Appellant: Paterson, Solicitor Advocate; Beltrami & Co Ltd

Respondent: Small, AD; Crown Agent

12 December 2013

[1] The appellant tendered a plea of guilty in Kilmarnock Sheriff Court at a diet fixed in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 in the following terms:

"between 16 May 2010 and 12 May 2012, both dates inclusive, at [the appellant's home] [the appellant] did take or permit to be taken, or make indecent photographs or pseudo-photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, section 52(1)(a)".

On 19 February 2013 the sheriff imposed a sentence of 36 months' imprisonment in respect of that charge. The appellant has now appealed against that sentence.

[2] The facts of the case, as set out in the sheriff's report, are as follows. On 16 May 2012 police officers in possession of a sheriff court search warrant attended at the appellant's home and carried out a search of the property in his presence. A laptop computer was found on the floor of the living room. It was removed and subjected to an analysis. The appellant was interviewed by the police, and admitted using the computer to download images of female children over a two-year period and storing them on the hard drive. He was of opinion that the ages of the children ranged from 1 to 15 years. He stated that circumstances had led him to become curious about images of children being abused, and that matters escalated from there. He agreed that child abuse was not a "victimless crime". He stated that, while he enjoyed looking at the images, he did not obtain any sexual gratification from viewing them. He further stated to the police that "what started as a wee bit of innocent kind of research ... turned into a habit really ... so I knew that I had to get help of some sort". He stated that he did not know how to seek such help as that would mean admitting to another person that he had a problem viewing images of this type. He was then arrested, cautioned and charged.

[3] The appellant's computer was analyzed by the digital forensics unit of Strathclyde Police. It had four user profiles, one of which was password protected. Within this profile, thousands of still and moving images of child pornography, ranging from levels 1 to 5, were discovered. A sophisticated folder structure was found; this included hundreds of folders and subfolders, some of which were named to indicate the content, such as "4YO" and "babytodd".

[4] The images recovered were summarized by the sheriff as follows:

Level 1: still 7834; moving 33; total 7867;

Level 2: still 614; moving 22; total 636;

Level 3: still 1897; moving 37; total 1934;

Level 4: still 937; moving 70; total 1007;

Level 5: still 50; moving four; total 54.

This was a total of 11,332 still images and 166 moving images. The total number of images was 11,498.

[5] The sheriff ordered a criminal justice social work report; the appellant had no previous convictions. A number of noteworthy points arise from the report. The appellant accepted full responsibility for his actions, but he minimized this by effectively denying that there was any sexual element in his offending behaviour. The reporter observed that the offences involved a high degree of planning, as the appellant selected times when his partner and children were in bed asleep or his partner was in hospital to view the images. The account that he used was password protected. The appellant was adamant that he did not gain any sexual gratification but used the images as a means of "coping with stress". He stated that he began viewing the images as research as he did not believe that media stories regarding child sexual abuse were true. He regularly viewed the images for several hours at a time and claimed that they were so disgusting and graphic that they enabled him to forget about the stresses of his life. The social worker who compiled the report observed that she found this statement difficult to believe and that she could not lend this explanation any credibility. The appellant recognized that he contributed to the harm of victims and that his behaviour exacerbated and perpetuated the sexual abuse of children. The reporter reviewed a range of possible disposals, including custody and participation on the Community Sex Offender Group-Work Programme. She observed that the appellant's statement that he continued to view the images as a way of managing stress and life problems might create a problem with the programme, although he met the criteria for inclusion.

[6] Two further documents were available. First, a letter was available to the sheriff from the appellant's partner's GP, in which he indicated that she suffered from a serious illness, Hodgkin's lymphoma, involving persistent lethargy and recurrent respiratory infections. She also suffered from a number of other complaints. Hodgkin's lymphoma is a very serious condition, and its effects placed a significant burden on the appellant of looking after the house and the children. A letter was also available from the programme coordinator of a charity known as Stop it Now!, which undertakes a national programme for the prevention of child sexual abuse. This body runs group work programmes, which would be available for the appellant. The appellant initially contacted Stop it Now!'s English helpline on 7 January 2013, although the initial police operation occurred in May 2012. The appellant has stated that the delay was caused because he was told by Stop it Now!'s helpline that the nearest service that he could obtain was in Sheffield and that no services available in Scotland. Stop it Now! are unable to confirm whether this is correct.

