprisonment was the appropriate disposal. From that I deducted one year as a plea discount and imposed a two year sentence".

[5 ] The appellant is twenty-five years of age and is married. He has no previous convictions. In his Note of Appeal and in the written submissions presented under Rule 15.16, it was submitted on his behalf that the sheriff had erred in imposing a custodial sentence and that the appropriate sentence would have been a probation order with a condition requiring the appellant to perform unpaid work in the community. At the hearing of the appeal, however, Mr Anderson, who appeared for the appellant, presented a modified position. In doing so he relied upon two reports. The first was one from a counsellor, Robin Altwarg, whom the appellant had consulted on his own initiative in June 2006 for help in understanding why he had offended as he had and how he might avoid such offending in the future. The second was a report very recently obtained from Rachel Roper, a senior psychologist with the Scottish Prison Service at H. M. Prison Edinburgh. Ms Roper is the Treatment Manager in charge of the Rolling STOP programme at the prison. She indicated in her report that the appellant commenced the programme on 14 May 2007 and to the date of her report (10 July) had attended every available session, a total of nineteen sessions. She reported that until the programme had been completed it was not possible to comment fairly on the appellant's progress. However, she said:

"I feel it prudent to point out that research has shown that group members who discontinue treatment (for any reason) are at a higher risk of re-offending and for [the appellant] to complete the programme he needs to remain in prison until September 2007."

In the light of that observation in particular, Mr Anderson departed from the submission that a non-custodial disposal would be appropriate, but submitted that the length of the sentence could and should be reduced to one which would allow the appellant to complete the RSTOP programme but not require him to remain in custody thereafter.

[6 ] In our opinion, the sheriff was right to regard this as a case of sufficient seriousness to require a custodial sentence. Applying the guidance to be derived from Ogilvie v H. M. Advocate 2002 JC 74 and Oliver, we take the view that the features of the present case that make a custodial sentence necessary and appropriate are the distribution of a significant number of images, and the fact that the range of images possessed included a number in category 4 and a few in category 5. There remains, however, the question of how long the sentence of imprisonment requires to be.

[7 ] We consider that it is significant mitigation that the appellant had sufficient insight to realise for himself the need to address his behaviour and seek help in identifying why he had offended and how he should avoid future offending. The appellant has been fortunate to have had made available to him in prison participation in the Rolling STOP programme. While we accept that it is too early to make a final assessment of the appellant's progress, we are persuaded in the circumstances that his prison sentence would be of sufficient length if it were such as to permit him to complete the programme which he has begun.

[8 ] In the result, therefore, we shall allow the appeal, quash the sentence of two years imprisonment imposed by the sheriff, and substitute a sentence of sixteen months imprisonment. That sentence is calculated on the basis of a starting point of two years, and the same percentage discount in respect of the appellant's early plea as the sheriff applied, namely one third. It will permit completion of the Rolling STOP programme before the appellant becomes due for release.