[7] The appellant was, however, interviewed by the national manager of Stop it Now!, who reported in a letter dated 20 August 2013. In this, the manager indicated that he found the appellant's movement into on-line offending to be a familiar one. He appeared to have found himself in a situation of sudden and continuous overwhelming stress in which he was unsupported and seriously socially and emotionally isolated. He seemed to be somewhat "delayed" in his sexual and emotional development, with the result that he had communication difficulties and rather sparse resources to apply when he came to confront serious adversity and uncertainty in his adult life for the first time. He was unable to self-regulate on-line behaviour and immersed himself indiscriminately in pornographic material. This behaviour subsequently became compulsive. The degree to which this reflected a pre-existing or prevailing sexual interest in children was not immediately apparent and therefore could not be assumed.

[8] In his report, the sheriff referred in some detail to the social work report. He records that the appellant's agent stressed that the appellant did not minimize his involvement in the offences, but only sought to show that he had obtained no sexual gratification. It was accepted that there must appear to have been a degree of planning involved. The appellant had no material previous convictions. In the social work report it had been suggested that the appellant had refused to participate in Child Protection Court Group meetings and was hostile towards certain social workers. The appellant's solicitor stated that the appellant had been surprised at that, and had been seeking help from the "Stop it Now!" organization; nevertheless, he acknowledged that the social worker who supervises the appellant's family is of the view that the family did not engage well with social services. The appellant's solicitor further acknowledged that, given the number of images across all ranges, the court would have to consider a custodial sentence. He nevertheless suggested a community payback order as an alternative.

[9] The sheriff stated that he considered alternatives to custody, as the appellant was effectively a first offender. Nevertheless, standing the nature of the present offence and in particular the number and level of images involved, he considered that only a custodial sentence would be appropriate. We may say that we agree entirely with that conclusion. The sheriff then made reference to HM Advocate v Graham 2010 SCCR 641, a case which we discuss below. He stated that the number of images in the present case could properly be said to be large, under reference to the criteria set out at paragraph [32] in that case. The sheriff also referred to the definitive guideline used in England and Wales, which had been approved in Graham at paragraph [29]. He noted that the appellant's activities had shown a degree of sophistication; he used protected files; there were hundreds of folders and sub-folders, some of which had been ascribed a title by the appellant (as described above at paragraph [3]).

[10] In the light of these considerations, the sheriff selected 42 months' imprisonment as a starting point, which he contrasted with the seven years selected in Graham. The important factor justifying the difference was that the appellant was not involved in the distribution of images but only in their possession. The sheriff then considered the question of discount. In the present case a plea of guilty had been tendered under section 76 of the Criminal Procedure (Scotland) Act 1975. Nevertheless, in Graham it had been indicated (at paragraph [45]) that an early guilty plea in cases involving child pornography will not have all of the merits that would attract the normal discount of one third, since usually there will be no question of saving vulnerable witnesses the ordeal of coming forward to give evidence, given that almost all of the material originates outside the United Kingdom. The sheriff accordingly gave a discount of six months, approximately one seventh, leaving sentence of 36 months' imprisonment.

[10] In presenting the appeal, it was accepted on behalf of the appellant that the number of images downloaded was significant. It was nevertheless submitted that 42 months was excessive as a starting point. Four main arguments were presented in support of this submission. First, it was emphasized that in the present case there had been no distribution or sharing of material. In that respect the case was clearly distinguishable from Graham, where there had been extensive sharing of material. Secondly, it was submitted that the sheriff had relied too much on the facts of Graham in drawing a comparison, and had not concentrated sufficiently on the definitive guideline used in England and Wales. When the guideline was considered, the present case could be seen to fall within category (d) (possession of a large amount of level 4 or 5 material for personal use) or category (e) (possession of a small number of images at level 4 or 5). Category (c) had a starting point of 12 months' imprisonment, and a sentence in the range of 26 weeks to 2 years' imprisonment would generally be appropriate. In the case of category (d) the starting point should be 26 weeks' imprisonment, and sentences in the range of from one month to 18 months' imprisonment would generally be appropriate. These pointed to a lower sentence than the sheriff had imposed. Thirdly, when comparison was made with Graham, apart from the lack of sharing or distribution, the number of images was much smaller; the number of images recovered in that case was 127,269, of which 80,205 were unique, whereas in the present case it was 11,498. Fourthly, the sheriff had referred to the use of passwords to protect files as showing the sophistication of the appellant's operation. The use of passwords for files was normal, however, and it was submitted that little could be taken from this feature.

[11] Despite the able submission presented by the solicitor advocate for the appellant, we are of opinion that the sheriff was fully justified in selecting 42 months as the starting point for his sentence. We must obviously follow the decision in Graham. In that case, it is stated (at paragraphs [23]-[25]) that the English definitive guideline is helpful in deciding cases dealing with indecent images of children. Nevertheless, at paragraph [24] it is stated that, in applying English guidance, "the court should not lose sight of its overall duty to assess the sentence that in all the circumstances of the case most justly reflects the culpability of the accused and the mitigating factors, if any, that are found to exist". At paragraph [29] it is stated that the definitive guideline "should be used in all cases for as long as it remains the pre-eminent classification of these offences in the United Kingdom". What this appears to mean is that the definitive guideline should be used for the classification of offences, that is to say, as an aid to drawing comparisons between the seriousness of different cases. It does not appear to mean that the recommendations on sentencing in the definitive guideline should be followed rigidly. That is apparent from the decision reached by the court, which is found at paragraphs [51]-[59].

[12] In Graham the respondent had downloaded over 74,000 unique still images of child sexual abuse and almost 1200 moving images over a period of 41/2 years. Images had been distributed over a period of four years. They were stored under specific subject headings, and the material was described as "vile". The court referred with approval to two earlier cases, Brown v HM Advocate, 2010 SCCR 393, and Jordan v HM Advocate, 2008 SCCR 618. In Brown, the appellant had made indecent photographs for two years and distributed them for 131/2 months; he had 4542 images across the whole scale. The sentence imposed was six years' imprisonment, discounted from 71/2 years for a guilty plea, with an extension period of four years. In Jordan, the appellant, who had previous convictions for sexual offences, downloaded over 8000 indecent images. He received an extended sentence of 10 years, comprising a custodial term of 4 years and 8 months and an extension period of 5 years and 4 months. The custodial term was discounted from a starting point of 7 years. After referring to those cases, the Lord Justice Clerk continued (at paragraph [55]):

"This appeal demonstrates how too rigid an adherence to guidelines can distort the sentencing exercise and produce an unjust result. If one looked no further than the Definitive Guideline, a sentence in the range of 2 to 5 years' imprisonment would seem appropriate. The sentence must, however, reflect the culpability of the respondent. Having regard to the number and nature of the images; the period of time involved; his sophisticated approach to the classification, storage and trading of the material, and to the decisions of this Court in Brown and Jordan, with which I agree, I consider that a cumulo sentence of seven years' imprisonment should be the starting-point on the charges with which we are concerned".

That sentence was reduced to six years and four months' imprisonment on account of the respondent's guilty plea.

[13] The respondent's activity in Graham appears to have fallen within category (b) (showing or distributing images at level 4 or 5) as well as a number of lower categories. The suggested sentence for category (b) is a starting point of three years' imprisonment, with a range of 2 to 5 years' imprisonment. The sentence imposed in Graham as a starting point, seven years, is above that range. Thus it seems clear that courts are not obliged to follow the recommendations in the definitive guideline in any rigid manner. The same point is made in the earlier English decision in R v Oliver, [2002] EWCA Crim 2766; [2003] 1 Crim App R 28, where Rose LJ stated (at paragraph 13) that guidelines are intended to help sentencers, and are not a straitjacket from which they cannot escape.

[14] In the present case the appellant did not distribute images, which is clearly a major point of distinction from Graham, and would justify a substantially lower sentence. Nevertheless, we note that in Jordan the appellant merely downloaded images, more than 8000 in total, and received a custodial term that was discounted from a starting point of seven years. He had previous convictions for sexual offences, however, and that was clearly a major factor in the decision. In the present case the sheriff's starting point was 31/2 years, or half the sentence in Graham. That is a significant reduction, and it is one which in our opinion reflects the relative seriousness of possession as against distribution of images. In this connection, we make two observations: first, it is the downloaders of indecent images who provide the economic foundation for child pornography; and secondly, the sharing of images with other users is very easy in an electronic medium. The solicitor advocate for the appellant submitted that the sheriff had relied too much on the facts of Graham in drawing a comparison and had not given sufficient attention to the definitive guideline. We consider that this criticism is misplaced; it is clear on a proper analysis of Graham that, while the definitive guideline is to be used in the classification of offences, it is not to be used as a definitive guide to the level of sentence that is appropriate. Thus the sheriff was entitled to do precisely what the court did in Graham and to have regard to previous decisions of the High Court rather than to follow rigidly the level of sentence suggested in the definitive guideline.

[15] The solicitor advocate for the appellant further submitted that under the definitive guideline the present case might be considered as falling within either category (d) (possession of a large amount of level 4 or 5 material for personal use) or category  (e) (possession for personal use of a large amount of material at level 3 or a small number of images at level 4 or 5), and that the appropriate sentence should therefore not normally exceed two years' imprisonment, with a starting point of twelve or six months for the two categories concerned. When the recommendations in the definitive guideline are compared with sentences that have been imposed or upheld in the High Court, however, it seems to us that they are distinctly low; this applies in particular to the sentence imposed in Graham and the decisions referred to in that case. For that reason we consider that the sheriff cannot be criticized for selecting a starting point above the recommendations in the definitive guideline. In this connection, it seems to us that the sophisticated method of storing files used by the appellant is of significance; we return to this matter below.

[16] It was further submitted on behalf of the appellant that, when comparison was made with Graham, the number of images was much smaller. The number of images recovered in that case was 127,269, of which 80,205 were unique, whereas in the present case it was 11,498. At first sight this comparison might seem striking. We consider, however, that in comparing numbers of images downloaded from the internet it is important to bear in mind the extraordinary ease of downloading large amounts of material of any kind from that source. Unlike traditional methods of copying, which require the reproduction of each image on to paper or similar material, downloading of electronically stored material is achieved by very simple acts on a computer, and the effort required to copy a thousand images is not significantly greater than the effort required to copy a single image. For that reason we do not think that the difference in the number of images between Graham and the present case is of great significance; in the present case a large quantity of offensive material had been downloaded, and a significant part of this material (at levels 3 and 4) involved sexual activity between adults and children.

[17] The solicitor advocate for the appellant criticized the sheriff for taking account of the use of passwords to protect files and showing the sophistication of the appellant's operation. He submitted that the use of passwords was normal, and little could be taken from it. It is clearly true that passwords are frequently used to protect files. Had that been all that was involved there might have been some force in the argument presented to us. Nevertheless, the sheriff in his report refers not only to the password protection of the account containing the pornographic material. He also refers to a sophisticated folder structure within that account. The account contained hundreds of folders and subfolders, some of which were named to indicate content. The examples given were "4YO" and "babytodd". It is clear from these examples that the storage by the appellant of the offensive material was a complex and relatively sophisticated operation, involving much more than the mere downloading of images. In our opinion the sheriff was clearly entitled to take account of this aspect of the case.

[18] We are accordingly of opinion that the sheriff was fully entitled to select 31/2 years as a starting point for the sentence. He rejected a submission that a community payback order might be imposed, and in our opinion he was clearly correct in doing so. The sheriff discounted the sentence by 6 months to 3 years on account of the plea tendered by the appellant under section 76 of the Criminal Procedure (Scotland) Act 1995. It was submitted to us that the discount given was inadequate, in view of the stage at which the plea was tendered. In Graham some guidance was given on the discounting of sentences for pleas of guilty. It was indicated (at paragraphs [44]-[46]) that a guilty plea in cases of this nature will not normally save vulnerable witnesses from the ordeal of giving evidence, and that accordingly an early plea of guilty would not normally have the merits that would attract a discount of one third. In Graham the discount given was one tenth; the plea appears to have been tendered at a stage later than the first calling of the case at a preliminary hearing. It was accepted that a plea at the latter stage might attract a discount of one quarter. Ultimately, however, the question of discount is a matter of discretion for the sentencing judge or sheriff. In the present case the appellant's plea was tendered eight months after his arrest. The sheriff allowed a discount of one seventh of the sentence. In our opinion discount at that level falls within the discretion of the sentencing sheriff.

[19] For the foregoing reasons this appeal is refused.